Separation of Powers

The purpose of this paper is to discuss the Separation of Powers teaching built into the organisation. Discussion will coer the origins of the doctrine, the factors that made it attractive to the mental institution fathers, and the question of its usefulness in modern America. Political theorists as utter close to back as Aristotle had discussed the merits of various phases of g everyplacenment. The point had been made over and over again that to have any governmental authority vested in a single person or organization is to make it easy for despots to contact big businessman.The to a greater extent than a society and government aspires to democracy, broad- base suffrage, and respect for individual rights, the much it would need to besprinkle power over a number of institutions and officials. The possibility was squ are away, but finding a practical way to apply it was not obvious. sexual congress under the Articles of Confederation had those aspirations, but found that the way it was attempting to disperse power instead produced paralysis.In fact, the Ameri usher out experience with the Confederation Congress gave the catechumen United States a set of positive crusades for wanting insularity of powers, to go along with the negative reasons derived from colonial experience under the British parliamentary trunk. there had once been a withdrawal and balance of powers in the British frame, at least for the upper classes. As long as the sovereign and the sign of the zodiac of Lords still had main(a) power and authority, they were able to counterbalance the House of Commons.But after the British Civil War, when Great Britain had the opportunity to experiment with organismness a republic, with unitary government, and even with military dictatorship, the parliamentary system was essentially changed. The Restoration of Charles II did not reintroduce a balancing factor. Charles was suddenly clear that he reigned at the pleasure of fantan. His u nfortunate brother pack did not understand this, and his obstinacy led directly to the Glorious gyration the day when fan tan simply had James arrested and exiled to France.One may suppose that what was most glorious ab go forth that revolution is that it was peaceful not a stroking was fired, no whizz was even injured. (That James later invaded northern Ireland with a French mercenary army is a different issue, most semi semi policy-making theorists seem to think. ) fan tan next simply hired William of Orange and his bride-to-be, Princess Mary, as co-monarchs, and arranged the glorious spectacle of their arrival in London, royal wedding, and double coronation. It would next hire George I of the House of Hanover. It was this Parliament, whose authority was absolute, that governed the American colonies.Any equity it passed was lowest there was thence no institution that could declare a honor passed by Parliament to be oun integral. o The only check on its authority was the will of the voters who choose the outgrowths of Parliament. This is a major reason why the American colonists made much(prenominal) an issue of their lack of representation in Parliament. The rhetoric against King George III in the Declaration of Independence is a vestige of British custom it is Parliament that has committed all the awful acts agaainst the colonies, and it is Parliament that is being attacked.Americans generally fail to grasp how substitutionized power had become (and to some extent still is) in the British system. There were and are no state governments in the British system, not for the shires, and not for what had once been independent countries there is only the national Parliament and fiddling local anaesthetic governments at the t feature level. In the eighteenth century Parliament overly wanted there to be no independent general assemblys in the colonies, and felt free to upset colonial legislative measures at its own pleasure.Of caterpillar tread, the colonial legislatures went ahead and acted independently in almost all local matters, but Parliament? s refusal to recognize their authority was another reason why the colonial legislators supported the American Rebellion, as the English called it. In the British Parliamentary system, there is besides no distinction in the midst of legislative and executive director powers. The Prime Minister is elected by the members of the mass party in Parliament, and thus becomes the head of government. The Prime Minister? s cabinet functions essentially as the standing executive delegation of the Parliament.It is structurally impossible for the Prime Minister to have ace policy and Parliament another. If a majority of members of Parliament disagree with the Prime Minister? s decisions, a vote of no confidence will immediately guide the Prime Minister from office and begin the process of setting up a brisk government, that is, a in the altogether Executive Committee. The British Par liament thus cannot be in a state of deadlock such as sometimes seems to paralyze the American government when the Democrats control Congress and the Republicans have the Presidency, or vice versa.However, there is also nothing in the British system to keep Parliament from pursuing a pitch-dark policy, as it has in Northern Ireland, whe neer its members are overcome by r turn up psychology. The unicameral Congress created by the Articles of Confederation resembled the British Parliament in not separating the legislative and executive powers. There was supposed to be a balance of power among the interests of the states represented in Congress, as sound as amid the state governments and the national government.However, what there was in go for was a neutralizing of power opposing forces or concepts, when embodied in the similar persons, instead of having their separate advocates, simply canceled each other out. It thus became clear that there were positive reasons for wanting t ime interval of powers in a new form of American government. A legislature could do a violate job of creating laws if it were not burdened with the task of overseeing their execution. Likewise, an executive starting time could be to a greater extent effective in carrying out laws if its authority were independent of the legislative branch.Similarly, there had to be an independent judiciary that could practice on legality, not only of how laws were carried out, but also of the laws themselves, so that Parliament? s wile of passing laws that were unchallengable could not be repeated in the American system. The new American system could not have been unitary, be hasten from the beginning it was clear that one of the structural jobs that the new country faced was how to balance the authority of thirteen independent nation-states against the authority of the union that they were jointly creating.The Confederation Congress did not solve this problem because it did not grant enough au thority to the central government. Powers that are not equal cannot be balanced, and so cannot be stray the stronger will always tend to overcome the weaker. One lasting attainment of the Confederation Congress was its provision that each new state to be admitted to the union would have to become fully self-sustaining as an independent nation-state before it could be admitted, so that all states inwardly the union would issue with each other as equals.One brilliant provision of the new Constitution was the compromise that created a bicameral legislature. The Senate, where each state has two votes, recognizes the received autonomy of the states, whereas the House reflects the actual growth of the population. It was equally brilliant to endure that, whereas the authority of Congress came from the states, the authority of the President would come from the tidy sum of the unanimous union. Their powers would thus be equal, balanced, and separate.It is sometimes argued that Ameri can government would be more efficient, could solve problems more quickly, if there were less separation of powers, if the checks and balances did not soggy the wheels of progress. It is not clear how governmental powers could be made less separate, since the commandment has been woven so thoroughly into American government at every level. Aside from that, it seems unrealistic to suppose that the valet frailties which called for the separation of powers when the Constitution was scripted have somehow been cured during the last two centuries.The checks and balances and separations of power in the American system have the overall net effect of forcing people to compromise, of preventing extremist approaches to social problems from gaining a foothold in government. It is sometimes musical theme that having Congress and the President be of different parties was intended to be one of the checks and balances in government. Not so the plan was to have them be of the aforesaid(prenomi nal) party. It is also sentiment that the deadlocks that occur under these conditions are a problem that must be work out, for example, by having the President or a atomic number 61 be elected by the majority party in Congress.However, it is actually not obvious that there is any problem to be solved here at all. When the President is of the majority party in Congress, then the compromises that lead to a legislative bill being passed and signed are made amongst the free and conservative members of the majority party. When the President belongs to the minority party, then these compromises are made between the members of the two parties. Although it is commonly thought that Democrats are much more liberal than Republicans, in fact the spectra of liberal and conservative members in each of the two parties are almost identical. Europeans a great deal comment that America is the only democracy governed by two bear parties. ) There thus seems to be little objective reason for t amper with the current usageal system of separation of powers. Bibliography Eliot, Charles W. , ed. American Historical Documents, 1000-1904. The Harvard Classics, ed. Charles W. Eliot. naked as a jaybird York Collier, 1910. Bibliography Eliot, Charles W. , ed. American Historical Documents, 1000-1904. The Harvard Classics, ed. Charles W. Eliot. New York Collier, 1910. This valuable volume can be found in many libraries.It gives the texts (sometimes in translation) of important documents that are discussed more often than they are read. There is a freshness to read the Vinland documents and the course of Columbus and Vespucci first reporting their discoveries. It is informative to read the precise verbiage of the Fundamental Orders of Connecticut (the first written state constitution), of the Articles of Confederation, and of the 1794 Treaty with the half a dozen Nations (of the League of the Iroquois). History should when possible be done with primary documents, of course this volume makes some of them easier to find.Separation of PowersThe separation of powers, as usually understood, is not a concept to which the United Kingdom constitution bandages. The doctrine of separation of powers was perhaps most thoroughly explained by the French Jurist Montesquieu (1989), who based his analysis on the British Constitution of the early 18th century. This act will discuss the doctrine of separation of powers, its meaning and importance at heart the United Kingdoms un-codified constitution. It will analyse the relationship between the Executive, Legislature and the Judiciary and how the United Kingdom does not strictly adhere to the doctrine.Montesquieu (1989) argued that to avoid tyranny, the three branches of Government, the Legislature, the Executive and the Judiciary should be separated as far as possible, and their relationship governed by checks and balances (Montesquieu, 1989), Montesquieu (1989) described the divisions of political powers between the t hree branches and based this model on his perception of the British extreme System, a system which he perceived to be based on a separation of powers between King, Parliament and the law courts. Originally it was the crowned head who had all the power, however, it has now been transferred.The Legislature, or law making function, which covers actions such as the enactment of rules for society. The Executive, or law applying function, which covers actions taken to maintain or apply the law, defend the state, and conduct internal policies. Finally, the Judiciary, or law enforcing function, which is the determining of civic disputes and the punishing of criminals by deciding issues of fact and applying the law. These functions of Government should be carried out by separate persons, or bodies and that each branch should carry out its own function.For example, the Legislature should not judge nor should the Executive make laws. The Legislature, Executive and the Judiciary should also a ll have equal legal military impersonate so each could control the excessive use of power by another branch. TheBritishConstitutionis fundamentally different totheUS original model and its fragmented structure. TheAmerican model is a deliberately designed political body constructed with precision bythe18th century instauration fathers and maintained tothepresent day by an entrenched codified document.By contrast, theBritish built-in model has evolved and adapted overthecenturies, deriving from polity law, customs and monarchical power among various sources. much(prenominal) contrasting constitutional evolution has led to differing interpretations and applicationsofthetheoryoftheseparationof powers. In essence,theseparationofpowersinside Britains constitutional system tends to be far less explicit and jolly blurred in comparison tothemore rigid US systemofgovernment. Indeed, some would say thatthebasic principlesoftheseparationofpowersare not detailally adhered to in spite of appearancethe British political model.Themost obvious evidenceofthis is reflected in Britains parliamentary systemofgovernment, as opposed to a presidential typecast in the ground forces, where theassemblies and executives are formally independentofone another and separately elected. In practice this promoter that intheUSA thePresident and membersofthelegislature (Congress) are elected separately and occupy completely different political branches, whereas intheUKthe most senior elected membersofParliament also formtheexecutive branchofgovernment.This more fused political structure leads to a situation where thePrime Minister and Cabinet (theexecutive) are also elected membersofParliament (legislature), creating a scenario that conflicts withtheessenceof theseparationofpowers. TheBritish political system also hadthehistoric positionofLord Chancellor possessingthegreatest metaphysical power, being partoftheexecutive (Cabinet), legislature (HouseofLords) andtheheadofthejudiciary simultaneously.Such a concentrationofpower is broadly prohibited intheUSA and other western democracies due tothenatureoftheir codified constitutions. Such constitutional developments have led tothecreationofpolitical circumstances intheUKwherebytheexecutive has gradually come to dominatethe legislature, despitetheBritish political traditionofsovereignty ostensibly residing in Parliament. This scenario has led to allegationsofexcessive power indoorstheexecutive andofan elective dictatorship, with public policy originating in cabinet and being presented to a party-dominated Houseof Commons.In such an environment, a government with a evidentiary parliamentary majority, e. g. Labour since 1997, can maintain controlof twainthe executive andthelegislature, with Parliament becoming a mere rubber-stampofapproval intheprocessofcreating legislation. Thejudiciary, symbolized bytheroleoftheLord Chancellor who is a memberoftheruling party, has overtheyears appeared to have been manipulated b ythegoverning regime in a way thattheUS Supreme Court could never be.Such trendsofexcessive executive power have been exacerbated by ascendant Prime Ministers such as Margaret Thatcher and Tony Blair. However, in recent yearstheBritish government appears to have accepted this constitutional imbalance and has taken specific measures to enhance its versionoftheseparationofpowers, addressing its rough edges and tackling someofthegrowing criticismsofexecutive dominance that has been a consequenceoftheUKs constitutional development.This process has been evident in a numberofkey constitutional reforms, starting withtheHuman Rights deed of conveyanceof1998, a pieceoflegislation that has created more explicit safeguards concerningthedistributionofpolitical power withintheUK. In particular it appears to have provided additionalpowerstothebranchofgovernment that is often overshadowed withintheUKs political system, namely thejudiciary. This Act has later on enforcedtheneed for British law- makers to strictly adhere totheprinciplesofhuman rights when passing legislation in order to removetheprospectsoflegal challenges at a later stage.After this Act was passed, oneofthemost salient(ip) judicial challenges under human rights legislation occurred in December 2004, whenthe equity Lords declared thatthedetentionofeight terrorist suspects without trial at Belmarsh Prison was in conflict withthesuspects human rights. In practice, as evident intheBelmarsh case, it means that legislation that derives from Parliament, underthe controloftheexecutive, can now be more closely scrutinised and challenged bythejudiciary, bolstered by an enhanced human rights framework.In this context, Parliament retains its sovereign status.. ifthecourts cannot reconcile an ActofParliament withtheEuropean multitude on Human Rights, they do not havethe power to override.. that legislation.. (but)thecourts can declarethelegislation incompatible withtheEuropean host on Human Rights and returntheAct to Parliament for revision . Thus, a clearerseparationofpowersnow appears to be in place as a resolutenessoftheHuman Rights Act.However, whiletheAct does provide added powersofjudicial scrutiny overtheexecutive and legislative branches in their law-making role, Parliament retains ultimate sovereignty and can change thelaw as it wishes, in spiteofjudicial criticism. In termsofignoring such judicial interventions, any government would probably cause itself considerable political damage in doing so, but it hastheright to do so nevertheless. In this respect,theUKHuman Rights Act is not as full-bodied in preserving fragmented government and civil liberties astheUS bill of fareofRights is, which it has been compared to.Indeed,thecurrent British Conservative opposition has even talkedofabolishing this legislation, and this would have implications for tacklingthe specialityoftheseparationofintheUK. Britain modernised its constitutional model with further legislative and institutional refor ms such astheConstitutional Reform Act (2005). A key elementofthis Act wasthecreationofa Judicial Appointments Committee that limited executive patronage in appointingthe judiciary, as well as a British Supreme Court, reflecting a more explicitseparationofjudicial.This new court has replacedtheLaw Lords asthehighest CourtofAppeal intheUK. TheLaw Lords have in many ways symbolisedtheblurringofthebranchesof government intheUK, with their dual role as interpretersofthelaw on behalfofthejudiciary, but also as law-makers due to their membershipofthe HouseofLords. This Act also significantly reducedthe powers oftheLord Chancellor, formerlythemost powerful position in British politics with a foothold in all government branches. TheLaw Lords and Lord Chancellor were increasingly viewed as nachronisms withintheUKpolitical system and subsequently deemed to be in needofsignificant reform as partoftheprocessofrefreshing Britains implementationoftheseparationoftheory. a In conclusion, it is reco gnised that certain degree of power and functions between the three organs do overlap, which suggest that although each organ functions within its own sphere, none is supreme. The sphere of power conceded to Parliament to enact law to regulate its own procedure is a clear example of the mankind of Separation of Power. Therefore, the doctrine of Separation of Power is deemed to be a rule of political wisdom.