STRUCTURED QUESTION: THE JUDICIARY
Explain the theory of the separation of powers in the Judiciary.
The doctrine of the separation of powers was first put forward by a French political philosopher named Charles de Secondat Montesquieu in 1748 in his treatise De l'esprit des lois.1 He stated that the liberty of the individual is secure only if the three primary organs of the state (legislative, executive and judiciary) are distinct and independent in both function and in persons. This produces institutions that are relatively independent from one another and supports a system of checks and balances, preventing any one branch of the state from dominating the others. In countries with a parliamentary government, the executive and legislature are combined and have overlapping functions. In the UK, the executive, formed from the majority in Parliament dominates the legislature. The judiciary, however, does stand to one side and is largely independent of the legislative and executive processes, although the head of the judiciary, the Lord Chancellor, is a member of the Cabinet (executive) as well as the presiding officer in the House of Lords (legislature).
The three 'arms of the state' all play different roles in the legal system. The legislative (Parliament) is responsible for the making of new laws and the repealing or amending of those already in existence. The executive (Government) is responsible for suggesting new laws to the legislative and administering and managing existing laws. The judiciary (Court System) is responsible for applying the law in settling legal disputes by interpreting legislation so as to enforce the intention of Parliament. Montesquieu's work was also instrumental in the writing of the Constitution of the United States of America. His influence is evident today by the formal separation of Congress, President and Supreme Court. Britain has no such single written document containing the British Constitution. It is composed of various documents, court decisions and unwritten rules known as conventions. A large part of the British Constitution is contained in the English Magna Carta and the Bill of Rights of 1689. There have long been complaints that the unwritten constitution is out-dated in a modern society and has also been widely argued that the absence of written rights for the citizen makes it easier for these rights to be infringed.2 This has recently changed somewhat with the introduction of the Human Rights Act which does detail the rights of individuals, therefore allowing the English courts to act on infringements of those rights rather than having to rely on the European Court of Human Rights.
Explain the theory of the separation of powers in the Judiciary.
The doctrine of the separation of powers was first put forward by a French political philosopher named Charles de Secondat Montesquieu in 1748 in his treatise De l'esprit des lois.1 He stated that the liberty of the individual is secure only if the three primary organs of the state (legislative, executive and judiciary) are distinct and independent in both function and in persons. This produces institutions that are relatively independent from one another and supports a system of checks and balances, preventing any one branch of the state from dominating the others. In countries with a parliamentary government, the executive and legislature are combined and have overlapping functions. In the UK, the executive, formed from the majority in Parliament dominates the legislature. The judiciary, however, does stand to one side and is largely independent of the legislative and executive processes, although the head of the judiciary, the Lord Chancellor, is a member of the Cabinet (executive) as well as the presiding officer in the House of Lords (legislature).
The three 'arms of the state' all play different roles in the legal system. The legislative (Parliament) is responsible for the making of new laws and the repealing or amending of those already in existence. The executive (Government) is responsible for suggesting new laws to the legislative and administering and managing existing laws. The judiciary (Court System) is responsible for applying the law in settling legal disputes by interpreting legislation so as to enforce the intention of Parliament. Montesquieu's work was also instrumental in the writing of the Constitution of the United States of America. His influence is evident today by the formal separation of Congress, President and Supreme Court. Britain has no such single written document containing the British Constitution. It is composed of various documents, court decisions and unwritten rules known as conventions. A large part of the British Constitution is contained in the English Magna Carta and the Bill of Rights of 1689. There have long been complaints that the unwritten constitution is out-dated in a modern society and has also been widely argued that the absence of written rights for the citizen makes it easier for these rights to be infringed.2 This has recently changed somewhat with the introduction of the Human Rights Act which does detail the rights of individuals, therefore allowing the English courts to act on infringements of those rights rather than having to rely on the European Court of Human Rights.
