• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

Doctrine of the separation of powers.

Extracts from this document...


SEPARATION OF POWERS Although of great antiquity the modern basis for the doctrine of the separation of powers can be traced back to the writings of commentators such as John Locke, who in one of his books written in 1690 observed that "the three organs of government must not get in one hand." The doctrine was further examined by the French jurist Montesquieu who based his exposition on the British constitution of the early 18th Century. In simple terms the doctrine recognises three functions of government, namely legislative, executive and judicial. In its purest form the doctrine holds that each of these three functions should be vested in separate organs of government, with no overlap, as to concentrate more than one function in any one organ presents a threat to individual liberty. If the doctrine is followed the same persons should not form part of more than one organ. For example ministers should not sit in parliament. One organ should not exercise the functions of another. In the United States Constitution of 1787 separation of powers was clearly expressed. Each of the three primary constitutional functions was vested in a distinct organ. ...read more.


The doctrine is reflected in the fact that many office holders who make up the executive are disqualified from membership of the House of Commons. This includes civil servants, members of the armed forces and police forces and other holders of office of profit under the Crown. Ultimately the House of Commons controls the executive as it can bring about the resignation of a government with a notion of no confidence. Less drastic control can be exercised in the form of question time and opposition days. The government also has several devices for curtailing parliamentary debate. The House of Lords even in its reformed form can only delay the passage of legislation. In theory it is for the executive in the form of the Cabinet to determine the policies of proposals to change the law, and for the judges to apply the law. The constitutional significance of this is that the judiciary being independent can apply the law regardless of whether the result is at odds with what the government of the day may desire. In Hinds V The Queen the Privy Council declared unconstitutional the 'gun court' set up in Jamaica because of the involvement of members of the executive in the sentencing of offenders. ...read more.


Parliament is subject to the law and the courts. The independence of judiciary can also be regarded as a safeguard of the doctrine. Security of tenure, freedom from criticism and judicial immunity ensure that judges are free to do their work ensuring the separation of powers. In the case of Duport Steels Ltd V Sirs both Lords Diplock and Scarman implied that the UK constitution is not based on a formal separation of powers as advocated by Montesquieu and practised in the United States. Rather both Law Lords are speaking in support of a well established convention of the UK Constitution, namely that Parliament makes the law and the judiciary interprets it. This convention derives from the concept of Parliamentary sovereignty in a system where the legislature is elected and accountable and in which the judiciary is required to be impartial and independent in the application of law. All in all it would only be fair to say that the doctrine of separation of powers is necessary in controlling the delegation of power among organs of government and ensuring the proper use of that power. We have examined the US and the British separation of power and although in the US things are clearer, we can say that power is properly controlled in both cases. If it wasn't results would have been obvious. ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our AS and A Level United States section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related AS and A Level United States essays

  1. How is Britain's constitution changing in the 21st century?

    Criticisms exacted on Labour's F.O.I. legislation are at its 'paternalistic model of open government' (Flinders, 2000, 428). There is a distinct variance between a government that is open, which was what the previous Conservative administration strove for, and Freedom of Information which Labour initially forwarded.

  2. Free essay

    Should the primary system be reformed?

    Secondly, the nomination is normally sewn up long before many states have a chance to go to the polls. John McCain had a grip on the GOP by the fourth of March, with ten states still remaining. Thirdly, momentum gained in the early states can help with both media perception

  1. The House of Commons avoids the

    The rigorous nature of the Congressional committee system (CCS) could be seen as advantageous since it allows detailed legislation on potentially complex topics to be written. However, the composition of the committee may not be unbiased, and once the legislation has been drafted it must be ratified by the rest of Congress.

  2. Critically examine the doctrine of the separation of powers, with particular references to its ...

    Would it be possible to cope without having different branches of power separated? The answer to the first question can be given if we create a parallel with economics. The division of powers can be compared to the division of labor.

  1. Larry Craig - Idaho Rests On His Shoulders

    The committee is also responsible for how the Food and Drug Administration operates, including the process for approving drugs and medical devices. So, I was not surprised to see he received contributions from insurance companies as well as other health sector entities.

  2. The Separation of Church and State in America.

    In the similar Washington bill there was no provision to allow religious employers the ability to deny their employees contraceptive coverage. Pro-life entities campaigned against the bill, claiming that their right to freedom of religion was being violated, when it is not.

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work