Separation of Powers (Public Law )

Topics: Separation of powers, Constitution, Law Pages: 6 (2239 words) Published: March 22, 2013
The earliest government which is kingship as we all know of during Normandy times have inevitably becomes corrupt and passes into tyranny. The best men in the community then unseat the tyrant and institute an aristocracy. But their descendants are corrupted by the opportunity to gratify their desires and so become oligarchs. Thereupon the community overthrows the oligarchy and institutes a democracy. Next, the people are debauched by evil leaders, thus the end of the people brings in a monarch once more. It is recommended that the theory of the separation of powers grew out of the older theory of mixed monarchy as expressed by the Greek historian of Rome Polybius whose idea was simple. Instead of having an aristocracy, monarchy or democracy, a combination of any two of these forms of government would suffice to break away from this vicious cycle. However, the theory of the separation of powers as put forward by Montesquieu deals with the branches of government rather than the type of government. Lord Acton believed that 'Power tends to corrupt and absolute power corrupts absolutely'. Therefore, in order to eradicate the corruption of absolute power, Montesquieu identified three branches of government between which power should be allocated and separated: the executive which takes action to implement the law, defend the nation, conduct foreign affairs and administer internal policies; the legislative which makes law, and the judiciary which applies the law to determine disputes and punish criminals. According to the doctrine of the separation of powers, the executive cannot make law. Neither can the legislative determine disputes or any of the three branches exercise the power of the other. Nor can any one person be a member of any two of the branches. This is in order to protect our emancipation as according to

'When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty... there is no liberty if the powers of judging is not separated from the legislative and executive... there would be an end to everything, if the same man or the same body... were to exercise those three powers. Indeed that might be true and rather desirable. To attain a pure separation of powers in theory is feasible though in practice however is almost impossible. The closest constitutional arrangements to the doctrine of separation of powers are found in the United States of America, is where the Congress is elected separately from the President, the President can veto legislation passed from Congress if one third of the house agrees with him and the Supreme Court can declare the acts non constitutional of both Congress and President. The constitution of the United States is arranged in such a way as to allow a complex system of checks and balances between the three branches of government while maintaining a clear separation of powers between them. However on the other side of the Atlantic however ,perhaps due to the history of the evolution of the British constitution and the absence of a codified constitutional text - the emphasis are more on checks and balances rather than a pure separation of powers. Yet, according to Hilaire Barnett, the doctrine of the separation of powers 'runs like a thread throughout the constitution of the United Kingdom. It might be true that the doctrine of the separation of powers is deeply deep-rooted in our constitutional thought and tradition, but our constitutional arrangements and the implementation of these three powers in practice is far from separate. Sir Ivor Jennings interprets the doctrine of the separation of powers as suggesting that neither branch should execute the powers of the other, not that the three branches should not have any influence over each other. Sir William Blackstone seems to agree to some extend in suggesting that a complete separation of powers may lead to the dominance of the executive by...
Continue Reading

Please join StudyMode to read the full document

You May Also Find These Documents Helpful

  • Separation of powers Essay
  • Rule of Law and Separation of Powers Essay
  • Rule of Law and Separation of Powers Essay
  • Separation of Powers Essay
  • Separation of Powers Essay
  • Essay about Separation of Powers
  • separation of power Essay

Become a StudyMode Member

Sign Up - It's Free