The Theory Of Separation Of Power

In The Spirit of Laws, Montesquieu states, “Political liberty is to be found only in moderate governments… It is only there where there is no abuse of power… To prevent this abuse, it is necessary from the very nature of things that power should be a check to power.” (Secondat) His revolutionary idea of checks and balances inspired the founding fathers and served as the basis of the democracy they were to create. "They [the colonists] also studied Baron de Montesquieu, who wrote that government should have a balance of powers between executive, legislative and judicial branches.”

Montesquieu believed that everything was made up of laws or rules that never changed. He wrote the book The Spirit of the Laws, which greatly covers the importance of separation of power in balancing the control of the

Both statutory interpretation and the Human Rights Act are a doctrine of precedent by which law is changed and justice is served. The doctrine of precedent is an essential principle of English legal system, which is a form of reasoning, interpreting and decision making formed by case law. It suggests that precedents not only have persuasive authority but must also be shadowed when similar situations arise. Any rule or principle declared by a higher court must be followed in future cases. In short the courts and tribunals are bound within prearranged restrictions by prior decisions of other superior courts. All the judges are also obliged to follow the set-up precedents established by prior decisions which is called Stare decisis. Making decisions according to precedent helps achieve two objectives. Initially it aids to maintain a system of stable laws which gives predictability to the law and affords a degree of safety for individual rights. Moreover, it ensures that the law progresses only in accordance with the developing perceptions of the community. Therefore, it more accurately mirrors the morals and prospects of the community that we live in.

Document A: Federalism guards against tyranny because separating the power between the National government and state government allows there to be no one government with too much power. This is because since the two governments have different jobs and different powers this makes it so each government has its limits and the government will be protected from becoming a dictatorship. For example in document a it says that Central or National government can regulate trade, conduct foreign relations, declare war etc. while the each of the States are allowed to set up local governments, hold elections, establish schools, pass marriage and divorce laws and regulate in-state business, which are all things you would normally do locally. Although both

Almost 230 years ago in Philadelphia, 55 representatives from 12 out of the 13 colonies met up to revise the Articles of Confederation. They felt the Articles were too weak and went into this meeting with the intention of only changing a couple of things on the regarding America’s protection against a dictatorship. Instead, they ended up creating a completely new system; the Constitution. The Constitution protects Americans from tyranny through federalism, separation of powers, checks and balances, and protection of small states.

In 1776, the colonies wrote a Declaration of Independence that made the 13 colonies their own country, because they felt that King George III was a tyrant that abused his power too much and did not give the colonies their rights. The Articles of Confederation was the first constitution that gave the states all of the power. A new constitution was needed because the national government had no power over the states. which were out of control. In May of 1787, 55 delegates from twelve states , excluding Rhode Island, traveled to Philadelphia to fix the Articles of Confederation. When they were all gathered, the delegates decided to write a whole new constitution with a more powerful national government. The Constitution guarded against tyranny

Baron de Montesquieu created the “separation of powers” where he dividing the power into three branches the executive,legislature, and judiciary (Document 6). Where the government,law enforcement,and adjudication are not in the same hands but different and there was no way where the executive and legislative could not be together or unite power. The Enlightenment did make this event in the 18th century revolutionary because it divided the power into three groups and not leave all the power among one. Everything then depended on the civil law the first one was by the prince or magistrate who did laws, then the second one makes peace or war and provides against invasion, the last one was where the criminals were punished and all men were the

The founders of the Constitution had to make a document that would give powers to the people yet also protect against one or more person getting too powerful. This is called tyranny, or a government with absolute power. They protected against it by creating Federalism, Separation of powers, Checks and balances, and Bicameral legislative. This allowed us to have a constitution that guards against suppressive tyrants. One of the guards against tyranny is Federalism.

The Division and Separation of power are essential to keep our societies rulers to have a restriction on their powers. The importance of each on the Australian domestic law especially in relation to the rule of law, and protecting individual rights, and the legal system.

Section 3 of the Human Rights Act (HRA) 1998 provides that primary and subordinate legislation “must be read and given effect in a way which is compatible with Convention rights”. This provides judges the power to interpret and amend legislation so far as it is possible so that it is in accordance with Convention rights. There is no need for ambiguity in wording of the act to use section 3 and it does not affect the validity of the Act notwithstanding the Act being incompatible with Convention rights. There are limits on judges’ ability to use section 3 which restrict cases in which it can be used. First, section 3 cannot go against the grain of the fundamental purpose of the legislation in question. Second, judges can only go “so far as possible” when interpreting legislation. The means that judges are restrained by the plain words of the provision and cannot stray from it’s meaning so far as to completely amend it.

Not only were Hobbes and Locke influential during the Constitutional Period, but also Charles de Montesquieu and Jean Jacques Rousseau. In Montesquieu’s work, The Spirit of the Laws, Montesquieu described the state of nature as a place of fear where humans avoid violence and war. However, once the state of war enters society, a need for human laws and government is needed in order to maintain law and order. Therefore, Montesquiu helped advocate for governmental authority and raised awareness for the need for separation of powers in the three branches of government. In today’s government, Montesquieu's beliefs in the separation of powers and governmental control are clearly seen in the Constitution. Additionally, Rousseau was able to influence

The claimant, Ahmad Raja Ghaidan, on the protected tenant’s death (Mr Hugh Wallwyn-James), brought possession proceedings by means of paragraph 2 schedule 1 the Rent Act 1977 . Two impediments went against Mr Godin-Mendoza, firstly, paragraph 2(2) is gender specific. Secondly, the ruling of the Fitzpatrick v Sterling Housing Association in the House of Lords rejected the argument that a same-sex partner could bring himself or herself within the scope of paragraph 2(2) . The county court judge deemed that Godin-Mendoza did not succeed to the tenancy of the flat as the surviving spouse of the original tenant, but was granted a lesser assured tenancy by virtue of section 3(1) of the Rent Act as a member of the original tenant’s family .

When the Constitution was written, the ultimate goal of the Founding Fathers was to prevent tyranny and oppressive government. In order to achieve this remarkable goal, the Founders made the decision to adopt the concept of Separation of Powers. In the Constitution, Separation of Powers is essentially the distribution of power among the three government branches: the legislative, the executive, and the judicial. Despite how is has changed and grown, the concept of Separation of Powers continues to be just as important as it was when the Founders wrote the Constitution because of its raised relevance due to current issues.

The doctrine of the division of powers is considered a conservative politically-legitimate belief that asserts that the state competence is not the only body’s but comparatively a synthesized peculiar authority activity the legislative, executive, and judicial lugged away by the bodies of a nation all running independently . The legislative executes rules, the executive carry out the rules, and the judiciary translates the rules.

Governments perform three functions namely executive, judicial and legislative functions. The role of separation of powers involves the diffusion rather than concentration of powers within the state. Thus, these branches should be separate, unique and equal. The underlying principle of the separation of powers is that individuals have the potential to harm others, and this can become a reality when power is concentrated in one person, faction, or institution. However, if the branches were completely separate it would be unworkable since Parliament is