Download file to see previous pages
Almost all of them believe that the powers must be exercised by three distinct branches, namely, an executive, a legislature, and a judiciary. The rationale for this separation of powers is in part due to the assumption that it is wise for distinct powers to be used in distinct ways. Nevertheless, most significantly, the separation of powers is a means of regulating power, of preventing any single branch from becoming unduly powerful (Sharma and Sharma, 2000). Moreover, different nations have different thoughts on how to divide these three major government powers. It is not possible for one branch to become fully independent from the others because all belong to a single government. This essay argues that Australia’s partial separation of powers ensures a strong checks-and-balances mechanism and a rigid preclusion of authoritarianism. Overview The separation of the legislature, executive, and judiciary is a constitutional model that is rooted in the assumption that government is more effective if the various areas of governing are scattered among various entities that continue to be independent from each other. Advocates of the assumption normally recognise three government functions, namely, (1) law making, (2) law implementation, and (3) law interpretation-- which are the legislature, executive, and the judiciary, respectively (Smith, Vromen and Cook, 2006). Within the separation of powers, the autonomy of all the government branches is usually safeguarded by an established constitution, in order that no independent branch can lawfully infringe upon the powers of the others. In addition, according to Winterton (2006), such separation is established by prerequisites that constituents of one governmental institution cannot concurrently work in another institution and by safeguarding the term of constituents of one institution from intrusion by another institution. A prominent French scholar, Montesquieu, perfectly illustrated the rationale of the principle of separation of powers (Sharma and Sharma, 2000, p. 548): “[T]here is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be the end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise these three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.” The separation of powers is a very old concept; nevertheless, it obtains its current importance from the contemporary interest in regulating governmental powers. Political scholars assumed that the public could be shielded from too much government power if the executive’s decisions had to be approved by an autonomous legislature and may be questioned in autonomous courts. The contemporary form of separation of powers can hence be viewed as originating mainly from ‘liberalism’ instead of ‘democracy’ (Winterton 2006). Proponents of democracy at times claim that the law is supposed to represent people’s will, instead of representing a more intricate structure of separation of powers (Sharma and Sharma, 2000). In actual fact, political structures differ in the degree to which they divide powers and in the processes by which separation is attained. Contemporary liberal democratic regimes are influenced by the separation of powers principle. The separation of the three branches is a constitutional way of mitigating the existing difficulties of guaranteeing democratic governance. It contributes to a better
...Download file to see next pagesRead More
Cite this document
(“The Rationale behind the Separation of Powers in the Australian Essay”, n.d.)
Retrieved from https://studentshare.org/history/1399024-why-are-the-legislative-executive-and-judicial
(The Rationale Behind the Separation of Powers in the Australian Essay)
“The Rationale Behind the Separation of Powers in the Australian Essay”, n.d. https://studentshare.org/history/1399024-why-are-the-legislative-executive-and-judicial.
archy and democracy, Aristotle believes that one can avoid the negative effects of either regime in its pure form while preserving the positive aspects of those regimes "democracy exists when the free and poor, being a majority, have authority to rule; oligarchy, when the
Separation of Powers. Much progress has to be made before the UK has a satisfactory separation of powers. Critically discuss. Separation of power is an imperative to assure accountability on the part of a government, to restrain and dilute a trend towards corruption and to protect the fundamental and universal rights of the citizens, from incursions and interference of the governments in power.1 To achieve this cherished objective, it is a must to separate and circumscribe the legislative powers of the parliament to enact laws, the power of the government to manage and govern in the light of the ratified and established laws, and the power of the judiciary to listen to and resolve disputes in
The idea of “separation of powers” accepts that powers should undergo devolution into these three different branches. These include legislature, executive and judiciary (Coper & Williams, 2001). The reason for power separation is its ability to allow power to be exercised in three different ways to achieve the holistic goals of a government.
Each government branch has the ability to monitor the powers of other government branches. This concept is referred to as separation of powers. This philosophy greatly influenced the development of the United States Constitution. The constitution illustrates three branches of government; Judicial, Executive and Legislative.
UK despite amending its constitution umpteen times is still unable to mend its traditional 'rule of law' due to which it has limited boundaries to the 'separation of powers'. UK cannot point to any other country to claim that the country is following UK's constitution.
According to the report in the present environment where the omnipresent threat of terrorism is driving domestic and foreign policy, more and more governments all over the world are and seeking to arm themselves with more and more draconian powers under the mantle of ‘national security’ at the cost of human rights and individual liberties.
y assessment (a democratic element).
Montesquieu agrees in part with Aristotle's ideas of combining a democracy with oligarchy. He terms them "executive" and "legislative" branches, but they are in effect the same as Aristotle's "democracy" and "oligarchy".
Nevertheless, the essential ideas behind the doctrine remain vital ingredients of Western political thought and practice today; the problems of earlier centuries remain the problems of today, although the context is different and the dimensions of the problems have changed" (Vile, M.J.C.; 1967; Chapter 2)