“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.
[...] Sir Ivor Jennings, Law and the Constitution (5th Edn 1959 University of London Press) at 18 - 28 Harris, P., An Introduction to Law (4th Edn Butterworths Law in context) at Henderson,E., Foundations of English Administrative Law (1963 Harvard University Press) at 5 The Hounourable Chief Justice L E Unylo, Official Opening of the Conference on Separation of Powers in a Constitutional Democracy, 29th January 2003, MALWI Vile, M.J.C, Constitutionalism and the separation of powers (1967 Clarendon Press Oxford) at Vile, M.J.C, Constitutionalism and the separation of powers (1967 Clarendon Press Oxford) at Montesiqueu, De l'Esprit des Lois, Book VIII, p 2 Dicey, The Law of the Constitution,(8th Edn 1931 London) Vile, M.J.C, Constitutionalism and the separation of powers (1967 Clarendon Press Oxford) at 230 De Smith, S. and Brazier, R., Constitutional and Administrative Law (8th Edn 1998 Penguin ) at 18 - 19 Ibid. Vile, M.J.C, Constitutionalism and the separation of powers (1967 Clarendon Press Oxford) at 86 Eismann, C., L'Esprit des Lois et la séparation des pouvoirs (1933 Mélanges R. Carré de Malberg,) at166 Robson, Justice and Administrative Law, p 14 Griffith, JAG and Street, H., Principles of Administrative Law (5th Edn Pitman ) at 16 Bradley, A. [...]
[...] 1-35, at 8 Vile, M.J.C, Constitutionalism and the separation of powers (1967 Clarendon Press Oxford) at 93 - 94 Munro, Colin. R., Studies in Constitutional Law (2nd Edn Butterwoths) at 302 Ibid, p 332 Merino-Blanco, E., Spanish legal system (1996 Sweet and Maxwell) at 38- 40 Foster, N. and Sule, S., German legal system (3rd Ed Oxford University Press) at 194 Eliott, C. and Vernon, C., French legal system (2000 Longman) at 97 Eliott, C. and Vernon, C., French legal system (2000 Longman) at 164 Munro, Colin. [...]
[...] In its classical definition the theory of separation of powers implies that each power is to be given to a different body. The basis of the theory is not in the separation of the organs but in their independence. In other words, they must be as independent as possible of each other. It is important that judges are independent from parliament and from the government in order to avoid that the body which makes the law is the one which apply it. [...]
[...] It has been characterised as of little significance[2] or as fallacious[3]. These observers have concluded that the existence of the principle of separation of powers is far more arguable in Britain than in continental Europe. In other words, is there a separation of powers in the British legal system? Is it more present in continental Europe? To answer such a question it is necessary to study the British system of government to analyse how the separation of powers is to be found there. [...]
[...] An intrusion which is to be seen as a check of what executive do by the judiciary. Judicial review does not put into question the separation of powers insofar as it does not produce an encroachment of the judiciary on the executive functions: the judiciary does not execute functions of the executive, it controls them. The enactment of the Human Rights Act 1998 the number of judicial review cases has increased as the Act provides a wider protection against abuse of executive powers. [...]
Bibliographie, normes APA
Citez le doc consultéLecture en ligne
et sans publicité !Contenu vérifié
par notre comité de lecture
