A number of reasons explaining why a constitution is considered to be a living document include, the ideas of separation of power, checks and balances, judicial reviews and the process of amendment. In relation to the idea of separation of power a constitution is regarded to a living documents because this idea encompasses a model that defines who is in control of a state. This idea of separation of power emphasizes that several branches make up the state (Strauss 45). Each of the branches is unique and distinct from the other in terms of its responsibilities. Additionally, it exercises power independently to avoid conflicting with the other branches.
Discuss the extent to which judges do create and develop the law. Numerous different judges have different views on to what extent judges have creativity within the legal system, such as Lord Simons who believed he judges job is to administer justice according to legislation made my parliament and in common law old principles should be applied to new circumstances, therefore his view is that judges should not be creative, as it isn’t there job. On the contrary Lord Radcliffe believed that judges do create law, however felt it should be on the quiet, so the public don’t lose respect for the judiciary and legal system. Finally Lord Devlin opposed the overruling of the supreme court, as all lower courts are bound to it and that it would turn them into “undisguised legislators” which is the job of parliament, not of the judiciary. The traditional view of the law making process is that parliament makes the law though acts of parliament, as they are democratically elected to make law, whereas judges aren’t so they merely apply it in court to the cases presented to them.
A codified constitution is a constitution in which key constitutional provisions are collected within a single document, it is commonly known as a written constitution. Codified constitutions have three key features. In a codified constitution the document itself is authoritative in the sense that it constitutes higher law. The provisions of a constitution are also said to be entrenched. This means that they are difficult to amend or abolish.
However, both principles function under one principle which is checks and balances. The second part of the U.S. Constitution focuses on individual rights and liberties. However, we will only be discussing the first part of the Constitution in this essay. The framers of the U.S. Constitution wanted to prevent the concentration of power into the hands of one individual, or even one group of individuals, within the national government. In order to accomplish their goal they decided it was necessary to divide the governmental functions into three: legislative, judicial, and executive.
The principle was adopted by the Founding Fathers due to their fear of totalitarianism. Montesquieu argued for separation of powers in his book L’Esprit de Lois, where he stated that separation of powers will avoid tyranny ‘When the legislative and executive powers are united in the same person…there can be no liberty.’ On the contrary to the US, the UK’s powers are fused; the Prime Minister is both the executive and part of the legislature. In the US system there is also a separation of personnel, this means that no person can be a member of more than one branch at the same time. When Senator Al Gore was elected vice-president in 1992, he had to resign from the Senate. Similarly, in 2008, Barack Obama too had to resign from the Senate.
Locke believed the power of the government came from the people and if the people are not happy with government actions then they have every right to overthrow the government. Locke believed people could survive in a natural state with no government but if the people like the government it can exist to benefit them. . (Locke, Chap. 4 Pg.
Every state has its own independent judicial system and in the judicial system the higher courts is the authority concerning the law with regard to state laws and the states viewpoint. The overall structure of the some state courts is comprised of three levels, which are the trial courts, the appellate courts and the supreme courts, although other states have only one level of appeal (Lawyer International, 2008). Trial procedures in the state courts are presided over by one judge and the cases begin at the trial level. The cases decided in a trial court are subject to the appeals and to the reviews by the appellate court. Some of the states, such as the District of Columbia or Puerto Rico, have one appeal level from the lower state court.
Does the Supreme Court have too much power for an unelected body? The third branch of the federal government is the judiciary, which enforces and interprets the law. There are three tiers of courts the trial courts, the appeal courts and the Supreme Court. The latter court is most important; its members hold office for life in addition to this it has the authority to interpret the Constitution. The Supreme Court is both a judicial and political body.
The United States of America is run by our country’s Constitution. After the American Revolution, the Americans realized the need for a system of government and law. The Constitution establishes three branches of government. It is important for all of Americans to understand why it was decided on three branches of government. They also should know the obstacles the division of power decide what branch gets what powers.
Common Law Judge-made law’ requires judge to use their discretion in making judgment, when no appropriate statute exists It then sets precedent for other cases Constitutional Separation of Powers The Separation of Powers means that power is distributed between the three arms of the government, that is, the legislature, the executive and the judiciary Legislature: Arm of government responsible for passing Acts of Parliament Executive: Arm of government responsible for putting laws passed by the legislature into effect. Judiciary: Arm of government responsible for apply law to individual cases. The court structure (role of the local court, district court, Supreme Court, court of criminal appeal and high court in relation to criminal cases) Role of local court Lower Court • To hear and decide cases that involve summary offences (Example: DUI) • To conduct committal hearings that involve cases where a person has been charged with an indictable offence o Magistrate decides whether there is a prima facie (reasonable) case, if not charges may be dropped Role of District