SEPERATION OF POWERS
PRAGADI 132002097
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Ppt on separation of power in administrative laws, Study notes of Administrative Law
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SEPERATION OF POWERS
PRAGADI 132002097
EVOLUTION
- (^) THE DOCTRINE OF SEPARATION OF POWERS HAS EMERGED IN SEVERAL FORMS AT DIFFERENT PERIODS, ITS ORIGIN IS TRACEABLE TO PLATO AND ARISTOTLE.
- (^) IN 16TH AND 17TH CENTURIES, FRENCH PHILOSOPHER JOHN BODIN AND BRITISH POLITICIAN.
- (^) LOCKE EXPRESSED THEIR VIEWS ABOUT THE THEORY OF SEPARATION OF POWERS
- (^) IT WAS MONTESQUIEU WHO FOR THE FIRST TIME FORMULATED THIS DOCTRINE SYSTEMATICALLY, SCIENTIFICALLY AND CLEARLY IN HIS BOOK ESPIRIT DES LOIS (THE SPIRIT OF THE LAWS), PUBLISHED IN THE YEAR 1748.
THE DOCTRINE OF SEPERATION OF POWER
- (^) THE VESTING OF THE LEGISLATIVE, EXECUTIVE, AND JUDICIARY POWERS OF GOVERNMENT IN SEPARATE BODIES, INDEPENDENT AND DISTINCT FROM EACH OTHER
BEFORE INTRODUCING THE DOCTRINE OF SEPERATION OF POWERS
- (^) WHEN THE LEGISLATIVE AND EXECUTIVE POWERS ARE UNITED IN THE SAME PERSON, OR IN THE SAME BODY OF MAGISTRATES THERE CAN BE NO LIBERTY;
- (^) APPREHENSIONS MAY ARISE,
- (^) TO EXECUTE THEM IN A TYRANNICAL MANNER.
- (^) AGAIN, THERE IS NO LIBERTY, IF THE JUDICIARY POWER BE NOT SEPARATED FROM THE LEGISLATIVE AND EXECUTIVE.
- (^) THERE WOULD BE AN END OF EVERYTHING, WERE THE SAME MAN, OR THE SAME BODY, WHETHER OF THE NOBLES OR OF THE PEOPLE COME OUT TO EXERCISE THOSE THREE POWERS, THAT OF EXECUTING LAWS, THAT OF EXHIBITING THE PUBLIC RESOLUTIONS, AND OF TRYING THE CAUSES OF INDIVIDUALS.
IMPORTANCE
- (^) THE BASIC PURPOSE OF THE DOCTRINE OF SEPARATION OF POWER IS TO DIVIDE GOVERNANCE AGAINST ITSELF BY CREATING A DISTINCT CENTER OF POWER SO THAT THEY COULD PREVENT EACH OTHER FROM THREATENING TYRANNY.
- (^) THE AIM OF THE DOCTRINE OF SEPARATION OF POWER IS TO GUARD AGAINST TYRANNICAL AND ARBITRARY POWERS OF THE STATE.
- (^) THE RATIONALE UNDERLYING THE DOCTRINE HAS BEEN THAT IF ALL POWER IS CONCENTRATED IN ONE AND THE SAME ORGAN OR PERSON THERE WOULD ARISE THE DANGER THAT IT MAY ENACT TYRANNICAL LAWS, EXECUTE THEM IN A DESPOTIC MANNER, AND INTERPRET THEM IN AN ARBITRARY FASHION WITHOUT ANY EXTERNAL CONTROL.
“ THE SECRET OF ENGLISH MEN’S LIBERTY IS THE DOCTRINE OF SEPERATION OF POWERS”
PRINCIPLES
- (^) EXCLUSIVITY PRINCIPLE WHICH SUGGESTS STRUCTURAL DIVISION IN ALL THE THREE ORGANS OF STATE AS IT IS IN THE USA
- (^) FUNCTIONAL PRINCIPLE WHICH PROHIBITS AMALGAMATION AND USURPATION BUT NOT INTERACTION OF ALL THE ORGANS OF STATE.
- (^) CHECK AND BALANCE PRINCIPLE, MEANING, THEREBY, THAT EACH ORGAN OF STATE MAY CHECK THE OTHER TO KEEP IT WITHIN CONSTITUTIONAL BOUNDS.
2 CONTRADICTORYOPINIONS
- (^) NEGATIVE SENSE, IN WHICH THIS DOCTRINE PUTS LIMITS ON THE EXERCISE OF POWER BY EACH ORGAN OF STATE
- (^) POSITIVE SENSE IN WHICH IT NOT ONLY DEMARCATES LIMITS BUT ALSO DEFINES THE MINIMUM CONTENTS OF POWER WITHIN THOSE LIMITS WHICH A COURT CAN ENFORCE TO ACHIEVE CONSTITUTIONAL VALUES.