Eu - Separation of Power?
In this essay I shall attempt to analyse whether the separation of powers is respected in the attribution of competences within the European Union.
The separation of powers
In order to assess this question we first have to consider what the doctrine of separation of powers actually is. The idea was developed by the French jurist Montesquieu in the 18th Century. It is based on a division of power between the legislature, the executive and the judiciary. Each institution have their distinct and largely exclusive domain. The legislative function involves the enactment of general rules determining the structure and powers of public authorities and regulating the conduct of citizens and private organisations. The executive’s main function is to carry out the law. It initiates legislation, maintains order, promotes social and economic welfare, administrates public services and conducts external relations of the state among other things. The primary judicial function is to determine disputed questions of fact and law in accordance with the law laid down by the legislature. The concept of “separation” may mean at least three different things:
(i) that the same persons should not form part of more than one of the three organs of government, e.g., that ministers should not sit in Parliament;
(ii) that one organ of government should not control or interfere in judicial decisions;
(iii) that one organ of government should not exercise the functions of another, e.g., that ministers should not have legislative powers.
The reason why there should be a separation of powers is so that each distinct institution can carry out its function independently and check the other two – a form of checks and balances. The doctrine is opposed to the concentration of state power in a single person or group, since that is a clear threat to democratic government and in the same sense it is important that the legislature is not only a rubber stamp for the executive. Even an independent
The separation of powers
In order to assess this question we first have to consider what the doctrine of separation of powers actually is. The idea was developed by the French jurist Montesquieu in the 18th Century. It is based on a division of power between the legislature, the executive and the judiciary. Each institution have their distinct and largely exclusive domain. The legislative function involves the enactment of general rules determining the structure and powers of public authorities and regulating the conduct of citizens and private organisations. The executive’s main function is to carry out the law. It initiates legislation, maintains order, promotes social and economic welfare, administrates public services and conducts external relations of the state among other things. The primary judicial function is to determine disputed questions of fact and law in accordance with the law laid down by the legislature. The concept of “separation” may mean at least three different things:
(i) that the same persons should not form part of more than one of the three organs of government, e.g., that ministers should not sit in Parliament;
(ii) that one organ of government should not control or interfere in judicial decisions;
(iii) that one organ of government should not exercise the functions of another, e.g., that ministers should not have legislative powers.
The reason why there should be a separation of powers is so that each distinct institution can carry out its function independently and check the other two – a form of checks and balances. The doctrine is opposed to the concentration of state power in a single person or group, since that is a clear threat to democratic government and in the same sense it is important that the legislature is not only a rubber stamp for the executive. Even an independent