Doctrine of Separation of Powers

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Doctrine of Separation of Powers or des pouvoirs means that one person or body of persons should not exercise all the three forms of power of the governance - Executive, Legislature and Judiciary. i.e there should not concentration of powers in the hands of any particular institution or agency of the Government.

  • The Legislature should be concerned with the making law but not in its implementation / administering it
  • The Administration (Executive) should not control the legislature nor should it over take the justice system because doing so it might lead to arbitrary and capricious justice.
  • The Judiciary should be independent of Executive and Legislation

The Doctrine says that, in a free democracy, these three functions are separated and exercised by three separate organs of the Government.

Contents

History

The history of the doctrine traces back to the days of Plato and Aristotle. John Bodin, Locke and Montesquieu further enhanced it in modern times.

Separation of powers and the supremacy of Judiciary during the 1700 has made the King subject to the law as made by the Parliament or the Courts. Despite this, the King has a power called Prerogative - to act according to his discretion for the public good, without the prescription of law.

The Rule of Law impacted the Administrative Law of England while the Doctrine of Separation of Powers impacted the Administrative Law of the Untied States.

Locke on the Doctrine

Locke differentiated between what he called:

  • Discontinuous Legislative Power: Time to time interference in general rule making power and not continuous.
  • Continuous Executive Power: All the powers of executive and judiciary
  • Federative Power: Power to conduct foreign affairs

According to Locke, the three powers of government are:

  • Making the laws
  • Carrying out (executing) the laws
  • Manage foreign and military affairs

According to him, the first should be separate from the other two but the latter should be headed by one and the same organ - the King. Justice is still the King's subject. The King always has Royal Prerogatives that can be used for the public good. Soon after Locke's Treatise of British Judiciary, the King was confined to Locke's federative power and barred from both making and applying law. This was followed by Montesquieu's Spirit of Laws (1748).

Montesquieu on the Doctrine

Division of power into:

  • General Legislative Power
  • Two-kinds of Executive Power
    • Executive power similar to Locke's federative power
  • Civil Law executive power that includes executive and judiciary power

Anglo-American position

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