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

Type :

Case study

Pages :

16 pages

Format :

.doc

Published date :

01/15/2009

Category :

Law & contracts

Sub category :

Constitutional law

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Summary :

Introduction.
The separation of powers: A theory, critisms and several interpretations.
1. The forms and functions of a government.
2. Threefold division of labour, between a legislator, an administrative official, and an independent judge.
3. Further developments around the doctrine.
The separation of powers in Great Britain: Why is it questioned?
1. Theory and practice.
2. The legislative function.
3. The executive.
Separation of functions.
1. Separation of functions between the executive and the legislative.
2. Separation of functions between the judiciary and the executive.
3. Separation of functions between the legislature and the judiciary.
4. Separation of persons.
5. The Sovereign.
6. The government.
7. The Judiciary.
8. The Lord Chancellor.
9. Checks and balances.
10. Legislature and judiciary.
11. Legislature and executive.
12. The Continental practice of the theory.
13. The relationship between the executive and the legislature.
14. The relationship between the legislature and the judiciary.
Conclusion.
Bibliography.

Abstract

"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.