Essay on the separation of powers in Europe - A comparative study

“Each country must find a solution which is sensitive to its domestic culture” …this is the position of Lord Irvine of Lairg on the separation of powers. This can be regarded as a politically correct position on a very discussed topic in that it does not take part in the animated debate around separation of powers. Separation of powers raises both enthusiasm and criticism: enthusiasm as it is regarded as a theory which tends to ensure democracy; criticism because of the application of the theory in the different legal systems. Discussion about the separation of powers refers to the relation between the legislature, the executive and the judiciary. The relation between these constitutional tools can change from one country to another. The separation of powers is found in many modern constitutions however it will have a different meaning according to the state you study. The separation of powers and Montesquieu sound like synonyms. However it is a common mistake to say that Montesquieu invented the separation of powers. In Politics, Aristotle was already distinguishing the deliberative, the magisterial and the judicial. It is on the base of the British Government under George II and from the analysis of English writers and from John Locke, that Montesquieu in the XVIIth century concluded that the Constitution of the United Kingdom was based on a tripartite separation between legislature, executive and judiciary, each independent of the other, which prevented against the tyrannical exercise of power. However some observers have criticised this theory as applied to the United Kingdom.

[...] All these developments have been considered as an “antique and rickety chariot so long the favourite vehicle of writers on political science and constitutional law.”[15] There is recognition of the necessity of a separation of powers but in a reasonable form. In Chapter IV of Constitutionalism and the separation of powers M. J. C. Vile concluded that obviously doctrine of the separation of powers was no longer an English theory; it had became a universal criterion of a constitutional government”. [...]

[...] This constitutes a breach of the separation of powers in that the legislative powers are limited to a list which is to be found in Article 34 of the Constitution: the government has therefore a wider scope of legislative power than in Italy, France, Spain and Germany. Secondly, Article 38 of the Constitution states that the government can ask the Parliament to authorise the government to make ordonnances, which will deal with matters which can cover matters normally reserved to the Parliament. [...]

[...] Its argument is based on the separation which seems not to be ensured by a person who is part of the three arms of the State. Promoting this proposal, the government has stated that it intends to base the appointment of judges on merit and not on membership of a political party. However since the very beginning of the XXth century, the appointments to the High Court and the Court of Appeal have been non- political in the sense that they generally went to the leading members of the practice Bar. [...]