Seperation of Powers
Chapter 4: Separation of Powers
A. Historical Development
1. The Politics, Aristotle proclaimed that:
"There are three elements in each constitution in respect of which every serious lawgiver must look for what is advantageous to it; if there are well arranged, the constitution is bound to well arranged, and the differences in constitutions are bound to correspond to the differences between each of these elements. The three are, first, the deliberative, which discusses everything of common importance; second, the officials; the third, the judicial element."
2. FW Maitland traces the separation of powers in England to the reign of Edward I (1272-1307):
" In Edward's day all become definite- there is Parliament of the 3 estates, there is the King Council, there are well known courts of law"
3. Bolingbroke observed that:
" Since this division of power, and these different privileges constitute and maintain our government, it follows that the confusion of them tends to destroy it. This proposition is therefore true; that, in a constitution like ours, the safety of the whole depends on the balance of the parts."
4. Baron Montesquieu (1689-1755, living in England from 1729-31) stressed the importance of the independence of the judiciary in De l'Esprit des Lois(1748):
"When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty...Again, there is no liberty if the power of judging is not separated from the legislative and executive. If it were joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. If it were joined to the executive power, the judge might behave with the violence and oppression. There would be an end of everything, if the same man, or the same body, whether of the nobles or the people, were to exercise those three powers, that of enacting laws, that of
A. Historical Development
1. The Politics, Aristotle proclaimed that:
"There are three elements in each constitution in respect of which every serious lawgiver must look for what is advantageous to it; if there are well arranged, the constitution is bound to well arranged, and the differences in constitutions are bound to correspond to the differences between each of these elements. The three are, first, the deliberative, which discusses everything of common importance; second, the officials; the third, the judicial element."
2. FW Maitland traces the separation of powers in England to the reign of Edward I (1272-1307):
" In Edward's day all become definite- there is Parliament of the 3 estates, there is the King Council, there are well known courts of law"
3. Bolingbroke observed that:
" Since this division of power, and these different privileges constitute and maintain our government, it follows that the confusion of them tends to destroy it. This proposition is therefore true; that, in a constitution like ours, the safety of the whole depends on the balance of the parts."
4. Baron Montesquieu (1689-1755, living in England from 1729-31) stressed the importance of the independence of the judiciary in De l'Esprit des Lois(1748):
"When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty...Again, there is no liberty if the power of judging is not separated from the legislative and executive. If it were joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. If it were joined to the executive power, the judge might behave with the violence and oppression. There would be an end of everything, if the same man, or the same body, whether of the nobles or the people, were to exercise those three powers, that of enacting laws, that of