Unit 3. Separation of powers

1. Answer the following questions:

a) What branches of power in a state do you know?

b) What are these branches represented by in your country?

2. Read the text. What is the essence of Montesquieu's theory of separation of powers?

One of the reasons for having special constitutional laws is to prevent governments from becoming too powerful and from interfering too much in the lives of individuals. Where socialist legal systems have tended to try to define exactly what the state allowed citizens to do, Anglo-American law has been more concerned with defining what the state could do, arguing that citizens are entitled to do everything other than that which the state forbids. As a check upon overpowerful government most modern constitutions have adopted the principle of separation of powers, developed in the 18th century by the French political philosopher Montesquieu.

Montesquieu argued that the functions of the state could be divided into policy formulation and direction (executive), lawmaking (legislative), and interpretation and application of the law (judicial). To stop governments from becoming too powerful these functions should be carried out by separate institutions, and there should be a balance between them.

When the legislative 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 judicial 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 then be the legislator. Were it joined to the executive however, the judge might behave with violence and oppression. There would be an end to everything, were the same man, or the same body whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the resolutions, and of trying the causes of individuals.

Montesquieu, De l'Isprit des Lois (Klincksieck, 1982)

The theory has been criticised for being purist - that is, it is an impractical model to which the British system of government does not conform. For example, members of the executive are also members of the legislature - the head of the judiciary, the Lord Chancellor, is a member of the Cabinet. Equally, the courts perform many administrative functions.

The Constitution of the United States was expressly based on the separation of powers - the executive (President), the legislature (The Senate / The House of Representatives) and the judiciary (The Supreme Court) are discrete bodies. Each body exercises the function of the powers through a complex system of checks and balances. For example, the President is elected by the people and attempts to carry out his policy promises through the presidential office of advisers. The Constitution gives him many important powers, such as control of the armed forces and appointment of the Supreme Court justices, but many of his decisions and all new legislation must be approved by majority in the Congress, which is also elected by the people. Many presidents have had important policies blocked by the Congress. The Supreme Court has the task of interpreting laws which have been disputed in lower courts, and of deciding whether a law passed by the Congress or by one of the individual states is in keeping with the Constitution.

By contrast, in France the theory of separation of powers is the reason why the courts do not have the jurisdiction to question the legality of the acts of the executive and the legislature.

It is generally accepted that a precise separation of the functions of government is impracticable. Motesquieu's theory should be seen as prescriptive rather than descriptive, its essence being that no one person or body should have full control of all three functions of government. In particular, the courts should be independent of the executive and the legislature so that the judges can ensure that these bodies do not exercise their powers arbitrarily.

3. Are the following statements true or false? Correct them if necessary.

1. Montesquieu was a French philosopher of the 16th century.

2. Judicial branch of power in the USA is represented by the Congress.

3. The principle of separation of powers was adopted in order to strengthen the control of a state over its citizens.

4. In Britain the Lord Chancellor cannot hold an office in the government.

5. President of the United States is appointed by the Supreme Court.

6. In France acts of the legislature cannot have legal power without being rectified by the judiciary.

7. President of the USA has the control of the armed forces of the country.

4. Translate and transcribe the following words. Find all possible derivatives of these words and check their meaning with the help of a dictionary:

appointment

essence

interfere

cause

execute

oppression

conform

expose

purist

discrete

impracticable

resolutio

n

5. Paraphrase or translate the phrases below:

to question the legality of an act;

policy formulation or direction;

policies can be blocked by the Congress;

a complex system of checks and balances;

to be approved by majority in the Congress;

to prevent government from becoming too powerful;

interpretation and application of the law;

prescriptive rather than descriptive;

laws which have been disputed in lower courts;

the presidential office of advisers;

to be in keeping with the Constitution;

to exercise one's powers arbitrarily.

6. Make a written translation of the text. Retell it.

At all periods in English history it has been necessary for the legislature and the executive to act in harmony if the government is to be carried on efficiently. It is in order to effect this object that constitutional conventions, which have varied from age to age, have been devised. Today, as in the past, much of the practical working of the Constitution depends less upon substantive law enforced by the courts than upon conventional usages founded partly upon the precedents afforded by history and partly upon the needs of the time, which may be said for practical purposes of government to have acquired the force of customary law.

The rules and principles embodied in these conventional usages have been found from experience to be essential to the co-operation of the three parties in whom the legislative and executive functions of government are vested, namely the Crown, the Lords, and the Commons. They are now mainly directed towards ensuring that the government of the country is controlled by a ministry and Cabinet chosen by the electorate, which while remaining responsible to the electorate and so acting in conformity with public opinion, are not unnecessarily hampered in their action either by lack of funds or by inability to procure the legislation they require.

Where the party or combination of parties to which the Cabinet belongs does not control a majority in the House of Commons, this object is not completely attained. In any event, in case of a serious disagreement between the Cabinet and the House of Commons, steps must immediately be taken to restore harmony between the executive and the legislature, either by a resignation of the government or by dissolution of Parliament.

On the other hand the electorate must have the means of choosing a ministry, and for that purpose there must be an Opposition ready to take over the government at a moment's notice. The Opposition must not be hampered in its task of criticising the ministry's conduct and of persuading the electorate that it is better qualified to govern in its stead.

7. Put the words in the following sentences in the correct order:

1. Is / and ideological structure / a Constitution / a system of law / within which / operates / the political.

2. Made and enforced / most countries / a formal / are to be / written Constitution / describing / have / how laws.

3. Sets / the French / term of office / term / the U.S. Constitution / Constitution / a seven year / four / for the President; / year.

4. Signed by 10000 people / has been / in Switzerland, / be held / on any issue / a petition / gathered; / must / for which / a referendum.

5. Vote / a change / requires / a special majority / not the simple / in Germany, / in the Parliament, / majority necessary /in the Constitution / for other laws.

6. It difficult / many other / the Constitution / above / put / by making / to change / other laws / countries.

8. Fill in the blanks with articles, prepositions or postlogues where necessary.

As __ knowledge of __ law has increased among the general public, so have__ number and range of __ constitutional law cases. In 1991__ unmarried couple complained__ the Tokyo District Court that it was unconstitutional for __ local authority to register their daughter as illegitimate. They said it could lead_ individuals guaranteed in pursuing _ discrimination and was against the equality _ Japanese Constitution. Yanomai Indians are claim that it is unconstitutional __ the Brazilian military to block a 1989 court ruling granting them__ autonomy over lands __ the Amazon rainforest. The military has countered _ border security questions must be given priority. _ 1976, Gary Gilmore persuaded __ U.S. Supreme Court that his death sentence should be carried__ since he had been convicted and sentences __ murder according __ due legal processes. This brought __ a resumption __ executions in __ USA which continues __ today.

9. In the exercise which follows, substitute a suitable word or phrase chosen from the list below for the part of each sentence in italics.

a) In contrast to civil-law legal systems, which are based on codes, common-law legal systems are based on decisions of judges in previous cases.

b) The system of rights and remedies developed by the Lord Chancellor and the Court of Chancery is now administered by the ordinary English courts, side by side with the common law.

c) The UK is a State in which a single person called King or Queen holds the office of Head of State for life, but does not have power to govern the country.

d) At English universities the branch of law which deals with rights and duties relating to property and Conveyancing Law are generally studied separately.

e) The supreme power of Parliament to pass any law it wants is probably the most fundamental rule of British constitutional law.

f) In the UK the monarch is the head of all judges.

g) It may be difficult to find time in Parliament for revising and changing the law to make it better when there is no urgent political reason which makes it necessary.

h) The Queen opens new sessions of Parliament with a speech from the throne. This act is part of the remaining rights and powers of the Crown.

the Law of Property

the Cabinet

Equity

the executive

law reform

the judiciary

common law

Royal Prerogative

the legislature judicial precedent

dictatorship

Parliamentary sovereignty

case-law

Constitutional Monarchy

the Law of Contract

Statute.

10. Discussion.

Pros and contras of the U.S. model of separation of powers.

11. a) Describe the main branches of power in your country using the following legal terms:

b) Memorise these terms:

power; powers; powerless; powerful

the legislative power

the executive power

the judicial power

the municipal power

separation of powers

principle of separation of powers

to apply a law

to enact a law

to interpret a law

enactment of a law

application of a law

interpretation of a law

Constitutional law

Constitutional Court

criminal law

election/ electoral law

equity law

international law/ law of nations

resolution

to execute a resolution

to try a cause

policy formulation

policy direction

The Senate

The House of Representatives

The Congress

The Supreme Court

12. Are you good at translating proverbs from Ukrainian into English? Prove it. Make explanatory notes of each proverb in writing.

Закони створені для того, щоб сильний не був всемогутнім.

Незгода громадян часто приводить і великі держави до загибелі.

Там сильний народ, де сильні закони.

Нужда закон ломить.

Хороші закони не виникають із поганих звичаїв.