Separation of Powers Free Essays

The functions of the government are vast and varied. It is necessary to entrust these functions to specific organs, so that the responsibility for performing these functions may be effectively fixed. The division of governmental power under any constitutions may be of two kinds; the functional division such as legislative, executive and judicial and the territorial division of federalism. We will write a custom essay sample on Separation of Powers or any similar topic only for you Order Now Thus structurally considered government consists of three branches having for their functions (i) legislation or law meaning (ii) their execution or administration and (iii) interpretation of these laws. The three branches to which these functions belong are known as the Legislature, the Executive and the Judiciary respectively. Political liberty in a state is possible when restraints are imposed on the exercise of these powers. The functions of the government should be differentiated and assigned to separate organs to limit each section to its own sphere of action. So that these organs independently interact between themselves. This is what is known as the theory of separation of powers. Montesquieu, the celebrated French Scholar asserted that concentrated power is dangerous and leads to despotism of government. As a check against this danger he suggested to separate the functions of executive, legislature and the judiciary so that one may operate as a balance against the other. However Montesquieu was not the first scholar to develop the theory of separations of powers. Its origin can be traced back to Aristotle, the father of Political Science. Of course he did not discuss the issue in great details. He only analysed the functions of the three branches of government, the deliberative, executive and the judiciary without suggesting their separation. Besides many other philosophers at a later stage from thirteenth century onwards gave some attention to the theory of separation of powers. Jean Bodiri one of the earliest thinkers of the modern period sees the importance of separating the executive and judicial powers. But actually it acquired greater significance in eighteenth century. John Locke was one of the eighteenth century philosophers to pay greater attention to the problems of concentration of governmental power. He argued that the executive and legislative powers should be separate for the sake of liberty. Liberty suffers when the same human being makes the law and executed them. The Theory : Montesquieu, the noted political philosopher of France is regarded as the chief architect of the principles of Separation of powers. He in his book â€Å"The Spirit of Laws† published in 1748 gave the classic exposition of the idea of separation of powers. During his days the Bouborne monarchy in France had established despotism and the people enjoyed no freedom. The monarch was the chief law giver, executor and the adjudicator. The statement by Louis XIV that ‘I am the state’ outlined the character and nature of monarchial authority. Montesquieu, a great advocate of human dignity, developed the theory of separation of powers as a weapon to uphold the liberty of the people. He believed that the application of this theory would prevent the overgrowth of a particular organ which spells danger for political liberty. According to him every man entrusted with some power is bound to misuse it. When the executive and the legislative powers are given to the same person there can be no liberty. Because it is apprehended that the same person may enact oppressive laws to execute them whimsically. Again there is no liberty, if the judicial power is not separated from the legislature and executive. If the judicial and legislative powers are exercised jointly the life and liberty of the subjects could be exposed to arbitrary control; for the judge could then be the legislator. If it joined to the executive power the judges might behave with violence and oppression. If the same person or body of persons exercise these three powers that of enacting laws, executing them and of trying the cases of individuals, he maintained, that could spell the doom of the whole system of governance. In simple words Montesquieu’s view is that concentration of legislative, executive and judicial functions either in one single person or a body of persons results in abuse of authority and such an organisation becomes tyrannical. He argued that the three organs of government should be so organized that each should be entrusted to different persons and each should perform distinct functions within the sphere of power assigned to it. Disadvantages : Government is an organic unity. The various parts are closely interwoven. Therefore absolute separation of powers is both impossible and undesirable. In every modern government the executive has some kind of law making power to fill the gaps in the structure. Finer observes that rule making is no more or less than secondary legislation. The legislature in almost every country has to perform some judicial function by way of trying of impeachments. Maclver feels that this theory of separation of powers leads to isolation and disharmony. The various branches of the government tend to exhibit a sense of understanding and cooperation to achieve its end when they work together. But when they are separated to carry on exclusive work of their branch they become arrogant and refuse to work with other branches of government. This gives rise to lot of administrative complications. Every branch suffers from the vice of exclusiveness leading to loss of cooperation and harmony producing inefficiency of the government. The theory of separation of powers which upholds the system of checks and balances for the sake of equality of powers is based an wrong assumptions. It is not possible to accept the view that all organs of government mutually check each other. The theory also makes the mistakes in assuming that all the three branches of government are equally powerful. But precisely this is not the case. With the growth of positive states the legislature has been reduced to a subordinate position paving way for the executive supremacy which largely restricts and regulates the former. ‘Finally, the relationship between public liberty and separation of powers is not very significant. Liberty of the individuals largely depends on the psyche of the people, their outlook, the existing institutions, traditions, customs and political consciousness. The people of Great Britain are not less free than that of U. S. A. because there is less separation of powers in the former. Yet however the theory of separation of powers is not altogether without any significance. The complexity of modern society and the accepted concepts of a welfare a state demand more and more action and service on the part of the government. The crux of the problem of modern government is to find a synthesis combining the answer to two needs, the need for the welfare of the state and the need for freedom for the people. The welfare state assumes concentration of power on the executive level and consequently supremacy of the executive over the legislative branch. Of course it becomes alarming unless controlling and balancing devices are properly developed to keep pace with the ever changing face of the executive power. The doctrine of separation of powers from that point of view because more important today that perhaps any other time. Points to Remember Montesquieu developed the theory of separation of powers. He pointed out that the legislative, executive and judicial powers of government should be vested in three separate organs. They should not be concentrated in the hands of one man or a group of men. Advantages ) Separation of powers according to Montesquieu is the best guaran ­tee of the liberty of people. ii) Separation of power promotes efficiency in the administration. Criticism i) Complete separation of powers is neither possible nor desirable. ii) Separation of powers is likely to lead to inefficiency in adminis ­tration. iii) The theory is based on the supposition that all the three organs of the government are equality impor tant, but in reality it is not so. iv) Liberty of the people largely depends more on factors like their psyche, political culture, consciousness, and institutions than separa ­tion of powers this is sept of power How to cite Separation of Powers, Papers Separation of Powers Free Essays â€Å"The ‘separation of powers’ is incomplete within the current unwritten UK constitution. † The ‘separation of powers’ is doctrine of the UK constitution first termed by Montesquieu, a French political philosopher, in his 1748 book De l’esprit des lois (The Spirit of the Laws) he argues that there are three bodies of government – the executive, legislature and judiciary – which each have a discrete area of power with clear functions that no other body can imitate: this is true ‘separation of powers’. The purpose of which is to limit state power so that no element has an abuse of power hence protecting civil liberties. We will write a custom essay sample on Separation of Powers or any similar topic only for you Order Now By Montesquieu’s definition, the separation of powers is incomplete as there is clear overlap between the different branches of government, notably the legislative and executive. Contrastingly, the revisionist definition of the separation of powers as, remarked by Lord Bingham, claims that while the doctrine of the separation of powers is weak by the terms of the classic characterisation, â€Å"the separation between the exercise of judicial powers on the one hand and legislative and executive powers on the other is total or effectively so† This convincing revaluation of the separation of powers principle indicates that under the new â€Å"partial† definition, the separation of powers is a clear, complete doctrine in the UK unwritten constitution. By Montesquieu’s characterisation, the separation of powers is incomplete within the current constitution as argued by Bagehot. In The English Constitution, Bagehot asserts that there is a â€Å"close union, nearly complete fusion of the executive and the legislative powers† and claims the Cabinet act as the connecting link by which he defines as â€Å"a committee of the legislative body selected to be the executive body†. This violates a pivotal principle of the separation of powers doctrine, as stated by Vile, that the persons who compose these three agencies of government must be kept separate and distinct. Thus showing the separation of powers is incomplete within the UK constitution. Furthermore, the overlap of the legislative and executive is shown in the fact that government ministers are drawn from either of the Houses of Parliament; Also, up to 2005, the Lord Chancellor held a position in all 3 branches of government: a Cabinet Minister, a member of the House of Lords and head of the Judiciary. These instances violate a key principle of the ‘true’ separation of powers: that no individual can be a member of more than one branch. Furthermore, Courts legislate in the sense that they evelop principles of the Common Law thus undertaking the functions of both the judicial and legislative branch. This serves as evidence that, in accordance with Montesquieu’s belief, the separation of powers is incomplete within the UK constitution. However, the government has introduced legislation in order to limit the overlap between the different branches of government. In order to prevent the executive branch dominating Parliament the House of Commons Disqualification Act, 1975 limits the number of ministers who sit in the House of Commons to 95 persons. This restricts the influence of the executive branch on the legislative process thus further separating the roles of each branch. Also, the Constitutional Reform Act reduced the powers of the Lord Chancellor which was frequently criticised as violating the doctrine of separation of powers, as well as the European Convention of Human Rights, by exercising executive, judicial and parliamentary functions. The Act ended the Lord Chancellors role as Head of the Judiciary with the creation of a new position: the Lord Chief Justice; the Act also severed the direct link between the Lord Chancellor and the speaker of the House of Lords. This indicates a shift towards a more distinct separation of powers in line with the view of Montesquieu thus completing the doctrine within the UK constitution. It is possible to assert that in the UK constitution, it is impossible to have a complete separation of powers because if each branch regulated its own actions, it could potentially lead to an abuse of power and thereby could lead to the violation of the rights and liberties of the public. This has led to the development of a system of checks and balances whereby each branch can monitor the actions of the other branches while still being confined to their specified parameters of power. For example, the judiciary act as a check on the Government by hearing challenges to executive decisions in judicial review cases by which the claimant feels the decisions made by the government are unreasonable or indicate an abuse of power. Judges can also consider whether the Government, or Parliament, has acted in a manner compatible with the European Convention on Human Rights. For example, in Equal Opportunities Commission v Secretary of State for Trade and Industry [2007], the Equal Opportunities Commission claimed that the Government failed to comply with its obligation to implement Directive 76/207/EEC (the Equal Treatment Directive of the European Union) when attempting to amend the Sex Discrimination Act 1975, a claim which was upheld by the High Court. The system of checks and balances is an integral part of the ‘partial’ separation of powers as it limits the amount of power possessed by each branch to ensure there is no dominant faction however still potentially infringes on another bodies role thus defying Montesquieu’s concept. On the other hand however, in the Federalist Paper 47, Madison argues that Montesquieu â€Å"did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other,† thus upholding the view that the separation of powers is complete within the UK constitution due to the operation of the checks and balances system. The checks and balances system also emphasises that judicial independence plays a pivotal role in the separation of powers in the UK constitution. Bagehot claims there is a near fusion of the legislative and executive branch therefore, it is essential that there is a check on the power exercised by these branches. The judiciary can effectively act as a check on the powers of the executive due to the Constitutional Reform Act 2010 which established a new Judicial Appointments Commission which ended the Lord Chancellor’s position as head of the judiciary and his power to appoint judges. Also, the creation of the UK Supreme Court assumed the power of the Appellate Committee of the House of Lords thus severing the connection between the judicial and legislative branches and indicating a shift towards a more independent judiciary. According to Lord Steyn, the constitutional principle of judicial independence within the doctrine of the separation of powers exists to prevent the rise of arbitrary executive power which, under the UK constitution, this system is total and effectively so. This statement supports the views of Lord Bingham as stated previously, which thus shows that though the English Constitution does not reflect the pure form of the separation of powers, it exists in a partial form whereby there is a clear separation between the judicial branch and the legislative and executive branches. To conclude, the conflicting definitions of the ‘separation of powers’ makes it difficult to evaluate the extent to which it is present in the UK constitution. If considering Montesquieu’s pure definition it is clear that the separation of powers is incomplete within the constitution, especially between the executive and legislative branches of government as supported by the arguments of Bagehot. However, considering the ‘partial’ doctrine, it is possible to assert that the separation of powers is very evident in the constitution especially considering the independence of the judiciary. Bibliography Bagehot, W (1873). The English Constitution. London: Chapman Hall. p48 Constitutional Reform Act 2005 [2005] s 2 De Secondat, Charles. Of the Laws Which Establish Political Liberty, with Regard to the Constitution. † In The Spirit of the Laws, Book XI. 1748. Accessed November 14,  2012. Director of Public Prosecutions of Jamaica v Mollison [2003] UKPC 6; [2003] 2 AC 411 at [13]. Elliott, Mark, and Robert Thomas. â€Å"The Constitution – Institutions and Principles. † Public law. Oxford: Oxford Universit y Press, 2011. p98. Equal Opportunities Commission v Secretary of State for Trade and Industry. Queen’s Bench Division (Administrative Court). 12 March 2007. Westlaw. [online]. Accessed 16 Nov. 2012. House of Commons Disqualification Act [1975] s 24(2)(1) Madison, J. (1788). The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts. Federalist Papers. 47 Parpworth, Neil. â€Å"Separation of Powers. † Constitutional and administrative law. 7th ed. Oxford: Oxford University Press, 2012. p29. Vile, MJC (1998). Constitutionalism and the Separation of Powers. 2nd ed. Indianapolis: Liberty Fund. p14. ——————————————– [ 1 ]. De Secondat, Charles. â€Å"Of the Laws Which Establish Political Liberty, with Regard to the Constitution. In The Spirit of the Laws, Book XI. 1748. Accessed November 14,  2012. [ 2 ]. Director of Public Prosecutions of Jamaica v Mollison [2003] UKPC 6; [2003] 2 AC 411 at [13]. [ 3 ]. Bagehot, W (1873). The English Constitution. London: Chapman Hall. p48 [ 4 ]. Vile, MJC (1998). Constitutionalism and the Sep aration of Powers. 2nd ed. Indianapolis: Liberty Fund. p14. [ 5 ]. House of Commons Disqualification Act [1975] s 24(2)(1) [ 6 ]. Constitutional Reform Act 2005 [2005] s 2 [ 7 ]. Equal Opportunities Commission v Secretary of State for Trade and Industry. Queen’s Bench Division (Administrative Court). 12 March 2007. Westlaw. [online]. Accessed 16 Nov. 2012. [ 8 ]. Madison, J. (1788). The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts. Federalist Papers. 47 [ 9 ]. Elliott, Mark, and Robert Thomas. â€Å"The Constitution – Institutions and Principles. † Public law. Oxford: Oxford University Press, 2011. p98. [ 10 ]. Constitutional Reform Act 2005 [2005] s 2 [ 11 ]. Parpworth, Neil. â€Å"Separation of Powers. † Constitutional and administrative law. 7th ed. Oxford: Oxford University Press, 2012. p29. How to cite Separation of Powers, Essay examples