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.
Separation of Powers is a model of governance for democratic States such as ours, Zimbabwe, where the State is divided into three separate and independent branches (powers) with distinct areas of responsibility. The constitution of Zimbabwe uses the concept of Separation of Power as a means to remove the element of dictatorship and instil the element of consensus whilst power limiting provisions are put in place against abuse of Public Trust. These constraints, also referred to as checks and balances, come in various forms. In some cases, an authority’s power to act is qualified by the requirement to conduct consultations with another person or authority prior to taking action. In other cases, the constitution requires an authority’s actions to be approved by another person or authority before taking effect.
This essay will focus on the nature and adequacy of Hart’s objections to Austin’s “command theory of law.” Austin defined the law as “the command of the sovereign, backed up by sanctions.” The three crucial components of this definition are the words command, sanction and sovereign. This essay will analyze, in turn, the scope and meaning of each of these terms, as envisioned by Austin, and Hart’s criticism of each of these conceptions. Austin believed that law is a species of command. He further defined a command as “an intimation or expression of a wish to do or forbear from doing something, backed up by the power to do harm to the actor in case he disobeys.” Furthermore, the person to whom the command is given is under a "duty" to obey it, and the threatened harm is defined as a "sanction." According to Hart, the idea that law consists merely of orders backed by threats is inadequate to explain modern legal systems.
“In the UK constitution, how important is a separation of powers to the rule of law ?” The rule of law plays a fundamental role in the separation of the judiciary from the executive within the separation of powers doctrine. Dicey being the authority for the rule of law states that “not only that with us no man is above the law, but that here every man whatever he his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary man”, this quote confirms the separation of powers doctrine and the fact that no one is above the law or ever shall be above the law. Dicey also stated that, “ no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law ……..In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint.” The rule of law has played a persuasive role in constitutional thinking by restating that no man is above the law or shall ever be above the law. This conception attempts to ensure that law is not secret arbitrary or retrospective, thereby limiting the discretionary power of the government. As judicial review is progressively being used more, the rule of law has played an even larger role.
Furthermore, the essay will donate to link the aforesaid historical phenomenon’s (protestant ethic and the spirit of capitalism) to the advantages and of bureaucracy; it will also critically discuss the conflict theory (Karl Marx) and the functional theory (Weber) then critically discuss Weber and Marx views on class social stratification and status, it also going to discuss four values of social action and lastly answer the question why I support his ideas. Weber, by rationalisation, meant the process by which explicit, abstract, intellectually calculable rules and procedures are increasingly substituted for sentiment, tradition and rules of thumb in all spheres of activities (Wrong, 1970:26).What weber basically mean by this definition is that the social actions for people are becoming more and more based on fulfilling self-luxury rather than motivations drives like tradition, morality etc. For example, if you could ask a very determined and successful business man, why he works so hard to keep his business functioning and alive, he will answer that he is working for his children and grandchildren to have good life (Geddens, 1971:), whereas bureaucracy is the specialized adherence to fixed rules and hierarchical fixed authority (Website 1).This definition basically mean that bureaucracy is a type of domination that is organized hierarchically with strict chains of command from top to bottom(Website 1). Looking at the vesting that constitute this essay, it is definitely clear that the essay will
So, to sum up freedom most pertains/explains in to the person or people itself. Independence, on the other hand, means a freedom with rules and regulations it pertains for the country. It is being free but always entails .great responsibilities. You’ll need to think twice for every action you want to do unlike in freedom you yourself will create your own limitations and just do what you want. Independence means standing by your own without depending onto others, you must be on yourself and should not rely to someone’s decision, support/influence.
The doctrine of separation of powers is one of the essential elements of the rule of law, because without a proper separation of powers the rule of law will be imperilled, but the doctrine has a wider application and this Constitution Watch will examine it in greater detail. It will be seen that although the doctrine represents an ideal which cannot be put into practice absolutely, it does emphasise the need to provide adequate checks and balances within the governmental system. Doctrine of Separation of Powers In essence, the doctrine of separation of powers is that for a free and democratic society to exist there must be a clear separation between the three branches of government, namely: The Executive: which is the branch that executes the business of government. It comprises the President, Vice-Presidents and Ministers, the Public Service, the Defence Forces, the Police Force and other law- enforcement organisations. All the administrative, law-enforcement and coercive organs of the State fall within the Executive Branch, making it potentially the most powerful of the three branches of government unless its powers are subject to limitations.
From the view of legal positivism, said by Joseph Raz, judicial independence is a thing that has to be fulfilled to achieve the rule of law. Under this model, the judicial branch should be separated from other branches of the government, saying the
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.
RIGHT OF EXPRESSION UNDER THE NIGERIAN CONSTITUTION: ISSUES AND CHALLENGES BY AMAJU RAPHAEL AONDOFA MATRIC NO: 06/40IA046 MAY 2011 RIGHT OF EXPRESSION UNDER THE NIGERIAN CONSTITUTION: ISSUES AND CHALLENGES BY AMAJU RAPHAEL AONDOFA MATRIC NO: 06/40IA046 BEING A LONG ESSAY SUBMITTED TO THE FACULTY OF LAW, UNIVERSITY OF ILORIN, ILORIN, NIGERIA, IN PARTIAL FULFILLMENT OF REQUIREMENTS FOR THE AWARD OF THE DEGREE OF BACHELOR OF LAW (LL.B HONS.) IN COMMON LAW MAY 2011 ii CERTIFICATION This is to certify that this long essay: RIGHT OF EXPRESSION UNDER THE NIGERIAN CONSTITUTION: ISSUES AND CHALLENGES was written by AMAJU RAPHAEL AONDOFA. It has been read and approved as meeting part of the requirement for the award of Bachelor of Law (LL.B Hons.) Degree in Common Law, in the Faculty of Law, University of Ilorin, Ilorin, Nigeria. DR.