In order to implement change in the US constitution, therefore, there is a much stricter protocol to follow. In light of the statement above, it is necessary to look into the theory of Parliamentary Sovereignty. Dicey, a nineteenth century constitutional theorist held the view that “no person or body is recognized by the law of England as having a right to
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.
A core principle of the United Kingdom’s (UK) unwritten constitution is the doctrine of parliamentary sovereignty - described by British constitutional scholar Albert Venn Dicey as the ‘keystone of the law of the constitution’ . Dicey defines parliamentary sovereignty as follows: ‘The principle of Parliamentary Sovereignty means neither more nor less than this, namely that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament’. Dicey’s account of parliamentary sovereignty consists of a positive and a negative limb. The positive aspect is that Parliament, as the supreme law-making body of the UK, has the ability to legislate on anything it wants. The negative aspect is that once an Act of Parliament has received Royal Assent, no person or body can question its validity, not even the courts.
The function of the state are well defined and it has no rightful claim to eminence. The pluralists, in brief, maintain that sovereignty is divisible and the state is not supreme and unlimited in its authority. On emphasising the evolution of concept of sovereignty the researcher can say that the juristic analysis of sovereignty has a history stretching back to the Roman Empire. In modern times the development of theory of sovereignty conceded roughly with the growth of the state in power, functions and prestige. But in 1832 when Austin published his lectures titled ‘province of jurisprudence’ then the concept of sovereignty reached to its climax.
3. ‘The Human Right Act has revolutionized the way in which judges interpret statutes’. The judiciary practice in interpreting statutes has long been subject to the doctrine of parliamentary sovereignty, which asserts the hierarchical relationship between the judiciary and Parliament in which the Parliament is the supreme law-making body. This was also stressed by Lord Scarman in Duport Steels Ltd v. Sirs: In the field of statute law the judge must be obedient to the will of Parliament as expressed in the enactments. In this field Parliament makes and unmakes the law, the judge’s duty is to interpret and to apply the law, not to change it to meet the judge’s idea of what justice requires.
The Port Huron Statement, if applied to United States policies, would destroy the liberty carefully established by the Founders, laid out in the Constitution, and defended throughout American history. The Sharon Statement quotes the Declaration of Independence and follows its definition of government to describe how the United States should proceed in its affairs. The Sharon Statement begins by stating that its intention is to “affirm certain eternal truths”, which is similar to the Declaration's preamble, which states, “We hold these truths to be self-evident.” The Sharon Statement models its organization as well as its content after the founding document of
The legislature's main function is that of enacting laws proposed by the executive, and the judiciary has the function of interpreting laws enacted by the legislature and ensuring that the executive is executing its function in accordance with the law. The doctrine of separation of powers entails a system where each of the three organs of government work independently of one another so as to foster democracy and accountability in the course of governance. The concept of separation of powers was elevated to the rank of a grand constitutional principle by the French theorist Baron Montesquieu who argues for a strict separation of the legislature (which makes the law), the administration or executive (which governs the state), and the judiciary (who apply the law) in order to protect the liberty of the individual. Montesquieu’s main concern was with the judiciary whose independence from the legislature and executive he stressed. Montesquieu stated: When the legislature 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 the executive.
INTRODUCTION The separation of powers is a constitutional principle designed to ensure that the functions, personnel and powers of the major institutions of the state are not concentrated in any one body. It ensures a diffusion rather than a concentration of power within the state. The fundamental purpose of the separation of powers is to avoid the abuse of power and thereby to protect the rights and liberties of citizens. The concept itself is of great antiquity and can be attributed to Aristotle, however, the clearest exposition of the doctrine can be found in the French writer Charles- Louis de Montesquieus. In essence, Montesquieu states that the three organs of government, the executive, legislature and judiciary should each have a discrete and defined area of power and that there should be a clear demarcation of functions between them.
Firstly, the UK Constitution would be described following a brief definition of the convention then discussing the functions which they perform within the UK constitution and the reason they are observed. Furthermore, it will be necessary to identify the importance of conventions within the UK constitution and consider the different examples of constitutional conventions and in light of the findings critically evaluate the above statement. UK is known to have a ‘un-codified’ constitution meaning that there is no single written document which designates the operation of the government or set out what are the rights of individual citizens unlike the United States which has a codified constitution. UK constitution is made of Legal sources and Non-legal sources. Legal sources are written, such as statute, case law and subordinate legislation.
It is called " pure " because it seeks to preclude from the cognition of positive law all elements foreign thereto. The limits of this subject and its cognition must be clearly fixed in two directions: the specific science of law, the discipline usually called jurisprudence, must be distinguished from the philosophy of justice, on the one hand, and from sociology, or cognition of social reality, on the other. To free the concept of law from the idea of justice is difficult, der Rechts- und STAATSLEHRE (23 Enzyklopidie KELSEN, REINE RECHTSLEHRE (1934); Kelsen, Theorie Generale du Droit International (1932) 42 RECUEIL DES COURS 121. For publications in English concerning the pure theory of law, see COHEN, RECENT THEALLGEMEINE 1 See KELSEN, Staatswissenschaft 1925); ORIES OF SOVEREIGNTY (1937) 57-79; GAUTERPACHT, KELSEN'S PURE SCIENCE OF LAW (1933); MATTERN, CONCEPTS OF STATE, SOVEREIGNTY AND INTERNATIONAL LAW (I928) I21-39; Husik, The Legal Philosophy of Hans Kelsen (1938) 3 J. SOC.PHIL. 297;