Seperation of Powers

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Chapter 4: Separation of Powers

A.  Historical Development

1.      The Politics, Aristotle proclaimed that:
"There are three elements in each constitution in respect of which every serious lawgiver must look for what is advantageous to it; if there are well arranged, the constitution is bound to well arranged, and the differences in constitutions are bound to correspond to the differences between each of these elements. The three are, first, the deliberative, which discusses everything of common importance; second, the officials; the third, the judicial element."

2.      FW Maitland traces the separation of powers in England to the reign of Edward I (1272-1307): " In Edward's day all become definite- there is Parliament of the 3 estates, there is the King Council, there are well known courts of law"

3.      Bolingbroke observed that:
" Since this division of power, and these different privileges constitute and maintain our government, it follows that the confusion of them tends to destroy it. This proposition is therefore true; that, in a constitution like ours, the safety of the whole depends on the balance of the parts."

4.      Baron Montesquieu (1689-1755, living in England from 1729-31) stressed the importance of the independence of the judiciary in De l'Esprit des Lois(1748): "When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty...Again, there is no liberty if the power of judging is not separated from the legislative and executive. If it were joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. If it were joined to the executive power, the judge might behave with the violence and oppression. There would be an end of everything, if the same man, or the same body, whether of the nobles or the people, were to exercise those three powers, that of enacting laws, that of executing public affairs, and that of trying crimes or individual causes."

         Montesquieu observations in the English constitutions were inaccurate at the time, representing more a description of an idealized state than reality.          There has been exhibited a tension between the doctrine of separation of powers and the need for balanced government. o   An arrangement depending more on checks and balance within the system (as emphasized by Bolingbroke) than on a formalistic separation of powers.          Sir Ivor Jennings has interpreted Montesquieu's words to mean not that the legislature and executive should have no influence over the other, but rather that neither should exercise the power of the other.          Sir William Blackstone, a disciple (pupil) of Montesquieu: "partial separation of powers is required to achieve a mixed and balanced constitutional structure."

B.  The Contemporary Doctrine

         Separation of powers is isolation from each other would be unworkable, particularly under a constitution dominated by the sovereignty of Parliament.          3 possibilities of arrangement of Separation of Powers: o   No Separation of Powers

  absolute power residing in one person or body exercising executive, legislative and judiciary. o   Pure Separation of Powers
  power being diffused between 3 separate bodies exercising separate functions with no overlaps in function or personnel o   Complete Separation of Powers (United Kingdom current form of constitution)   powers and personnel being largely-but not totally-separated with checks and balance in the system to prevent abuse: mixed government and weak separation of powers.

C.  Defining the Institutions

1.The Executive
         Define as that branch of the state which formulates policy and is responsible for its execution.

2.The Legislature
         The Queen in Parliament is the sovereign law making body within the U.K.          Parliament comprises:-
o   The...
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