Friday, December 10, 2010

Essay on Separation of Powers

Essay on Separation of Powers

The word "constitution" dates back at least as far as the Roman orator Cicero who used it in the limited sense of a regulation or ordinance. With the emperor Justinian in a later century it embraced the full body of imperial law, limiting the freedom of action of the subject though not of the sovereign.

A major change occurred in England in 1688 when King James II fled from London and was deemed to have abdicated. The political leaders of the time invited William of Orange to become king on condition that he accepted the provisions of a newly drawn up Declaration of Rights. The following year a "Convention Parliament" was elected to incorporate this Declaration into English law. Now called the Bill of Rights it stated that certain of the monarch's competences as head of the executive would now require the consent of Parliament.

This arrangement became known as the constitutional settlement and the word "constitution" began to take on its modern meaning. According to Lord Chesterfield writing in the mid-18th century, "England is the only monarchy in the world that properly can be said to have a constitution," and it intrigued visitors from other European countries such as Voltaire, Montesquieu and Rousseau.

Throughout the 18th century, and as a result of the Bill of Rights, there was a clear shift of executive power towards ministers able to command a parliamentary majority. Yet inherited ideas had not been totally abandoned. William Blackstone, writing at the same time as Chesterfield, expressed the view in his Commentaries on the laws of England "That the king can do no wrong is a necessary and fundamental principle of the English Constitution". Here the word "constitution" is used more loosely, meaning the totality of the country's laws and (often unwritten) conventions.

This led De Tocqueville to comment in the following century that England was the only country without a constitution: namely, no single written document or law defining its institutions and their role in the body politic. Nevertheless, constitutional debate has continued throughout the three centuries since the Bill of Rights, resulting in many more adjustments to our system of governance, including greater democratic accountability through extension of the franchise and of the powers of the House of Commons. These were mostly small steps prompted by changing circumstances rather than stages in a pre-determined design.

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