(3) Introduction, Theory and Aims Flashcards
How does the separation of powers seek to divide governmental power?
The constitutional doctrine of separation of powers seeks to divide governmental power between three branches of government;
- The legislature
- The executive
- The judiciary
What is the broad aim of the separation of powers?
To prevent arbitrary and oppressive governments and to promote efficiency.
What may occur if there were no separation of power?
If all governmental functions were exercised by one individual – say the Prime Minister – said person would have unfettered power to design, implement and cast judgement over legislation. While such a situation may create a degree of simplicity that the UK constitution in it’s current form perhaps lacks, it would also facilitate arbitrary and oppressive regimes. Indeed, such an arrangement would almost certainly result in a dictatorship.
How important is the separation of powers to the idea of constitutionalism?
It’s a cornerstone of liberal democracies, it has been suggested that any state that were to offend the doctrine by granting unfettered governmental power to the holder of one office may be considered not to have a ‘constitutional’ system at all – see Article 16 of the French Declaration of the Rights of Man.
What did Eric Barendt say about the importance of the separation of powers to the idea of constitutionalism?
Eric Barendt neatly encapsulated the idea when he said ‘the separation of powers in some form is arguably the essence of constitutionalism’.
What are the two key approaches to the separation of powers doctrine?
- The Pure Approach
2. The Partial Approach
Who introduced the idea of a separation of powers into English Political thought?
John Locke, in the late seventeenth century when he spoke of ‘too great a temptation to human frailty, apt to grasp at power, for the same persons who have the power of making laws, to have also in their hands the power to execute them’.
What are the two main aims of the separation of powers doctrine?
- A restraint on governmental power – through avoidance of concentration of power and empowering each branch to restrict the actions of the others
- Promotion of the efficiency of government – through the allocation of specific governmental functions to the branch best equipped to deal with them
What did Barednt think about the two key aims of the separation of powers?
He downplayed the significance of this second efficiency aim, emphasising instead the avoidance of tyrannical power (aim 1) as being the primary goal.
What was Montesquieu’s position on the aims of the separation of powers?
Like Barendt he emphasised the importance of the aim to restrain government power primarily - There would be an end to everything, if the same man, or the same body, whether of the nobles or of the people, were to exercise those three powers, that of enacting laws, that of executing public affairs, and that of trying crimes or individual cases’.
He also identified a further value to the separation of powers doctrine, suggesting it reduced the perception that laws were administered in a partial or predetermined manner.
What was James Madison’s perception of the separation of powers doctrine?
He, like Montesquieu, saw the separation of powers as as one of the hallmarks of a liberal constitution and an ‘essential precaution in favour of liberty’.
Why are there two different interpretations of the separation of powers?
There is a disagreement over the extent to which governmental powers should be separated in practice.
What are the two key components to the separation of powers theory?
- Institutional Separation
2. Functional Separation
