Information

Seperation of Powers - History


Separation of Powers - division of governmental authority among the three branches of government: executive, legislative, and judicial branch. The US Constitution uses this principle in setting up the presidency, the Congress, and the courts.

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Separation of Powers: A System of Checks and Balances

The governmental concept of the separation of powers was incorporated into the U.S. Constitution to ensure that no single person or branch of the government could ever become too powerful. It is enforced through a series of checks and balances.

Specifically, the system of checks and balances is intended to make sure that no branch or department of the federal government is allowed to exceed its bounds, guard against fraud, and allow for the timely correction of errors or omissions. Indeed, the system of checks and balances acts as a sort of sentry over the separated powers, balancing the authorities of each branch of government. In practical use, the authority to take a given action rests with one department, while the responsibility to verify the appropriateness and legality of that action rests with another.


American History

The principle of Separation of powers is a governance technique, initially used by the Greeks but later adopted by the Romans. It simply means separation and division of power between, the three arms of government that is the executive, legislature and judiciary. The constitution under Article, one, two and three, make it possible for the principle to function. Thus the framers of the constitution adopted it in order to curb tyranny and preserve democracy. Madison is credited for the incorporation, of this principle, into the constitution, having been influenced by the ideas of Baron de Montesquieu.
Subsequently, the framers of the constitution, adopted another principle based on separation of powers, termed as checks and balances under which, each branch can partially limit the operations of the others, as noted in the powers of judicial review.

Background
Also known as trias politician, separation of powers is a governance technique applied by states or republics that are democratic. According to scholars, this form of governance bases its origin in ancient Greece. However, it was later adopted by the Roman republic in its constitution .Based on this technique, the state or nation is divided into branches, these branches include the executive, legislature, and judiciary. Thus according to the constitution, the government of America is fundamentally based on this model, in which powers and responsibilities are divided among the three branches, that is the executive representing the president, the judiciary representing the court and finally the legislative which comprises of the bicameral congress.

Thus, in order to understand the issues of separation of powers, its important to understand, the constitution. According to the concise dictionary of politics (2003), constitution refers to a set of rules that govern the politics of a nation or a sub national body. The American constitution is thus a document, which states the laws governing the state and lists the powers and duties of the government and the rights of people (Randolph, 2003). The first draft of the constitution was drafted in 1787 in Philadelphia at the Constitutional Convention but was not completely absorbed until its ratification in 1789 by the then 13 states, later it was accommodated by the other states. Up to date the constitution has been amended 27 times.

US constitution being the shortest constitution in the world generally comprises of the, Preamble, twenty seven amendments, Articles and a final paragraph that authenticates its enactment by the Philadelphian convention. The preamble, just illustrates the importance of adhering to the precepts of the constitution, and calls upon all parties to respect the constitutional authority.

The First three Articles of the constitution.
The Articles stipulate the powers of the three arms of governments, the rules governing elections and establishment of political parties. The Constitution through the Articles defines every power and responsibility of Congress it reads All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. The first Article defines the congress, which includes the Senate and House of Representatives. According to this Article, the two houses shall be equal. Also under this Article, the rules governing the election and qualifications of members of each house are laid down. Section one, gives the Congress power to make rules governing its operation and power to control government. Section 8 establishes that, all powers are the general and exclusive right of the legislature. For instance the Congress shall have powers to make laws, which shall make it possible for other departments, the US government and individuals to execute the powers bestowed upon them. In the same Article, a total of eight limitations on the powers of the congress are stated.

Though not the most powerful branch, the powers vested upon the Congress are enormous. According to the Constitution, each chamber of the Congress has specific powers. Some of the overall powers of the congress include, the power to declare war in case of an act of aggression or any other cause, the power to collect and regulate taxes, the power to promote technological development through encouraging science and technological advancement, the power to impeach the president, to establish courts, establish and maintain the navy, to make rules governing the establishment and functioning of both the navy and the army. The Congress also has power to collect taxes and to regulate the value of the countries currency. However the most important function and power of the Congress is the power to make laws. Any legislation to become law should be introduced into the congress by a member of the congress and subsequently debated and passed by the two chambers. The first stage, usually involves the consideration of the bill by a standing committee. Moreover the standing committees are empowered to amend the bill. Eventually the bill, its debated in congress and if agreed upon, presented to the president, who signs it to become law.

Article two of the Constitution defines the powers of the executive. According to the Constitution this powers are bestowed upon the president. Under section one, the term of office is specified, both for president and vice-president, which is four years. Also qualification of presidential candidate and president are laid down, including the issue of succession. Succession by the vice president can occur in case of presidents impeachment, death, inability to discharge duties and resignation. . In section two the presidents powers are underpinned for instance heshe is Commander in chief of the armed forces, has power to give pardons, has powers to make treaties but with advice of the senate. In this case a two third majority is required. Through the advice of senate the president is also, given powers to appoint Supreme Court judges, ministers and ambassadors, these appointments should be during recess. The president also ensures that laws are executed, has power to adjourn the congress, if a stalemate occurs between the two houses on adjournment. Under section 4, the presidents conduct is addressed and hisher reasons for removal from power, which includes, on grounds of treason, bribery or through impeachments.

Article 3 describes the powers of the judiciary. Under this article there is only one court that is the Supreme Court. This court has power to hear petitions, cases of appeal and deal with all matters of constitutional conflicts.

Separation of Powers in America
According to historians and lawmakers, the concept of separation of powers in the American constitution is attributed to Madison, who during the framing of the constitution advised the Framers of the constitution to adopt it. However the original ideas came from the great French philosopher Baron de Montesquieu (Vile, 1967). Having closely monitored the British model of governance, he presented the idea to the Framers of the Constitution, who were subsequently influenced by Madison to incorporate it.

So what influenced the framers of the constitution to adopt, separation of powers in the constitution Lawmakers argue that, the evils associated to monarchy might have influenced the then framers of the Constitution. At the time, they were aware of the monarchy system which is believed to have bestowed enormous powers to one individual, the king. Another reason might have been the desire to control human nature, (Vile, 1967), as Madison described, men are bound, to be dictated by their passions rather than reason, when excess power is bestowed upon them descanting any hope of justice. However the prime reason was to curb tyranny. Thus its upon this consideration that Madison and federalists took into consideration while seeking to convince the Framers to accept the concept of separation of powers.

However, there was a stalemate over the issue of separation of powers in that the anti federalist argued that, by allowing such model, the Constitution would render one branch more powerful to the other thus resulting to abuse of power. Madison, in countering their argument proposed that a model be adopted in which the branches would intermarry and have a partial influence over the acts of others through a system he called checks and balances. Thus federalism and bicameralism was instituted into the Constitution based on separation of powers and checks and balances. Checks and balance is a system of government under which the three separate arms of government are mandated to check and prevent actions by the other arms and are forced to share powers and responsibilities (.Campbell, 1952).

Its the statement of Lawmakers that, due to evils associated with concentration of powers to one branch, the Framers of the Constitution thus agreed, to distribute power among the three branches of government. That is the executive, the legislative and the judiciary as described in the American constitution. Through out the history of America, that separation of power has always been adhered to, though not to the fullest degree. For instance the case of Hayden in 1952 led to judges of the courts refusing to adhere to a directive by the federal government, in which they were supposed to review, the war pension scheme. In defending their decision, they held that since the task fell on the docket of Secretary of state, an official in the executive, they could not interfere, with the constitutional power bestowed upon the executive. As such, the first three Articles of the U.S. Constitution, state that, the powers of the federal government be divided among the three separate arms of government the executive, legislature and the judiciary branch.

Under the concept of separation of powers, the constitution defines that, each arm is independent, has a separate responsibility and function, and may not interfere or undertake the functions of another branch. Though cogently expressed, the branches cannot function without each other as they are interrelated. Thus they function together in the sense that, they jointly work and cooperate together in ensuring that each branch does not try to assume excess power. This relationship is described as one of checks and balances, where the functions of one branch serve to limit and change the power of another. (Diamond, 1981). Through this ingenious model and system of government, the Framers of our Constitution, sought to promote Liberty and safeguard the nation against any form of tyranny. However despite the framers decision, frictions have continued to exist between the three branches of government.(Campbell,1952)

Under the model of separation of powers, the three arms of government have independent and unique function. For instance this legislative arm of government makes all the laws through legislation of policies introduced into the Congress by members, having been drafted by lobbyists. The executive branch headed by the president is mandated under Article two of the Constitution, to implement the laws. While the judiciary which comprises of the court system, headed by the Supreme Court, interprets the said laws .The taxation system of the government, provides a good example of how powers are separated among the three branches of the federal government. The congress under taxation system passes all the necessary legislations regarding taxes. The executive, that is the president, appoints a director of revenue services, who is responsible for implementing the laws through tax collection. The courts headed by the Supreme courts rule on any legal issues arising from the carrying out of the tax laws.

According to Campbell (1952), the doctrine of separation of powers, also illustrates the difference in qualification, term of service and procedures for electing or appointing officials in each branch of government. Through the three articles, the term of services of each branch officials are stipulated. According to Article two of the constitution, the presidents term of office is stated as four years, also under this Article the procedures and qualifications of a presidential candidate is specified, this is different from officials of the other three branches of government. The age limit under this Article is 35 years and above. Under Article one, the rules governing the election of Congress men is stated and also the rules governing the code of conduct of each member. The constitution thus distinguishes the time and qualification details of each Congress official. Article three also lays down the requirements of Supreme Court judges, the term of service and the reasons for impeachment of any court judge. All this is only attainable in a situation where separation of powers is stated.

Historians argue that for separation of powers to be successful, a system of checks and balance is necessary. Through checks and balance, each branch of government can limit and control the actions of the others. (Vile, 1967) For instance under the concept of judicial review, the supreme court of America ,uses its power to limit the legislative and the executive arms of government and thus ensure separation of powers. The judicial review powers, thus enables the Supreme Court to challenge any actions of the legislative and executive and decide whether they are constitutional or not. If the actions are unconstitutional, the court has the power to declare them null and void.

Since 1803, the Supreme Court has used its powers of judicial review to declare more than 150 acts of the legislative and the executive unconstitutional. In a major historical and phenomenal ruling, the Supreme Court declared the acts of President Truman unconstitutional. In this case, the then president had used his executive authority to take control of Youngstown sheet and Tube Co, a privately owned steel mill. Campbell (1952) states the judicial branch must rule by categories in announcing a general principle that produces result, in a particular case (pg 21). In another case the Supreme Court used its judicial review powers to invalidate the actions of Congress and President Clinton, in which the Congress had passed a law allowing the President to invalidate or reject an issue in an appropriation bill passed by the Congress and signed by the president. In this case the Supreme Court applied the issue of separation of power and argued that the passed bill would violate Article one of the Constitution.

Another aspect of checks and balance is demonstrated in the ability of the president to veto bills passed by the congress. The executive through its powers can decide whether to sign a bill passed in parliament into law or not. By so doing the president can check the actions of the legislative. On the other hand the Congress can make decisions that affect the actions of the legislative. For instance, the president is allowed to make treaties and appoints ambassadors however these powers are limited by the legislative, in the sense that, the appointments should be approved by the congress. Also the power to declare war is vested on the legislative, despite the president being the commander in chief of the armed forces. For instance, during the Vietnam War, the Congress approved, the said war by providing the troops and funding them. Thus according to Campbell (1952) one way approach to easing institutional friction between the executive and legislative branch is legislative veto (p.15)

Separation of powers and democracy
Democracy has often been termed as a government of the people, for the people, by the people. Thus democracy is achievable in the case where the citizens of a country are not oppressed and enjoy their freedoms and rights. Scholars argue that for democracy to prevail, the powers of government should not be vested into the hands of any individual or institution, department or branch of government. Thus under the principle of separation of powers, the principle core values of democracy are established.

The American government has often been praised as a true democracy that ensures liberty and often been called the land where dreams are realized. This has only been achieved as a result of distribution of powers among the different branches of government and by allowing the system of checks and balance. Under this approach and model the government becomes, excessively strong, and capable of carrying out its obligations to the people or citizens, without curtailing their freedom and liberty.

Undemocratic aspect of separation of powers
Critics of separation of powers, argue that, for democracy to prevail, its sometimes relevant to bestow a lot of powers upon one branch of government. They father quip that, sovereignty of one government branch, more so the parliamentary system of government brings power closer to the people, an aspect that the principle of separation of powers does not entail.

In the case of separation of powers where the policy implementation are sometimes influenced by party majority in the congress, the president representing the party with majority Congress members, might collude with the legislature to implement policies which are in favour of their political agendas (Vile,1967). This might prove undemocratic and thus lead to death, of the very core values of constitutional democracy.

Another short coming of the principle of separation of powers is lack of accountability among the different branches of government. According to Vile (1967), separating and dividing the powers between different identities brings about a situation in which each branch cannot account for its actions. For instance, under the American constitution, the president is only responsible to the electorate who get to vote him or her after a period of four years. This is also reminiscent in the congress where members are accountable to the electorate. This is contrally to the parliamentary system where the prime minister has clearly defined powers, he or she is accountable.

Conclusion
Its wise to conclude that, though the issue of separation of powers is not entirely practiced as demonstrated by the existing friction between the various branches of government, its incorporation by the framers of the constitution, helped avert gross abuse of power as demonstrated by some models of government. Thus through checks and balances the true seed of liberty and democracy was sworn into our system, and its these aspects, that have helped to define America as the land of opportunities and freedom.


Judicial Enforcement

Throughout much of our history, the “political branches” have contended between themselves in application of the separation-of-powers doctrine. Many notable political disputes turned on questions involving the doctrine. Because the doctrines of separation of powers and of checks and balances require both separation and intermixture,9 the role of the Supreme Court in policing the maintenance of the two doctrines is problematic at best. Indeed, it is only in recent decades that cases involving the doctrines have regularly been decided by the Court. Previously, informed understandings of the principles have underlain judicial construction of particular clauses or guided formulation of constitutional common law. That is, the nondelegation doctrine was from the beginning suffused with a separation-of-powers premise,10 and the effective demise of the doctrine as a judicially enforceable construct reflects the Court’s inability to give any meaningful content to it.11 On the other hand, periodically, the Court has taken a strong separation position on behalf of the President, sometimes unsuccessfully12 and sometimes successfully.

Following a lengthy period of relative inattention to separation of powers issues, the Court since 197613 has recurred to the doctrine in numerous cases, and the result has been a substantial curtailing of congressional discretion to structure the National Government. Thus, the Court has interposed constitutional barriers to a congressional scheme to provide for a relatively automatic deficit-reduction process because of the critical involvement of an officer with significant legislative ties,14 to the practice set out in more than 200 congressional enactments establishing a veto of executive actions,15 and to the vesting of broad judicial powers to handle bankruptcy cases in officers not possessing security of tenure and salary.16 On the other hand, the highly debated establishment by Congress of a process by which independent special prosecutors could be established to investigate and prosecute cases of alleged corruption in the Executive Branch was sustained by the Court in a opinion that may presage a judicial approach in separation of powers cases more accepting of some blending of functions at the federal level.17

Important as the results were in this series of cases, the development of two separate and inconsistent doctrinal approaches to separation of powers issues occasioned the greatest amount of commentary. The existence of the two approaches, which could apparently be employed in the discretion of the Justices, made difficult the prediction of the outcomes of differences over proposals and alternatives in governmental policy. Significantly, however, it appeared that the Court most often used a more strict analysis in cases in which infringements of executive powers were alleged and a less strict analysis when the powers of the other two branches were concerned. The special prosecutor decision, followed by the decision sustaining the Sentencing Commission, may signal the adoption of a single analysis, the less strict analysis, for all separation of power cases or it may turn out to be but an exception to the Court’s dual doctrinal approach.18

Although the two doctrines have been variously characterized, the names generally attached to them have been “formalist,” applied to the more strict line, and “functional,” applied to the less strict. The formalist approach emphasizes the necessity to maintain three distinct branches of government through the drawing of bright lines demarcating the three branches from each other determined by the differences among legislating, executing, and adjudicating.19 The functional approach emphasizes the core functions of each branch and asks whether the challenged action threatens the essential attributes of the legislative, executive, or judicial function or functions. Under this approach, there is considerable flexibility in the moving branch, usually Congress acting to make structural or institutional change, if there is little significant risk of impairment of a core function or in the case of such a risk if there is a compelling reason for the action.20

Chadha used the formalist approach to invalidate the legislative veto device by which Congress could set aside a determination by the Attorney General, pursuant to a delegation from Congress, to suspend deportation of an alien. Central to the decision were two conceptual premises. First, the action Congress had taken was legislative, because it had the purpose and effect of altering the legal rights, duties, and relations of persons outside the Legislative Branch, and thus Congress had to comply with the bicameralism and presentment requirements of the Constitution.21 Second, the Attorney General was performing an executive function in implementing the delegation from Congress, and the legislative veto was an impermissible interference in the execution of the laws. Congress could act only by legislating, by changing the terms of its delegation.22 In Bowsher, the Court held that Congress could not vest even part of the execution of the laws in an officer, the Comptroller General, who was subject to removal by Congress because to do so would enable Congress to play a role in the execution of the laws. Congress could act only by passing other laws.23

On the same day that Bowsher was decided through a formalist analysis, the Court in Schor used the less strict, functional approach in resolving a challenge to the power of a regulatory agency to adjudicate a state common-law issue—the very kind of issue that Northern Pipeline, in a formalist plurality opinion with a more limited concurrence, had denied to a non-Article III bankruptcy court.24 Sustaining the agency’s power, the Court emphasized “the principle that ‘practical attention to substance rather than doctrinaire reliance on formal categories should inform application of Article III.’ ”25 It held that, in evaluating such a separation of powers challenge, the Court had to consider the extent to which the “essential attributes of judicial power” were reserved to Article III courts and conversely the extent to which the non-Article III entity exercised the jurisdiction and powers normally vested only in Article III courts, the origin and importance of the rights to be adjudicated, and the concerns that drove Congress to depart from the requirements of Article III.26 Bowsher, the Court said, was not contrary, because, “[u]nlike Bowsher, this case raises no question of the aggrandizement of congressional power at the expense of a coordinate branch.”27 The test was a balancing one—whether Congress had impermissibly undermined the role of another branch without appreciable expansion of its own power.

Although the Court, in applying one or the other analysis in separation-of-powers cases, had never indicated its standards for choosing one analysis over the other, beyond implying that the formalist approach was proper when the Constitution fairly clearly committed a function or duty to a particular branch and the functional approach was proper when the constitutional text was indeterminate and a determination must be made on the basis of the likelihood of impairment of the essential powers of a branch, the overall results had been a strenuous protection of executive powers and a concomitant relaxed view of the possible incursions into the powers of the other branches. It was thus a surprise when, in the independent counsel case, the Court, again without stating why it chose that analysis, used the functional standard to sustain the creation of the independent counsel.28 The independent-counsel statute, the Court emphasized, was not an attempt by Congress to increase its own power at the expense of the executive nor did it constitute a judicial usurpation of executive power. Moreover, the Court stated, the law did not “impermissibly undermine” the powers of the Executive Branch nor did it “disrupt the proper balance between the co-ordinate branches [by] prevent[ing] the Executive Branch from accomplishing its constitutionally assigned functions.”29 Acknowledging that the statute undeniably reduced executive control over what it had previously identified as a core executive function, the execution of the laws through criminal prosecution, through its appointment provisions and its assurance of independence by limitation of removal to a “good cause” standard, the Court nonetheless noticed the circumscribed nature of the reduction, the discretion of the Attorney General to initiate appointment, the limited jurisdiction of the counsel, and the power of the Attorney General to ensure that the laws are faithfully executed by the counsel. This balancing, the Court thought, left the President with sufficient control to ensure that he is able to perform his constitutionally assigned functions. A notably more pragmatic, functional analysis suffused the opinion of the Court when it upheld the constitutionality of the Sentencing Commission.30 Charged with promulgating guidelines binding on federal judges in sentencing convicted offenders, the seven-member Commission, three members of which had to be Article III judges, was made an independent entity in the judicial branch. The President appointed all seven members, the judges from a list compiled by the Judicial Conference, and he could remove from the Commission any member for cause. According to the Court, its separation-of-powers jurisprudence is always animated by the concerns of encroachment and aggrandizement. “Accordingly, we have not hesitated to strike down provisions of law that either accrete to a single Branch powers more appropriately diffused among separate Branches or that undermine the authority and independence of one or another coordinate Branch.”31 Thus, to each of the discrete questions, the placement of the Commission, the appointment of the members, especially the service of federal judges, and the removal power, the Court carefully analyzed whether one branch had been given power it could not exercise or had enlarged its powers impermissibly and whether any branch would have its institutional integrity threatened by the structural arrangement.

Although it is possible, even likely, that Morrison and Mistretta represent a decision by the Court to adopt the functional analysis for all separation-of-powers cases, the history of adjudication since 1976 and the shift of approach between Myers and Humphrey’s Executor suggest caution. Recurrences of the formalist approach have been noted. Additional decisions must be forthcoming before it can be decided that the Court has finally settled on the functional approach.

Footnotes

1 Among the best historical treatments are M. Vile, Constitutionalism and the Separation of Powers (1967), and W. Gwyn, The Meaning of the Separation of Powers (1965). 2 Thus the Constitution of Virginia of 1776 provided: “The legislative, executive, and judiciary department shall be separate and distinct, so that neither exercise the powers properly belonging to the other nor shall any person exercise the powers of more than one of them, at the same time[.]” Reprinted in 10 S OURCES AND DOCUMENTS OF UNITED STATES CONSTITUTIONS 52 (W. S. Windler ed., 1979). See also 5 id. at 96, Art. XXX of Part First, Massachusetts Constitution of 1780: “In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them the executive shall never exercise the legislative and judicial powers, or either of them the judicial shall never exercise the legislative and executive powers, or either of them to the end it may be a government of laws, and not of men.” 3 “In republican government the legislative authority, necessarily, predominates.” T HE FEDERALIST , No. 51 (J. Cooke ed. 1961), 350 (Madison). See also id. at No. 48, 332–334. This theme continues today to influence the Court’s evaluation of congressional initiatives. E.g., Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252, 273–74, 277 (1991). But compare id. at 286 n.3 (Justice White dissenting). 4 The intellectual history through the state period and the Convention proceedings is detailed in G. W OOD, THE CREATION OF THE AMERICAN REPUBLIC , 1776–1787 (1969) (see index entries under “separation of powers”). 5 THE FEDERALIST Nos. 47–51 (J. Cooke ed. 1961), 323–353 (Madison). 6 Id. at No. 47, 325–326 (emphasis in original). 7 Id. at Nos. 47–49, 325–343. 8 Id. at No. 51, 349. 9 “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Justice Jackson concurring). 10 E.g., Field v. Clark, 143 U.S. 649, 692 (1892) Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42 (1825). 11 See Mistretta v. United States, 488 U.S. 361, 415–16 (1989) (Justice Scalia dissenting). 12 The principal example is Myers v. United States, 272 U.S. 52 (1926), written by Chief Justice Taft, himself a former President. The breadth of the holding was modified in considerable degree in Humphrey’s Executor v. United States, 295 U.S. 602 (1935), and the premise of the decision itself was recast and largely softened in Morrison v. Olson, 487 U.S. 654 (1988). 13 Beginning with Buckley v. Valeo, 424 U.S. 1, 109–43 (1976), a relatively easy case, in which Congress had attempted to reserve to itself the power to appoint certain officers charged with enforcement of a law. 14 Bowsher v. Synar, 478 U.S. 714 (1986). (1898). 15 INS v. Chadha, 462 U.S. 919 (1983). 16 Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982). 17 Morrison v. Olson, 487 U.S. 654 (1988). See also Mistretta v. United States, 488 U.S. 361 (1989). 18 The tenor of a later case, Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Airport Noise, 501 U.S. 252 (1991), was decidedly formalistic, but it involved a factual situation and a doctrinal predicate easily rationalized by the principles of Morrison and Mistretta, aggrandizement of its powers by Congress. Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989), reasserted the fundamental status of Marathon, again in a bankruptcy courts context, although the issue was the right to a jury trial under the Seventh Amendment rather than strictly speaking a separation-of-powers question. Freytag v. Commissioner, 501 U.S. 868 (1991), pursued a straightforward appointments-clause analysis, informed by a separation-of-powers analysis but not governed by it. Finally, in Public Citizen v. U.S. Department of Justice, 491 U.S. 440, 467 (1989) (concurring), Justice Kennedy would have followed the formalist approach, but he explicitly grounded it on the distinction between an express constitutional vesting of power as against implicit vestings. Separately, the Court has for some time viewed the standing requirement for access to judicial review as reflecting a separation-of-powers component—confining the courts to their proper sphere—Allen v. Wright, 468 U.S. 737, 752 (1984), but that view seemed largely superfluous to the conceptualization of standing rules. However, in Lujan v. Defenders of Wildlife, 504 U.S. 555, 577 (1992), the Court imported the take-care clause, obligating the President to see to the faithful execution of the laws, into standing analysis, creating a substantial barrier to congressional decisions to provide for judicial review of executive actions. It is not at all clear, however, that the effort, by Justice Scalia, enjoys the support of a majority of the Court. Id. at 579–81 (Justices Kennedy and Souter concurring). The cited cases seem to demonstrate that a strongly formalistic wing of the Court continues to exist. 19 “The hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power . . . must be resisted. Although not ‘hermetically’ sealed from one another, the powers delegated to the three Branches are functionally identifiable.” INS v. Chadha, 462 U.S. 919, 951 (1983). See id. at 944–51 Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 64–66 (1982) (plurality opinion) Bowsher v. Synar, 478 U.S. 714, 721–727 (1986). 20 CFTC v. Schor, 478 U.S. 833 (1986) Thomas v. Union Carbide Agric. Products Co., 473 U.S. 568, 587, 589–93 (1985). The Court had first formulated this analysis in cases challenging alleged infringements on presidential powers, United States v. Nixon, 418 U.S. 683, 713 (1974) Nixon v. Administrator of General Services, 433 U.S. 425, 442–43 (1977), but it had subsequently turned to the more strict test. Schor and Thomas both involved provisions challenged as infringing judicial powers. 21 INS v. Chadha, 462 U.S. 919, 952 (1983). 22 462 U.S. at 952. 23 Bowsher v. Synar, 478 U.S. 714, 726–727, 733–734 (1986). 24 Although the agency in Schor was an independent regulatory commission and the bankruptcy court in Northern Pipeline was either an Article I court or an adjunct to an Article III court, the characterization of the entity is irrelevant and, in fact, the Court made nothing of the difference. The issue in each case was whether the judicial power of the United States could be conferred on an entity that was not an Article III court. 25 CFTC v. Schor, 478 U.S. 833, 848 (1986) (quoting Thomas v. Union Carbide Agric. Products Co., 473 U.S. 568, 587 (1985)). 26 Schor, 478 U.S. at 851. 27 478 U.S. at 856. 28 To be sure, the Appointments Clause (Article II, § 2) specifically provides that Congress may vest in the courts the power to appoint inferior officers, Morrison v. Olson, 487 U.S. 654, 670–677 (1988), making possible the contention that, unlike Chadha and Bowsher, Morrison is a textual commitment case. But the Court’s separate evaluation of the separation of powers issue does not appear to turn on that distinction. Id. at 685–96. Nevertheless, the existence of this possible distinction should make one wary about lightly reading Morrison as a rejection of formalism when executive powers are litigated. 29 487 U.S. at 695 (quoting, respectively, Schor, 478 U.S. at 856, and Nixon v. Administrator of General Services, 433 U.S. at 443). 30 Mistretta v. United States, 488 U.S. 361 (1989). Significantly, the Court acknowledged reservations with respect to the placement of the Commission as an independent entity in the judicial branch. Id. at 384, 397, 407–08. As in Morrison, Justice Scalia was the lone dissenter, arguing for a fairly rigorous application of separation-of-powers principles. Id. at 413, 422–27. 31 488 U.S. at 382.

Contents

Although credit for popularizing the expression "the rule of law" in modern times is usually given to A. V. Dicey, [9] [10] development of the legal concept can be traced through history to many ancient civilizations, including ancient Greece, Mesopotamia, India, and Rome. [11]

Antiquity Edit

In ancient Palestine , God's law was equally binding on all. Nobody was entitled to add or subtract from it, and judges were warned not to discriminate in favor of the mighty. (Deut. 4:2 Lev. 19:15)

In the West, the ancient Greeks initially regarded the best form of government as rule by the best men. [12] Plato advocated a benevolent monarchy ruled by an idealized philosopher king, who was above the law. [12] Plato nevertheless hoped that the best men would be good at respecting established laws, explaining that "Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state." [13] More than Plato attempted to do, Aristotle flatly opposed letting the highest officials wield power beyond guarding and serving the laws. [12] In other words, Aristotle advocated the rule of law:

It is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws. [7]

The Roman statesman Cicero is often cited as saying, roughly: "We are all servants of the laws in order to be free." [14] During the Roman Republic, controversial magistrates might be put on trial when their terms of office expired. Under the Roman Empire, the sovereign was personally immune (legibus solutus), but those with grievances could sue the treasury. [9]

In China, members of the school of legalism during the 3rd century BC argued for using law as a tool of governance, but they promoted "rule by law" as opposed to "rule of law," meaning that they placed the aristocrats and emperor above the law. [15] In contrast, the Huang–Lao school of Daoism rejected legal positivism in favor of a natural law that even the ruler would be subject to. [16]

There has recently been an effort to reevaluate the influence of the Bible on Western constitutional law. In the Old Testament, the book of Deuteronomy imposes certain restrictions on the king, regarding such matters as the numbers of wives he might take and of horses he might acquire (for his own use). According to Professor Bernard M. Levinson, "This legislation was so utopian in its own time that it seems never to have been implemented." [17] The Deuteronomic social vision may have influenced opponents of the divine right of kings, including Bishop John Ponet in sixteenth-century England. [18]

Middle Ages Edit

In Islamic jurisprudence rule of law was formulated in the seventh century, so that no official could claim to be above the law, not even the caliph. [19]

Alfred the Great, Anglo-Saxon king in the 9th century, reformed the law of his kingdom and assembled a law code (the Doom Book) which he grounded on biblical commandments. He held that the same law had to be applied to all persons, whether rich or poor, friends or enemies. This was likely inspired by Leviticus 19:15: "You shall do no iniquity in judgment. You shall not favor the wretched and you shall not defer to the rich. In righteousness you are to judge your fellow." [20]

In 1215, Archbishop Stephen Langton gathered the Barons in England and forced King John and future sovereigns and magistrates back under the rule of law, preserving ancient liberties by Magna Carta in return for exacting taxes. [21] [22] This foundation for a constitution was carried into the United States Constitution.

In 1481, during the reign of Ferdinand II of Aragon, the Constitució de l'Observança was approved by the General Court of Catalonia, establishing the submission of royal power (included its officers) to the laws of the Principality of Catalonia. [23]

Early Modern period Edit

The first known use of this English phrase occurred around AD 1500. [24] Another early example of the phrase "rule of law" is found in a petition to James I of England in 1610, from the House of Commons:

Amongst many other points of happiness and freedom which your majesty's subjects of this kingdom have enjoyed under your royal progenitors, kings and queens of this realm, there is none which they have accounted more dear and precious than this, to be guided and governed by the certain rule of the law which giveth both to the head and members that which of right belongeth to them, and not by any uncertain or arbitrary form of government . [25]

In 1607, English Chief Justice Sir Edward Coke said in the Case of Prohibitions (according to his own report) "that the law was the golden met-wand and measure to try the causes of the subjects and which protected His Majesty in safety and peace: with which the King was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said to which I said, that Bracton saith, quod Rex non debet esse sub homine, sed sub Deo et lege (That the King ought not to be under any man but under God and the law.)."

Among the first modern authors to use the term and give the principle theoretical foundations was Samuel Rutherford in Lex, Rex (1644). [6] The title, Latin for "the law is king", subverts the traditional formulation rex lex ("the king is law"). [26] James Harrington wrote in Oceana (1656), drawing principally on Aristotle's Politics, that among forms of government an “Empire of Laws, and not of Men” was preferable to an “Empire of Men, and not of Laws”. [27]

John Locke also discussed this issue in his Second Treatise of Government (1690):

The natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but to have only the law of nature for his rule. The liberty of man, in society, is to be under no other legislative power, but that established, by consent, in the commonwealth nor under the dominion of any will, or restraint of any law, but what that legislative shall enact, according to the trust put in it. Freedom then is not what Sir Robert Filmer tells us, Observations, A. 55. a liberty for every one to do what he lists, to live as he pleases, and not to be tied by any laws: but freedom of men under government is, to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it a liberty to follow my own will in all things, where the rule prescribes not and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man: as freedom of nature is, to be under no other restraint but the law of nature. [28]

The principle was also discussed by Montesquieu in The Spirit of the Laws (1748). [29] The phrase "rule of law" appears in Samuel Johnson's Dictionary (1755). [30]

In 1776, the notion that no one is above the law was popular during the founding of the United States. For example, Thomas Paine wrote in his pamphlet Common Sense that "in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king and there ought to be no other." [31] In 1780, John Adams enshrined this principle in Article VI of the Declaration of Rights in the Constitution of the Commonwealth of Massachusetts:

No man, nor corporation, or association of men, have any other title to obtain advantages, or particular and exclusive privileges, distinct from those of the community, than what arises from the consideration of services rendered to the public and this title being in nature neither hereditary, nor transmissible to children, or descendants, or relations by blood, the idea of a man born a magistrate, lawgiver, or judge, is absurd and unnatural. [32]

The influence of Britain, France and the United States contributed to spreading the principle of the rule of law to other countries around the world. [33] [34]

The Oxford English Dictionary has defined rule of law this way: [2]

The authority and influence of law in society, esp. when viewed as a constraint on individual and institutional behaviour (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes.

Rule of law implies that every citizen is subject to the law. It stands in contrast to the idea that the ruler is above the law, for example by divine right.

Despite wide use by politicians, judges and academics, the rule of law has been described as "an exceedingly elusive notion". [35] Among modern legal theorists, one finds that at least two principal conceptions of the rule of law can be identified: a formalist or "thin" definition, and a substantive or "thick" definition one occasionally encounters a third "functional" conception. [36] Formalist definitions of the rule of law do not make a judgment about the "justness" of law itself, but define specific procedural attributes that a legal framework must have in order to be in compliance with the rule of law. Substantive conceptions of the rule of law go beyond this and include certain substantive rights that are said to be based on, or derived from, the rule of law. [37]

Most legal theorists believe that the rule of law has purely formal characteristics. For instance, such theorists claim that law requires generality (general rules that apply to classes of persons and behaviors as opposed to individuals), publicity (no secret laws), prospective application (little or no retroactive laws), consistency (no contradictory laws), [38] equality (applied equally throughout all society), and certainty (certainty of application for a given situation), but formalists contend that there are no requirements with regard to the content of the law. Others, including a few legal theorists, believe that the rule of law necessarily entails protection of individual rights. Within legal theory, these two approaches to the rule of law are seen as the two basic alternatives, respectively labelled the formal and substantive approaches. Still, there are other views as well. Some believe that democracy is part of the rule of law. [39]

The "formal" interpretation is more widespread than the "substantive" interpretation. Formalists hold that the law must be prospective, well-known, and have characteristics of generality, equality, and certainty. Other than that, the formal view contains no requirements as to the content of the law. [36] This formal approach allows laws that protect democracy and individual rights, but recognizes the existence of "rule of law" in countries that do not necessarily have such laws protecting democracy or individual rights. The best known arguments for the formal interpretation have been made by A.V Dicey, F.A.Hayek, Joseph Raz, and Joseph Unger.

The substantive interpretation preferred by Dworkin, Laws, and Allan, holds that the rule of law intrinsically protects some or all individual rights.

The functional interpretation of the term "rule of law", consistent with the traditional English meaning, contrasts the "rule of law" with the "rule of man". [39] According to the functional view, a society in which government officers have a great deal of discretion has a low degree of "rule of law", whereas a society in which government officers have little discretion has a high degree of "rule of law". [39] Upholding the rule of law can sometimes require the punishment of those who commit offenses that are justifiable under natural law but not statutory law. [40] The rule of law is thus somewhat at odds with flexibility, even when flexibility may be preferable. [39]

The ancient concept of rule of law can be distinguished from rule by law, according to political science professor Li Shuguang: "The difference . is that, under the rule of law, the law is preeminent and can serve as a check against the abuse of power. Under rule by law, the law is a mere tool for a government, that suppresses in a legalistic fashion." [41]

The rule of law has been considered as one of the key dimensions that determine the quality and good governance of a country. [42] Research, like the Worldwide Governance Indicators, defines the rule of law as: "the extent to which agents have confidence and abide by the rules of society, and in particular the quality of contract enforcement, the police and the courts, as well as the likelihood of crime or violence." [42] Based on this definition the Worldwide Governance Indicators project has developed aggregate measurements for the rule of law in more than 200 countries, as seen in the map at right. [43]

Europe Edit

The preamble of the rule of law European Convention for the Protection of Human Rights and Fundamental Freedoms says "the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law".

In France and Germany the concepts of rule of law (Etat de droit and Rechtsstaat respectively) are analogous to the principles of constitutional supremacy and protection of fundamental rights from public authorities (see public law), particularly the legislature. [44] [45] France was one of the early pioneers of the ideas of the rule of law. [46] The German interpretation is more "rigid" but similar to that of France and the United Kingdom. [47] [48]

Finland's constitution explicitly requires rule of law by stipulating that "the exercise of public powers shall be based on an Act. In all public activity, the law shall be strictly observed."

United Kingdom Edit

In the United Kingdom the rule of law is a long-standing principle of the way the country is governed, dating from Magna Carta in 1215 and the Bill of Rights 1689. [26] [49] [50] In the 19th century, A. V. Dicey, a constitutional scholar and lawyer, wrote of the twin pillars of the British constitution in his classic work Introduction to the Study of the Law of the Constitution (1885) these two pillars are the rule of law and parliamentary sovereignty. [51]

Americas Edit

United States Edit

All government officers of the United States, including the President, the Justices of the Supreme Court, state judges and legislators, and all members of Congress, pledge first and foremost to uphold the Constitution. These oaths affirm that the rule of law is superior to the rule of any human leader. [52] At the same time, the federal government has considerable discretion: the legislative branch is free to decide what statutes it will write, as long as it stays within its enumerated powers and respects the constitutionally protected rights of individuals. Likewise, the judicial branch has a degree of judicial discretion, [53] and the executive branch also has various discretionary powers including prosecutorial discretion.

Scholars continue to debate whether the U.S. Constitution adopted a particular interpretation of the "rule of law", and if so, which one. For example, John Harrison asserts that the word "law" in the Constitution is simply defined as that which is legally binding, rather than being "defined by formal or substantive criteria", and therefore judges do not have discretion to decide that laws fail to satisfy such unwritten and vague criteria. [54] Law Professor Frederick Mark Gedicks disagrees, writing that Cicero, Augustine, Thomas Aquinas, and the framers of the U.S. Constitution believed that an unjust law was not really a law at all. [55]

Some modern scholars contend that the rule of law has been corroded during the past century by the instrumental view of law promoted by legal realists such as Oliver Wendell Holmes and Roscoe Pound. For example, Brian Tamanaha asserts: "The rule of law is a centuries-old ideal, but the notion that law is a means to an end became entrenched only in the course of the nineteenth and twentieth centuries." [56]

Others argue that the rule of law has survived but was transformed to allow for the exercise of discretion by administrators. For much of American history, the dominant notion of the rule of law, in this setting, has been some version of A. V. Dicey's: "no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land." That is, individuals should be able to challenge an administrative order by bringing suit in a court of general jurisdiction. As the dockets of worker compensation commissions, public utility commissions and other agencies burgeoned, it soon became apparent that letting judges decide for themselves all the facts in a dispute (such as the extent of an injury in a worker's compensation case) would overwhelm the courts and destroy the advantages of specialization that led to the creation of administrative agencies in the first place. Even Charles Evans Hughes, a Chief Justice of the United States, believed "you must have administration, and you must have administration by administrative officers." By 1941, a compromise had emerged. If administrators adopted procedures that more or less tracked "the ordinary legal manner" of the courts, further review of the facts by "the ordinary Courts of the land" was unnecessary. That is, if you had your "day in commission", the rule of law did not require a further "day in court". Thus Dicey's rule of law was recast into a purely procedural form. [57]

James Wilson said during the Philadelphia Convention in 1787 that, "Laws may be unjust, may be unwise, may be dangerous, may be destructive and yet not be so unconstitutional as to justify the Judges in refusing to give them effect." George Mason agreed that judges "could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as judges to give it a free course." [58] Chief Justice John Marshall (joined by Justice Joseph Story) took a similar position in 1827: "When its existence as law is denied, that existence cannot be proved by showing what are the qualities of a law." [59]

Asia Edit

East Asian cultures are influenced by two schools of thought, Confucianism, which advocated good governance as rule by leaders who are benevolent and virtuous, and Legalism, which advocated strict adherence to law. The influence of one school of thought over the other has varied throughout the centuries. One study indicates that throughout East Asia, only South Korea, Singapore, Japan, Taiwan and Hong Kong have societies that are robustly committed to a law-bound state. [60] According to Awzar Thi, a member of the Asian Human Rights Commission, the rule of law in Cambodia, and most of Asia is weak or nonexistent:

Apart from a number of states and territories, across the continent there is a huge gulf between the rule of law rhetoric and reality. In Thailand, the police force is favor over the rich and corrupted. In Cambodia, judges are proxies for the ruling political party . That a judge may harbor political prejudice or apply the law unevenly are the smallest worries for an ordinary criminal defendant in Asia. More likely ones are: Will the police fabricate the evidence? Will the prosecutor bother to show up? Will the judge fall asleep? Will I be poisoned in prison? Will my case be completed within a decade? [61]

In countries such as China and Vietnam, the transition to a market economy has been a major factor in a move toward the rule of law, because the rule of law is important to foreign investors and to economic development. It remains unclear whether the rule of law in countries like China and Vietnam will be limited to commercial matters or will spill into other areas as well, and if so whether that spillover will enhance prospects for related values such as democracy and human rights. [62] The rule of law in China has been widely discussed and debated by both legal scholars and politicians in China.

In Thailand, a kingdom that has had a constitution since the initial attempt to overthrow the absolute monarchy system in 1932, the rule of law has been more of a principle than actual practice. [ citation needed ] Ancient prejudices and political bias have been present in the three branches of government with each of their foundings, and justice has been processed formally according to the law but in fact more closely aligned with royalist principles that are still advocated in the 21st century. [ citation needed ] In November 2013, Thailand faced still further threats to the rule of law when the executive branch rejected a supreme court decision over how to select senators. [ citation needed ]

In India, the longest constitutional text in the history of the world has governed that country since 1950. Although the Constitution of India may have been intended to provide details that would limit the opportunity for judicial discretion, the more text there is in a constitution the greater opportunity the judiciary may have to exercise judicial review. [63] According to Indian journalist Harish Khare, "The rule of law or rather the Constitution [is] in danger of being supplanted by the rule of judges." [64]

Japan had centuries of tradition prior to World War II, during which there were laws, but they did not provide a central organizing principle for society, and they did not constrain the powers of government (Boadi, 2001). As the 21st century began, the percentage of people who were lawyers and judges in Japan remained very low relative to western Europe and the United States, and legislation in Japan tended to be terse and general, leaving much discretion in the hands of bureaucrats. [65] [66]

Various organizations are involved in promoting the rule of law.

The Council of Europe Edit

The Statute of the Council of Europe characterizes the rule of law as one of the core principles which the establishment of the organization based on. The paragraph 3 of the preamble of the Statute of the Council of Europe states: "Reaffirming their devotion to the spiritual and moral values which are the common heritage of their peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy." The Statute lays the compliance with the rule of law principles as a condition for the European states to be a full member of the organization. [67]

International Commission of Jurists Edit

In 1959, an event took place in New Delhi and speaking as the International Commission of Jurists, made a declaration as to the fundamental principle of the rule of law. The event consisted of over 185 judges, lawyers, and law professors from 53 countries. This later became known as the Declaration of Delhi. During the declaration they declared what the rule of law implied. They included certain rights and freedoms, an independent judiciary and social, economic and cultural conditions conducive to human dignity. The one aspect not included in The Declaration of Delhi, was for rule of law requiring legislative power to be subject to judicial review. [68]

United Nations Edit

a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.

The General Assembly has considered rule of law as an agenda item since 1992, with renewed interest since 2006 and has adopted resolutions at its last three sessions. [70] The Security Council has held a number of thematic debates on the rule of law, [71] and adopted resolutions emphasizing the importance of these issues in the context of women, peace and security, [72] children in armed conflict, [73] and the protection of civilians in armed conflict. [74] The Peacebuilding Commission has also regularly addressed rule of law issues with respect to countries on its agenda. [75] The Vienna Declaration and Programme of Action also requires the rule of law be included in human rights education. [76] Additionally, the Sustainable Development Goal 16, a component of the 2030 Agenda is aimed at promoting the rule of law at national and international levels. [77]

International Bar Association Edit

The Council of the International Bar Association passed a resolution in 2009 endorsing a substantive or "thick" definition of the rule of law: [78]

An independent, impartial judiciary the presumption of innocence the right to a fair and public trial without undue delay a rational and proportionate approach to punishment a strong and independent legal profession strict protection of confidential communications between lawyer and client equality of all before the law these are all fundamental principles of the Rule of Law. Accordingly, arbitrary arrests secret trials indefinite detention without trial cruel or degrading treatment or punishment intimidation or corruption in the electoral process, are all unacceptable. The Rule of Law is the foundation of a civilised society. It establishes a transparent process accessible and equal to all. It ensures adherence to principles that both liberate and protect. The IBA calls upon all countries to respect these fundamental principles. It also calls upon its members to speak out in support of the Rule of Law within their respective communities.

World Justice Project Edit

As used by the World Justice Project, a non-profit organization committed to advancing the rule of law around the world, the rule of law refers to a rules-based system in which the following four universal principles are upheld: [79]

  1. The government and its officials and agents are accountable under the law
  2. The laws are clear, publicized, stable, fair, and protect fundamental rights, including the security of persons and property
  3. The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient
  4. Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.

The World Justice Project has developed an Index to measure the extent to which countries adhere to the rule of law in practice. The WJP Rule of Law Index is composed of 9 factors and 52 sub-factors, and covers a variety of dimensions of the rule of law – such as whether government officials are accountable under the law, and whether legal institutions protect fundamental rights and allow ordinary people access to justice. [80]

International Development Law Organization Edit

The International Development Law Organization (IDLO) is an intergovernmental organization with a joint focus on the promotion of rule of law and development. It works to empower people and communities to claim their rights, and provides governments with the know-how to realize them. [81] It supports emerging economies and middle-income countries to strengthen their legal capacity and rule of law framework for sustainable development and economic opportunity. [82] It is the only intergovernmental organization with an exclusive mandate to promote the rule of law and has experience working in more than 170 countries around the world. [83]

The International Development Law Organization has a holistic definition of the rule of law:

More than a matter of due process, the rule of law is an enabler of justice and development. The three notions are interdependent when realized, they are mutually reinforcing. For IDLO, as much as a question of laws and procedure, the rule of law is a culture and daily practice. It is inseparable from equality, from access to justice and education, from access to health and the protection of the most vulnerable. It is crucial for the viability of communities and nations, and for the environment that sustains them. [84]

IDLO is headquartered in Rome and has a branch office in The Hague and has Permanent Observer Status at the United Nations General Assembly in New York City.

International Network to Promote the Rule of Law Edit

The International Network to Promote the Rule of Law (INPROL) is a network of over 3,000 law practitioners from 120 countries and 300 organizations working on rule of law issues in post-conflict and developing countries from a policy, practice and research perspective. INPROL is based at the US Institute of Peace (USIP) in partnership with the US Department of State Bureau of International Narcotics and Law Enforcement, the Organization for Security and Cooperation in Europe (OSCE) Strategic Police Matters Unit, the Center of Excellence for Police Stability Unit, and William and Marry School of Law in the United States. [85] Its affiliate organizations include the United Nations Office on Drugs and Crime, Folke Bernadotte Academy, International Bar Association, International Association of Chiefs of Police, International Association of Women Police, International Corrections and Prisons Association, International Association for Court Administration, International Security Sector Advisory Team at the Geneva Centre for the Democratic Control of Armed Forces, Worldwide Association of Women Forensic Experts (WAWFE), and International Institute for Law and Human Rights.

INPROL provides an online forum for the exchange of information about best practices. Members may post questions, and expect a response from their fellow rule of law practitioners worldwide on their experiences in addressing rule of law issues.

One important aspect of the rule-of-law initiatives is the study and analysis of the rule of law's impact on economic development. The rule-of-law movement cannot be fully successful in transitional and developing countries without an answer to the question: does the rule of law matter to economic development or not? [86] Constitutional economics is the study of the compatibility of economic and financial decisions within existing constitutional law frameworks, and such a framework includes government spending on the judiciary, which, in many transitional and developing countries, is completely controlled by the executive. It is useful to distinguish between the two methods of corruption of the judiciary: corruption by the executive branch, in contrast to corruption by private actors.

The standards of constitutional economics can be used during annual budget process, and if that budget planning is transparent then the rule of law may benefit. The availability of an effective court system, to be used by the civil society in situations of unfair government spending and executive impoundment of previously authorized appropriations, is a key element for the success of the rule-of-law endeavor. [87]

The Rule of Law is especially important as an influence on the economic development in developing and transitional countries. To date, the term "rule of law" has been used primarily in the English-speaking countries, and it is not yet fully clarified even with regard to such well-established democracies as, for instance, Sweden, Denmark, France, Germany, or Japan. A common language between lawyers of common law and civil law countries as well as between legal communities of developed and developing countries is critically important for research of links between the rule of law and real economy. [88]

The "rule of law" primarily connotes "protection of property rights". [89] The economist F. A. Hayek analyzed how the rule of law might be beneficial to the free market. Hayek proposed that under the rule of law, individuals would be able to make wise investments and future plans with some confidence in a successful return on investment when he stated: "under the Rule of Law the government is prevented from stultifying individual efforts by ad hoc action. Within the known rules of the game the individual is free to pursue his personal ends and desires, certain that the powers of government will not be used deliberately to frustrate his efforts." [90]

Studies have shown that weak rule of law (for example, discretionary regulatory enforcement) discourages investment. Economists have found, for example, that a rise in discretionary regulatory enforcement caused US firms to abandon international investments. [91]

The Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments or Roerich Pact is an inter-American treaty. The most important idea of the Roerich Pact is the legal recognition that the defense of cultural objects is more important than the use or destruction of that culture for military purposes, and the protection of culture always has precedence over any military necessity. [92] The Roerich Pact signed on April 15, 1935, by the representatives of 21 American states in the Oval Office of the White House (Washington, DC). It was the first international treaty signed in the Oval Office. [93] The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict is the first international treaty that focuses on the protection of cultural property in armed conflict. It was signed at The Hague, Netherlands on 14 May 1954 and entered into force on 7 August 1956. As of June 2017, it has been ratified by 128 states. [94]

The rule of law can be hampered when there is a disconnect between legal and popular consensus. An example is intellectual property. Under the auspices of the World Intellectual Property Organization, nominally strong copyright laws have been implemented throughout most of the world but because the attitude of much of the population does not conform to these laws, a rebellion against ownership rights has manifested in rampant piracy, including an increase in peer-to-peer file sharing. [95] Similarly, in Russia, tax evasion is common and a person who admits he does not pay taxes is not judged or criticized by his colleagues and friends, because the tax system is viewed as unreasonable. [96] Bribery likewise has different normative implications across cultures. [89]

Education has an important role in promoting the rule of law (RoL) and a culture of lawfulness. In essence, it provides an important protective function by strengthening learners’ abilities to face and overcome difficult life situations. Young people can be important contributors to a culture of lawfulness, and governments can provide educational support that nurtures positive values and attitudes in future generations. [97]

Through education, learners are expected to acquire and develop the cognitive, socio-emotional and behavioural experiences and skills they need to develop into constructive and responsible contributors to society. Education also plays a key role in transmitting and sustaining socio-cultural norms and ensuring their continued evolution. [98] Through formal education, children and youth are socialized to adopt certain values, behaviours, attitudes and roles that form their personal and social identity and guide them in their daily choices. [97]

As they develop, children and youth also develop the capacity to reflect critically on norms, and to shape new norms that reflect contemporary conditions. As such, education for justice promotes and upholds the principle of the RoL by: [97]

  • Encouraging learners to value, and apply, the principles of the RoL in their daily lives, and
  • Equipping learners with the appropriate knowledge, values, attitudes, and behaviours they need to contribute to its continued improvement and regeneration in society more broadly. This can be reflected, for instance, in the way learners demand greater transparency in, or accountability of, public institutions, as well as through the everyday decisions that learners take as ethically responsible and engaged citizens, family members, workers, employers, friends, and consumers etc. [97]

Global Citizenship Education (GCE) is built on a lifelong learning perspective. It is not only for children and youth but also for adults. It can be delivered in formal, non-formal and informal settings. For this reason, GCE is part and parcel of the Sustainable Development Goal 4 on Education (SDG4, Target 4.7). A competency framework based on a vision of learning covers three domains to create a well-rounded learning experience: Cognitive, Socio-Emotional and Behavioural. [97]

Educational policies and programmes can support the personal and societal transformations that are needed to promote and uphold the RoL by:


Separation of Powers: Marbury v. Madison, Schechter Poultry Corp.

Since America’s first wobbly, unsure steps forward as a nation, the concept of separation of powers has played a pivotal role in defining the politics and structure of the U.S. Government. The rationale behind the separation of powers is simple. With only one or two branches of government, it would be relatively easy for one branch, or even one man, to seize power. A system of checks and balances as well as a 3-branch government ensures that no one political entity can establish totalitarian-esque control.

Marbury v. Madison

There have been several incidents involving the separation of powers that have reached the Supreme Court. The Marbury v. Madison court case and the Schechter Poultry Corporation v. United State Supreme Court cases are probably two of the most influential events in the history of the federal courts.

John Adams, a Federalist, made several so – called midnight appointments in order to bring as many high level government positions as possible under the control of the Federalists. This included the Federal Justice of the Peace office, which was given to William Marbury. However, Anti-federalist Thomas Jefferson assumed the Presidency before the appointment was officially in effect and a legal battle ensued over whether Marbury legally held the position.

Schechter Poultry Corp. v. United States

Schechter Poultry Corp. v. United States dealt with the limits of the president’s power. Part of Roosevelt’s New Deal economic plan was the National Industrial Recovery Act of 1933 (NIRA). This legislation allowed the president to set “codes of fair competition” that regulated parts of interstate trade and commerce.

The Schechter Poultry Corporation was accused of violating the “live poultry code” of fair competition and of failing to respect minimum wage and hour stipulations as well as a myriad of other esoteric chicken-related laws. However, the constitutionality of the NIRA and the codes of fair competition were very much in question.

Results of Marbury v. Madison

The decision of the Supreme Court in Marbury v. Madison has had an unequivocal impact on American political policies and proceedings. The Supreme Court ruled unanimously that the law Marbury cited (The Judiciary Act of 1789) while requesting a writ of mandamus was in direct conflict with the constitution. Furthermore, they said, the constitution transcends any federal or state law contracting it.

Thus, in an act that seems to be a mockery of checks and balances, the Supreme Court gave itself the power of judicial review the ability to interpret the nation’s laws. However, judicial review has proven to be essential to maintaining the balance of power in government and is now considered a legitimate part of the unwritten constitution.

Results of Schechter Poultry Corporation v. United States

It is impossible to know just how much the resolution of Schechter Poultry Corporation v. United States has affected our modern political system. Perhaps if this case had not surfaced we would be living in an authoritarian state right now.

Consider this: the Supreme Court, in unison once again, found the NIRA and the codes of fair competition to be unconstitutional. The declaration of the NIRA as an unconstitutional redistribution of power was important not because it let the SPC off the hook, but because it sent a clear message to FDR and all future presidents that they could not use desperate situations as an excuse to bolster their own power.

Separation of Powers

Although separation of powers is seen as a relatively modern American idea, it actually dates back to the early 1700s and the French Baron de Montesquieu. It is this philosopher and political thinker who developed the 3 branch government system and even gave them their names and basic purposes, Executive, Legislative, and Judicial. Yet, it you ask a typical high school student about Montesquieu, he won’t have a clue how to pronounce his name, much less understand the profound influence he had on the framers of our constitution. So next time you’re casting a vote or watching a no bias, no bull political debate, say a silent thanks to the little-known Baron de Montesquieu who is still waiting for a mention in American textbooks.


The system of separation of powers divides the tasks of the state into three branches: legislative, executive and judicial. These tasks are assigned to different institutions in such a way that each of them can check the others. As a result, no one institution can become so powerful in a democracy as to destroy this system.

The Three Powers: Legislature, Executive, Judiciary

Checks and balances (rights of mutual control and influence) make sure that the three powers interact in an equitable and balanced way. The separation of powers is an essential element of the Rule of Law, and is enshrined in the Constitution.

Clear Distinctions

The separation of powers is also reflected in the fact that certain functions must not be exercised by one and the same person. Thus, the Federal President cannot at the same time be a Member of the National Council, or a judge who is appointed Minister or elected to be a Member of the National Council must be temporarily suspended from his/her judicial duties.

The Legislative Power

The first of the three powers has the task of passing laws and supervising their implementation. It is exercised by Parliament &ndash i.e. the National and Federal Councils &ndash and the Provincial Diets.

The implementation of laws is the task of the executive and judicial branches

The Executive Power

The executive branch has the task of implementing laws. It comprises the Federal Government, the Federal President and all federal authorities including the police and the armed forces.

The Judicial Power (Judiciary)

Judges administer justice, viz. they decide disputes independently and impartially. It is their task to ensure that laws are complied with. Judges cannot be deposed and cannot be assigned other positions against their will.

And the Parties?

As in other democratic countries the separation of powers is also in Austria affected by the realities of the Party State. The Members of government are, as a rule, members of those parties which have a majority in Parliament.

New Face of Separation of Powers: The Opposition exercising Control

As a result, one important democratic task is more and more often taken over by the opposition parties: controlling the Government. The classical separation of powers is given a new dimension &ndash the confrontation of the governing majority and the opposition. While this aspect is not enshrined in the written Constitution, it is a fact of political reality.

The Legislature checks the Executive

Parliament exercises control over the executive, it checks the work of the Federal Government and the administrative institutions. The Government has to justify itself to Parliament in respect of everything it does or causes the administration to do.

The Legislature is also Subject to Control

On the other hand, the Executive &ndash in the person of the Federal President acting on a proposal made by the Federal Government &ndash has the right to dissolve the National Council. Laws passed by the National Council can be checked by the Constitutional Court and declared null and void if they are found to be unconstitutional.

The Legislature and the Judiciary

The only influence legislature has on the judiciary is that it passes the laws that the courts have to comply with.

The Executive

The two components of the Executive &ndash the Administration and the Judiciary &ndash are organised upon strictly separate lines, with one exception: the Administration is checked by the courts of public law (the Administrative Court, the Constitutional Court and the Asylum Court).

The Constitution contains strict rules on how tasks are assigned to the Administration or the Judiciary. To give one example: Fines exceeding a certain amount can only be imposed by courts.


Constitutional Issues - The Separation of Powers

(Originally published in Social Education, the Journal of the National Council for the Social Studies).

Transcription:

A STATEMENT BY
FRANK E. GANNETT, PUBLISHER GANNETT NEWSPAPERS

President Roosevelt has cleverly camouflaged a most amazing and startling proposal for packing the Supreme Court. It is true that the lower courts are slow and overburdened, we probably do need more judges to expedite litigation but this condition should not be used as a subtle excuse for changing the complexion and undermining the independence of our highest court. Increasing the number of judges from nine to fifteen would not make this high tribunal act any more promptly than it does now, but it would give the President control of the Judiciary Department.

A year ago I predicted that this is exactly what would happen if Roosevelt was reelected. The Supreme Court having declared invalid many of the administration measures the President now resorts to a plan of creating a Supreme Court that will be entirely sympathetic with his ideas. Provision has been made for amending the Constitution. If is necessary to change the Constitution it should be done in the regular way. The President is mistaken, if he thinks he can conceal his real purpose of packing, influencing and controlling the Supreme Court by confusing that objective with a long dissertation on the slow action of our various courts.

The Supreme Court has been the anchor that has held America safe through many storms. Its absolute independence and integrity must never be
in doubt.

Our Government is composed of three departments, Legislative, Executive and Judiciary. These are the foundations of our Democracy. As a result of the election and the transfer of powers by so-called emergency measures, the Executive now dominates the Legislative Department. The President now proposes also to dominate the Judiciary. Do we want to give to this man or any one man complete control of these three departments of our Government which have from the beginning of the Republic been kept entirely separate and independent?

This proposal should give every American grave concern for it is a step towards absolutism and complete dictatorial power.


How does Florida's Constitution outline separation of powers? A) It requires all branches of government to create and vote on state laws. B) It requires all positions in each branch be obtained only through fair elections. Eliminate C) It requires all laws passed by state government also be approved by federal government. D) It requires state government be divided into judicial, executive, and legislative branches.

it was certainly a debatable decision, mainly because it was based primarily on political - and not on legal or social - views. since the congress at that time was led by members of the republican party, and the territory that the tribes wanted to turn into an exclusively indian state was predominantly democratic, the proposal (as expressed in the constitution) did not succeed, but the constitution itself proved to be of crucial importance in the creation of the state of oklahoma, and, most importantly, it guaranteed the involvement of representatives of the indian tribes in the government of the future joint state.

as a member of congress, i would have voted to ratify the constitution, or at least to have it tabled. ignoring it was an interested and partial decision.


SEPARATION OF POWERS IN HISTORY

When the Constitution was framed, the doctrine of separation of powers was accepted without question. Yet it was not written into the Constitution.

Rather, it was incorporated through the opening statements of the first three articles.

In these articles the Framers created the three branches of Government - legislative, executive and judicial - and vested them with specific responsibilities. At the same time, they provided for a system of checks and balances.

Most power struggles between the branches are resolved through political negotiation or compromise, but the Supreme Court is the ultimate referee of clashes between the branches. Historically, the Court has reviewed three types of disputes over the separation of powers: those involving the executive power to appoint and remove Government officials, cases testing the relative roles of Congress and the President in the legislative process, and disputes over the scope of judicial power to examine the actions of the executive or legislative branch.

Until the 1970's there had been little litigation in this area. However, in the last dozen years there have been several major decisions handed down by the Court, including a ruling against President Nixon in which the Justices held that the executive has only a limited privilege to shield information from the courts.


Watch the video: Constitutional Principle #3: Separation of Powers (November 2021).