Separation of Powers UK

musical interval of force outs UKWhat was the social occasion of the dissolution of sources as origin completelyy envisaged?How does it operate in modern-day practice? bank account Headers pull in been removed to show that sacred scripture count is non wounded by more than than 10%To answer these questions I get out need to name a few aboriginal concepts, startingly insularism of major world powers and what this opines- legal withdrawal of sources is the conceit that the trinity functions of organization Legislation, execution and adjudication should be dealt with by k right off a go away branches of government Legislature, administrator and Judiciary1. When it comes to the phrase Originally envisaged it has to be move arounded out who is cosmos referred to the- Montesquieu is the psyche generally linked with the phrase separation of powers which he wrote around in The inspirit of the Laws. I go away speak just about Montesquieu views in the first s ection of the es word. Originally Envisaged may just besides refer to the views of the founding fathers and in particular those that contributed to the Federalist papers as they wrote numerous times about the importance of the separation of powers. (To tackle how it was originally envisaged I will devise reference to documents written by these parties and extensively use quotes from The Spirit of Laws, The Federalist papers and the Ameri privy war paint to back up my points and to analysis what they originally envisaged) I will write about this in the section after discussing Montesquieu and his views on legal separation of powers. These two sections will answer the section of the question on how interval of Powers was Originally envisaged I will wherefore discuss what the object of separation of Powers was according with relation to Montesquieu The trigger Fathers. I will then go onto answer the second part of the question- Outlining where Separation of Powers is non creation strictly copyed and where problems exist within the system and where Separation of Powers is followed in modern America.Montesquieu is an important figure when discussing Separation of Powers due to his book The Spirit of the Laws in which he outlines why the Separation of Powers is necessary and how it should be separated. Montesquieu discusses how Democratic and profane states are non necessarily free Tis necessary that by the very(prenominal) disposition of things power should be a check to power2 In early(a) words thither should be checks and balances to ensure familiarity coffin nail exist. Ensuring Liberty is a key out theme in The Spirit of Laws and could be seen as the inclination of the Separation of powers according to Montesquieu. But to be able to branch if this operates successfully in contemporary practice we must look at we must look at how Montesquieu explains it- he uses the British disposition as his main display case3 seeing the British sy stem as peerless that was a free state4. He sees the reason for this is because of the independence that exists betwixt the different bodies- Legislative, Executive and Judiciary stating that There is no liberty, if the power of judging be not separated from the legislative and executive powers5 this system of power being keep by early(a) powers6 is the reason according to Montesquieu why the British formulateation could ensure Liberty. These regulations on power had in Montesquieus opinion the power to give notice corruption or tyranny as he believes that Every while invested with power is apt to abuse it7 This is an argument for the separation of powers as the rumor Every Man suggests that any person given absolute power will abuse it, It is important to note however this does not mean that Montesquieu favoured country he simply believes that as long as there is separation of powers liberty is ensured he even states that most Kingdoms of Europe get it on moderate govern ment8 Not because of any antiauthoritarian principle but because the prince who is invested in the first two powers, leaves the third to his subject9 (The third power referring to the Judiciary). Montesquieu places much emphasis on judicial independence, which is important to note as it will compose relevant when looking at how it operates in contemporary practice as the appointments by the executive to the Supreme Court may be a potential problem. Another point to note within this section is how separate Montesquieu intended the different bodies to be- whilst he stated that they should remain separate he too mentions that if The legislature think itself in danger by some(prenominal)(prenominal) conspiracy against the state It might authorise the executive power, for a brusk and limited time, to imprison suspected persons10 this suggests that whilst Montesquieu believed that separation was necessary he also believed that if necessary the different part of government should be able to interact in such a way if it is deemed necessary. It is also important to possess agnize that Separation does not mean that the 3 different parts will not be able to communicate, indeed Montesquieu believes it necessary for example the Judiciary to be informed of law from the legislature and that they must follow the exact letter of the law11.To summarise Montesquieus views on Separation of Powers I would say that he believes that the purpose of the Separation of the three bodies of government is to ensure that power is not abused, however as mentioned frontly there are some limitations to this separation which gutter be summed up by Montesquieu himself Should abuses creep into one part, they fire be meliorate by those that remain sound12. Montesquieu is important as he heavily enchantd the founding fathers during the creation of the Ameri usher out Constitution and it can be seen that the founding fathers have built upon Montesquieus writings in The Spirit of the Laws, It should be noted however that although Montesquieu was the first person to write about the Separation of in the way it is contemporary understood, there are numerous links to Polybius and the concept of a mixed record13, Polybius also mentions separate branches of government14 and as such is important to note along with Montesquieu when discussing separation of powers.I will now discuss what the grounding fathers (Specifically those involved with the draught and approval of the constitution) intellection of the Separation of powers as how they Originally Envisaged is crucial to answering the second part of the question, this section will be less detailed than the section on Montesquieu as they were heavily influenced by Montesquieu (Which I will prove later) so will share much of the same purpose and views on the Separation of powers. I will look at a few key Documents from the Federalist papers- 47 and 51- and also at the American Constitution, the Constitution should give an acuteness into what was originally envisaged and the Federalist papers should give more of an penetration into what the purpose was.for the first time the American constitution- the phrase Separation of Powers is not found in the constitution however the principles are prevalent throughout it and the influence of the concept of Separation of Powers strong, many of the constitutions of individual states specifically mention the need for separation of powers15 notably Virginia- That the legislative, executive, and judicial departments of the Commonwealth should be separate and distinct16. Although the American constitution does not cite anything quite as clear as Virginias section on the Separation of powers the way it is built is clearly shows the influence of Separation of powers with legislative power being granted to Congress in the first article All legislative Powers herein granted shall be vested in a Congress17 Similarly Executive power granted to the president The executive Power shall be vested in a President18 and Judicial power The judicial Power of the United States shall be vested in one supreme Court and in such inferior courts19. It is clear that whilst separation of powers is not mentioned as it is in the Virginian constitution the principle is swell and truly understood and represented by the Founding Fathers and the Constitution, these three quotes were taken from the first three articles respectively, so it can safely be assumed that the Separation of Powers in some form or another was an aim of the constitution. So as Originally Envisaged the constitution shows that three distinct branches were considered necessary, with regard to what the purpose of it was we need an insight into what the Founding Fathers considered, and the Federalist papers provide such an insight which is extremely useful when severe to find out the purpose of Separation of powers. I will now discuss the relevance of the Federalist papers and conclude on wha t they saw the purpose as.The Federalist papers were essentially pieces of propaganda designed to gain support for the constitution20, they were written by Alexander Hamilton, John Jay and James capital of Wisconsin21 who were all founding fathers- James Madison is of particular importance as he is considered the Father of the constitution and is verbalise to have played a Pivotal Role in the drafting of the document22, the papers were published anonymously but the two papers I will be looking at are said to be written by- 47 (Madison) 51 (Either Hamilton or Madison)23. The reason I have chosen these two papers is because they twain make mention of Separation of powers and as Madison is considered the Father of the constitution it will give an insight into what the purpose of Separation of Powers was as originally envisaged by the Founding Fathers in the Constitution. Firstly Paper 47, this paper by James Madison makes it clear what the purpose of Separation of powers is- it state s The preservation of liberty requires that the three great departments of power should be separate and distinct24 so like Montesquieu the purpose is Liberty, this paper also acts to support the idea that Montesquieu was a big influence on the American Constitution with the statement The oracle who is always consulted and cited on this subject is the far-famed Montesquieu25, as discussed in the section on Montesquieu there are caveats with the separation of powers and Madison also accepts and discusses these in this paper, using Montesquieu as his guide he considers the British constitution and how the three branches and not completely separate26. Paper 51 sets out in more detail how the separation of powers will work and further emphasises his purpose of support for the separation of powers The great difficulty lies in this you must first enable the government to prevail the governed and in the next place oblige it to control itself27 the important phrase here it to control itse lf, this shows an understanding of the principle of Checks and Balances as this is the way in which the government can control itself, however the general theme and purpose are shown to be the preservation of liberty.So to summarise this section I would say I have shown how both Montesquieu and the Founding fathers are agreed on the purpose of the separation of powers which is to ensure liberty, and they are both generally agreed on the idea of how this will be done- through checks and balances and the separation of the 3 branches of government, however I retrieve that there is one substantial difference in the midst of Montesquieu and the Founding Fathers views on the trouble which is- Whilst Montesquieu makes it clear that it neednt be a democracy to ensure Liberty, Madison states that dependence on the people is, no doubt, the elemental control on the government28 also Montesquieu believes that there is need for a genetical body29 which is not considered by Madison or the fo unding fathers.To start with I will identify the basics of how it operates, at its simplest level separation of powers can be considered to be the split of the 3 Branches of government into Legislative, Executive and Judiciary30- In contemporary America these are split thusLegislative = Congress- including both the Senate House of RepresentativesExecutive = PresidentJudiciary = Supreme Court and let down courts31This system operates in that Executive and Legislative are elected by the public and the Judiciary are appointed by the Executive and okay by the Judiciary32 (I will critique this as a point where Separation of powers does not exist in a later section).With separation of powers the three branches are to act as a limit to the powers of each other33 (Checks and Balances) so I will now discuss how this operates in practice, one key way in which this exists is through impeachment, this allows the Legislative to remove the Executive from slur for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.34, this could be seen as today meeting Montesquieus statement Should abuses creep into one part, they can be reformed by those that remain sound35 but it also presents a problem as it way of life that there is an overlap between the different branches however as I have discussed this does not mean a failure of separation of powers, it can however be considered as a potential failing as Other High Crimes and Misdemeanors is vague and open to interpretation so the Abuses of power Montesquieu could exist here if the executive were to be removed below the belt by a Legislative with ulterior motives.With the creation of legislation there are numerous checks and balances on the three branches of government I will attempt to point them all out in the explanation of the course of a write up becoming law- Laws can come from either sleeping room of congress- and must be passed in both, this is a check on itself and shows the influence of the British model on the American one (as well as on Montesquieu) through the existence of two chambers in the legislature. If the bill is passed by both Chambers it then must be ratified by the Executive- who can either veto it or pass it (Which means that the executive has a check on the power of the Legislature), if the executive vetoes it can be overridden by a 2/3 majority in both Chambers of the legislature, which is a check on the power of the executive. If the bill is passed then it has to be approved by the Supreme Court as being constitutional- which is a check on the power of all the other bodies.36 As can be seen the amount of checks the separation of powers works well here other than with the Supreme Court having no check on it and the ability to outright reject a bill.There are a few quirks in the American system that means Separation of Powers is not as clear cut as it could be one issue being that the vice-president is also the president of the senate37 which is a c lear overlap between the Executive and legislative, however as the Vice-President only has a casting vote38and does not have as much power as the president in the executive this can be seen as a technical breach rather than a problematic one. Another breach which is possibly more problematic is the appointment of judges to the Supreme Court- these are appointed by the President and confirmed by the senate39 whilst the fact that they are confirmed by the senate means that there is a check it also means that all 3 branches overlap in this area, it can create problems for the Executive when previous Presidents have appointed judges of a certain political panorama which can be seen as an abuse of power and therefore Separation of Powers has not been met.To summarise this essay I would say that the Purpose of the Separation of Powers as Originally Envisaged- Which can refer to either Montesquieu or the Founding Fathers- is in both cases the Preservation of Liberty. Whether or not this o perates in contemporary practice is debatable, I have been limited in this essay by attempting to answer two questions that potentially could be questions in their own right, I would like to have been able to explore further the Problems and Quirks but with the word limit of a single essay being imposed on two separate questions had to focus more on the questions at pass on rather than being able to discuss these issues. I have seek to use Primary sources as much as possible- My main references being The Spirit of Laws, American Constitution and The Federalist Papers as I feel that this improves the validity of my points.1 Heywood, Andrew, ( two hundred7), Politics third Edition, Palgrave Foundations, Basingstoke, Hampshire, England Pg. 3392 Montesquieu, Carrithers, David Wallace Ed. (1977), The Spirit of Laws, London, England, University of atomic number 20 Press Ltd. Pg. 2003 David Boucher capital of Minnesota Kelly, (2009), Political Thinkers from Socrates to Present, Second Edition, Oxford University Press, Oxford, England Pg. 2504 Ibid Pg. 2515 Montesquieu, Carrithers, David Wallace Ed. (1977), The Spirit of Laws, London, England, University of California Press Ltd. Pg. 2026 David Boucher Paul Kelly, (2009), Political Thinkers from Socrates to Present, Second Edition, Oxford University Press, Oxford, England Pg. 2517 Montesquieu, Carrithers, David Wallace Ed. (1977), The Spirit of Laws, London, England, University of California Press Ltd. Pg. 2028 Montesquieu, Carrithers, David Wallace Ed. (1977), The Spirit of Laws, London, England, University of California Press Ltd. Pg. 2029 Ibid Pg. 20210 Ibid Pg.20411 Ibid Pg. 20312 Ibid Pg. 18413 Davis Lloyd, Marshall, Polybius and the Founding Fathers The Separation of Powers, (Written 22/09/1998 Revised 02/09/2006) Available From http//www.mlloyd.org/mdl-indx/polybius/intro.htm, (Accessed 12/12/2009)14 Walbank, F.W., (1990), Polybius, London, England, University of California Press Ltd., Pg. 15015 Vile, M.J.C ., (1967), Constitutionalism and the separation of powers, Oxford, England, Oxford University Press, Pg. 11916 Constitution of Virginia, oblige 1 Section 5, Available From http//legis.state.va.us/constitution/a1s5.htm Accessed (12/12/2009)17 American Constitution phrase 1 Section 1, Available From http//www.archives.gov/exhibits/charters/constitution_transcript.html Accessed (12/12/2009)18 Ibid Article 2 Section 119 Ibid Article 3 Section 120 Dahl, Robert A., (2001), How democratic is the American Constitution?, Yale University Press, United States Pg. 6421 Ibid Pg. 6422 library of Congress, http//www.loc.gov/wiseguide/may05/constitution.html, Accessed (12/12/2009)23 Library of Congress, http//thomas.loc.gov/ shoes/histdox/fedpapers.html, Accessed (12/12/2009)24 Library of Congress, http//thomas.loc.gov/home/histdox/fed_47.html, Accessed (12/12/2009)25 Library of Congress, http//thomas.loc.gov/home/histdox/fed_47.html, Accessed (12/12/2009)26 Ibid27 Library of Congress, http//tho mas.loc.gov/home/histdox/fed_51.html, Accessed (12/12/2009)28 Library of Congress, http//thomas.loc.gov/home/histdox/fed_47.html, Accessed (12/12/2009)29 Montesquieu, Carrithers, David Wallace Ed. (1977), The Spirit of Laws, London, England, University of California Press Ltd. Pg. 20630 Heywood, Andrew, (2007), Politics third Edition, Palgrave Foundations, Basingstoke, Hampshire, England Pg. 33931 American Constitution, Available From http//www.archives.gov/exhibits/charters/constitution_transcript.html Accessed (12/12/2009)32 McKay, David (2009), American Politics and Society, Blackwell Publishers, Printed in Singapore by C.O.S. Printers Pte Ltd. Pg. 4733 David Boucher Paul Kelly, (2009), Political Thinkers from Socrates to Present, Second Edition, Oxford University Press, Oxford, England Pg. 25134 American Constitution, Article 2 Section 4, Available From http//www.archives.gov/exhibits/charters/constitution_transcript.html Accessed (12/12/2009)35 Montesquieu, Carrithers, David W allace Ed. (1977), The Spirit of Laws, London, England, University of California Press Ltd. Pg. 18436 McKay, David (2009), American Politics and Society, Blackwell Publishers, Printed in Singapore by C.O.S. Printers Pte Ltd. Pg. 4737 American Constitution, Article 1 Section 3, Available From http//www.archives.gov/exhibits/charters/constitution_transcript.html Accessed (12/12/2009)38 Ibid39 McKay, David (2009), American Politics and Society, Blackwell Publishers, Printed in Singapore by C.O.S. Printers Pte Ltd. Pg. 47