Separation of Powers

The purpose of this paper is to discuss the Separation of Powers dogma built into the goernance. Discussion will coer the origins of the doctrine, the factors that made it attractive to the knowledgeableness fathers, and the question of its usefulness in modern America. Political theorists as farther back as Aristotle had discussed the merits of various mixed bags of government. The point had been made over and over again that to have every(prenominal) governmental authority vested in a single person or organization is to make it easy for despots to get into designer.The to a greater extent a society and government aspires to democracy, broad- base suffrage, and respect for individual rights, the to a greater extent it would need to patter power over a number of institutions and officials. The hypothesis was web, but finding a practical way to apply it was non obvious. sexual congress under the Articles of Confederation had those aspirations, but found that the way it wa s attempting to disperse power instead produced paralysis.In fact, the Ameri privy experience with the Confederation Congress gave the callow United States a set of positive causal agencys for wanting dissolution of powers, to go along with the negative reasons derived from colonial experience under the British parliamentary administration. thither had once been a disengagement and balance of powers in the British carcass, at least for the upper classes. As long as the monarch and the reside of Lords still had self-governing 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 universe a republic, with unitary government, and even with military dictatorship, the parliamentary system was basically changed. The Restoration of Charles II did not reintroduce a balancing factor. Charles was dead clear that he reigned at the pleasure of sevens. His unfortunate bro ther throng did not understand this, and his obstinacy led directly to the Glorious alteration the day when fan tan simply had James arrested and exiled to France.One may suppose that what was virtually glorious ab come forth that revolution is that it was peaceful not a guess was fired, no unmatchable was even injured. (That James later invaded northern Ireland with a French mercenary army is a different issue, most governmental theorists seem to think. ) fan tan attached 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 legal philosophy it passed was lowest there was so no institution that could decl atomic number 18 a faithfulness passed by Parliament to be oun thoroughgoing. o The only chec k on its authority was the will of the voters who select the divisions of Parliament. This is a major reason wherefore 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 hideous acts agaainst the colonies, and it is Parliament that is macrocosm attacked.Americans generally fail to grasp how primalized 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 small topical anaesthetic governments at the t birth level. In the eighteenth century Parliament as well wanted there to be no independent legislative bodys in the colonies, and felt free to bowl over colonial legislative measures at its own pleasure.Of class, 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 in addition no distinction surrounded by legislative and executive powers. The Prime Minister is elected by the members of the legal age party in Parliament, and thus becomes the head of government. The Prime Minister? s cabinet functions essentially as the standing administrator deputation of the Parliament.It is structurally impossible for the Prime Minister to have iodin 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 unpack the Prime Minister from office and begin the process of setting up a radical government, that is, a bare-ass Executive Com mittee. The British Parliament 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 grim policy, as it has in Northern Ireland, whenever its members are overcome by face pack 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 in the midst of the interests of the states represented in Congress, as strong as surrounded by the state governments and the national government.However, what there was in dedicate was a neutralizing of power opposing forces or concepts, when embodied in the kindred(p) persons, instead of having their separate advocates, simply canceled each other fall out. It thus became clea r that there were positive reasons for wanting legal dissolution of powers in a new form of American government. A legislature could do a amend job of creating laws if it were not burdened with the task of overseeing their execution. Likewise, an executive sort could be much effective in carrying out laws if its authority were independent of the legislative branch.Similarly, there had to be an independent judiciary that could ordinance on legality, not only of how laws were carried out, but also of the laws themselves, so that Parliament? s pull someones leg of passing laws that were unchallengable could not be repeated in the American system. The new American system could not have been unitary, because from the beginning it was clear that one of the structural businesss 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 t his problem because it did not grant enough authority to the central government. Powers that are not equal cannot be balanced, and so cannot be set-apart the stronger will always tend to overcome the weaker. One lasting attainment of the Confederation Congress was its provision that either 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 give care 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 lord autonomy of the states, whereas the House reflects the actual growth of the population. It was equally brilliant to supply that, whereas the authority of Congress came from the states, the authority of the President would come from the tribe of the substantial union. Their powers would thus be equal, balan ced, and separate.It is sometimes argued that American government would be much efficient, could solve problems more quickly, if there were less separation of powers, if the checks and balances did not wearisome the wheels of progress. It is not clear how governmental powers could be made less separate, since the dogma has been woven so thoroughly into American government at every level. Aside from that, it seems unrealistic to suppose that the tender-hearted frailties which called for the separation of powers when the Constitution was compose 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 vista 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 p lan was to have them be of the same party. It is also vox populi that the deadlocks that occur under these conditions are a problem that must be puzzle out, for example, by having the President or a premier(a) be elected by the majority party in Congress.However, it is in truth 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 between the well-favoured 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 lot comment that America is the only democracy governed by two learn parties. ) There thus seems to be l ittle objective reason for monkey 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. modern 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 voice communication of Columbus and Vespucci first reporting their discoveries. It is informative to read the precise formulate of the Fundamental Orders of Connecticut (the first written state constitution), of the Articles of Confederation, and of the 1794 Treaty with the sextuplet Nations (of the League of the Iroquois). History should when possible be done with prima ry 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 stick abouts. 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 sample will discuss the doctrine of separation of powers, its meaning and importance at bottom 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 divisio ns of political powers between the three branches and based this model on his perception of the British underlying 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 impose the law, defend the state, and conduct internal policies. Finally, the Judiciary, or law enforcing function, which is the determining of polished 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 Legislatur e, Executive and the Judiciary should also all have equal legal stipulation so each could control the excessive use of power by another branch. TheBritishConstitutionis fundamentally different totheUS implicit in(p) model and its fragmented structure. TheAmerican model is a deliberately intentional political body constructed with precision bythe18th century cornerstone fathers and maintained tothepresent day by an entrenched codified document.By contrast, theBritish extreme model has evolved and adapted overthecenturies, deriving from statute law, customs and monarchical power among various sources. such(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 sanely blurred in comparison tothemore rigid US systemofgovernment. Indeed, some would say thatthebasic principlesoftheseparationofpowe rsare not particularisedally adhered to deep downthe British political model.Themost obvious evidenceofthis is reflected in Britains parliamentary systemofgovernment, as opposed to a presidential subject in the regular army, where theassemblies and executives are formally independentofone another and apiece elected. In practice this meat 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 doofLord Chancellor possessingthegreatest theoretical power, being partoftheexecutive (Cabinet), legislature (HouseofLords) an dtheheadofthejudiciary 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 withintheexecutive 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 noteworthy parliamentary majority, e. g. Labour since 1997, can maintain controlofboththe 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 bythegoverning administration in a way thattheUS Supreme Court could never be.Such trendsofexcessive executive power have been exacerbated by overriding 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 comportof1998, 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 by and by 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 boastful judicial challenges under human rights legislation occurred in December 2004, whenthe legality 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 practice on Human Rights, they do not havethe power to override.. that legislation.. (but)thecourts can declarethelegislation incompatible withtheEuropean regulation on Human Righ ts and returntheAct to Parliament for revision . Thus, a clearerseparationofpowersnow appears to be in place as a way outoftheHuman 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 plentiful in preserving fragmented government and civil liberties astheUS philippicofRights is, which it has been compared to.Indeed,thecurrent British Conservative opposition has even talkedofabolishing this legislation, and this would have implications for tacklingthe postureoftheseparationofintheUK. Britain modernised its constitutional model with further legislative and institutio nal reforms 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, i t is recognised 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 population of Separation of Power. Therefore, the doctrine of Separation of Power is deemed to be a rule of political wisdom.