UNIT V. THE SEPARATION OF POWERS

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Vocabulary

1. separation [ˌsep(ə)’reɪʃ(ə)n] n	– разделение
2. power [‘pauə] n	– власть
3. imprecisely [ˌɪmprɪ’saɪsli] adv	– неопределенно, неточно
4. interchangeably [ˌɪntə’ʧeɪnʤəblɪ] adv	– взаимозаменяемо
5. trias [ʹtraıæs]	– число три, триада
6. branch [brɑːnʧ] n	– ветвь
7. legislature [‘leʤɪsləʧə ] n	– законодательная власть
8. judiciary [ʤuː’dɪʃ(ə)rɪ] n	– судебная власть
9. executive [ɪg’zekjutɪv] n	– исполнительная власть
10. enforce [ɪn’fɔːs ], [en-] v	– проводить в жизнь
11. tripartite [ˌtraɪ’pɑːtaɪt] adj	– состоящий из трех частей
12. approach [ə’prəuʧ] n	– подход
13. excessively [ikˈsesivlē] adv	– чрезмерно
14. usurp [juː’zɜːp] v	– узурпировать, незаконно захватывать
15. discern [dɪ’sɜːn] v	– различать
16. apparent [ə’pær(ə)nt] adj	– кажущийся
17. merely [‘mɪəlɪ] adv	– только
18. unchecked [ʌn’ʧekt] adj	– беспрепятственный
19. sole [səul] adj	– единственный
20. internal [ɪn’tɜːn(ə)l] adj	– внутренний
21. enact [ɪ’nækt ], [en’-] v	– предписывать, определять
22. amend [ə’mend] v	– совершенствовать, улучшать, вносить поправки
23. repeal [rɪ’piːl] v	– аннулировать, отменять
24. steer [stɪə] v	– направлять
25. court [kɔːt] n	– суд
26. dispute [dɪs’pjuːt ], [‘dɪspjuːt] n	– диспут, спор, разногласия
27. plenary [‘pliːn(ə)rɪ] adj	– безоговорочный
28. apply [ə’plaɪ] v	– применять
29. equal [‘iːkwəl] adj	– равный, одинаковый
30. Supreme Court [sju(ː),priːm,kɔːt]	– Верховный суд
31. lower courts	– низшие суды

Text

The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state (or who controls the state).

The separation of powers system is designed to distribute authority among several branches — an attempt to preserve individual liberty in response to tyrannical leadership throughout history. The executive officer is not supposed to make laws (the role of the legislature) or interpret them (the role of the judiciary). The role of the executive is to enforce the law as written by the legislature and interpreted by the judicial system.

The model was first developed in ancient Greece. Under this model, the state is divided into branches, each with separate and independent powers and areas of responsibility so that the powers of one branch are not in conflict with the powers associated with the other branches.

The term tripartite system is ascribed to French Enlightenment political philosopher Baron de Montesquieu. In The Spirit of the Laws (1748), Montesquieu described the separation of political power among a legislature, an executive, and a judiciary. Montesquieu’s approach was to present and defend a form of government which was not excessively centralized in all its powers to a single monarch or similar ruler. He based this model on the Constitution of the Roman Republic and the British constitutional system. Montesquieu took the view that the Roman Republic had powers separated so that no one could usurp complete power. In the British constitutional system, Montesquieu discerned a separation of powers among the monarch, Parliament, and the courts of law. Montesquieu did actually specify that “the independence of the judiciary has to be real, and not apparent merely”. “The judiciary was generally seen as the most important of powers, independent and unchecked”, and also was considered dangerous.

The division of power into separate branches of government is central to the idea of the separation of powers. The typical division of branches is into a legislature, an executive, and a judiciary.

The executive is the part of the government that has sole authority and responsibility for the daily administration of the state. The executive branch executes, or enforces the law.

A legislature is a state’s internal decision-making organization, usually associated with national government, that has the power to enact, amend, and repeal public policy. Legislatures observe and steer governing actions and usually have exclusive authority to amend the budget or budgets involved in the process. The most common names for national legislatures are “parliament” and “congress”, although these terms have more specific meanings.

The judiciary (also known as the judicial system or court system) is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes. Under the doctrine of the separation of powers, the judiciary generally does not make law (that is, in a plenary fashion, which is the responsibility of the legislature) or enforce law (which is the responsibility of the executive), but rather interprets law and applies it to the facts of each case. This branch of the state is often tasked with ensuring equal justice under law. It usually consists of a court of final appeal (called the “Supreme court” or “Constitutional court”), together with lower courts.

Supplementary text

The executive is the part of the government that has sole authority and responsibility for the daily administration of the state. The executive branch executes, or enforces the law. The division of power into separate branches of government is central to the idea of the separation of powers.

The executive can be the source of certain types of law, including decree or executive order. Executive bureaucracies are commonly the source of regulations.

Executive means leader of office or many office run. The top leadership roles of the executive branch may include:

head of state—often the de jure leader, the chief public representative and living symbol of national unity.

head of government—often the de facto leader, prime minister, overseeing the administration of all affairs of state.

defence minister—overseeing the armed forces, determining military policy and managing external safety.

interior minister—overseeing the police forces, enforcing the law and managing internal safety.

foreign minister—overseeing the diplomatic service, determining foreign policy and managing foreign relations.

finance minister—overseeing the treasury, determining fiscal policy and managing national budget.

justice minister—overseeing criminal prosecutions, corrections, enforcement of court orders.

In a presidential system the leader of the executive branch is both the head of state and head of government. In a parliamentary system, a cabinet minister responsible to the legislature is the head of government, while the head of state is usually a largely ceremonial monarch or president. In the United States, this branch of the government is controlled by the President and his cabinet.

Because members of legislatures usually sit together in a specific room to deliberate, seats in that room may be assigned exclusively to members of the legislature. In parliamentary language, the term “seat” is sometimes used to mean that someone is a member of a legislature. For example, to say that a legislature has 100 “seats” means that there are 100 members of the legislature; and saying that someone is “contesting a seat” means they are trying to be elected as a member of the legislature. By extension, the term “seat” is often used in less formal contexts to refer to an electoral district itself, as, for example, in the phrases “safe seat” and “marginal seat”.

In parliamentary systems of government, the executive is responsible to the legislature which may remove it with a vote of no confidence. According to the separation of powers doctrine, the legislature in a presidential system is considered an independent and coequal branch of government along with both the judiciary and the executive.

A legislature creates a complex interaction between individual members, political parties, committees, rules of parliamentary procedure, and informal norms.

A legislature is composed of one or more deliberative assemblies that separately debate and vote upon bills. These assemblies are normally known as chambers or houses. A legislature with only one house is a unicameral legislature, while a bicameral legislature possesses two separate chambers, usually described as an “upper house” and a “lower house”. These usually differ in the duties and powers they exercise – the upper house being more revisionary or advisory in parliamentary systems – and the methods used for the selection of members. Tricameral legislatures are rare; the Massachusetts Governor’s Council still exists, but the most recent national example existed in the waning years of caucasian-minority rule in South Africa.

In presidential systems, the powers of the two houses are often similar or equal, while in federations, the upper house typically represents the federation’s component states. This is a case with the supranational legislature of the European Union. The upper house may either contain the delegates of state governments – as in the European Union and in Germany and, before 1913, in the United States – or be elected according to a formula that grants equal representation to states with smaller populations, as is the case in Australia and the United States since 1913. In the United States the legislative branch is split into the Senate and the House of Representatives.

In many jurisdictions the judicial branch has the power to change laws through the process of judicial review. Courts with judicial review power may annul the laws and rules of the state when it finds them incompatible with a higher norm, such as primary legislation, the provisions of the constitution or international law. Judges constitute a critical force for interpretation and implementation of a constitution, thus de facto in common law countries creating the body of constitutional law.

In the US during recent decades the judiciary became active in economic issues related with economic rights established by constitution because “economics may provide insight into questions that bear on the proper legal interpretation”. Since many countries with transitional political and economic systems continue treating their constitutions as abstract legal documents disengaged from the economic policy of the state, practice of judicial review of economic acts of executive and legislative branches have begun to grow.

In the 1980s, the Supreme Court of India for almost a decade had been encouraging public interest litigation on behalf of the poor and oppressed by using a very broad interpretation of several articles of the Indian Constitution.

Budget of the judiciary in many transitional and developing countries is almost completely controlled by the executive. The latter undermines the separation of powers, as it creates a critical financial dependence of the judiciary. The proper national wealth distribution including the government spending on the judiciary is subject of the constitutional economics. It is important to distinguish between the two methods of corruption of the judiciary: the state (through budget planning and various privileges), and the private.

The term “judiciary” is also used to refer collectively to the personnel, such as judges, magistrates and other adjudicators, who form the core of a judiciary (sometimes referred to as a “bench”), as well as the staffs who keep the system running smoothly.

English for Law Students

UNIT V. THE SEPARATION OF POWERS