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Download Constitutionalism and the Separation of Powers by M J C Vile PDF

By M J C Vile

Vile lines the heritage of the doctrine from its upward push through the English Civil struggle, via its improvement within the eighteenth century - via next political proposal and constitution-making in Britain, France, and the U.S..

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The important point is that this power to "interfere" was only a limited one, so that the basic idea of a division of functions remained, modified by the view that each of the branches could exercise some authority in the field of all three functions. This is the amalgam of the doctrine of the separation of powers with the theory of checks and balances which formed the basis of the United States Constitution. Related to this, and to its predecessor in time, is an amalgam of the doctrine of the separation of powers with the theory of mixed government to produce a partial separation of func- tions.

It is true that in the Constitution of Athens, attributed to him, the impropriety was stressed of the execution by the council of a citizen vt. 8, translation by J A K Thomson, London, 1955,p 181 8, ed by Sir Ernest Barker, New York, 1958, p 73, and Plato's Laws, Book VII. 3 IbId, IV, 14, p. 189. ' but this was a matter of attributing certain tasks to the proper agency, a matter of due process, rather than the assertion of a doctrine of the separation of persons. In fact the guiding principle of the Athenian Constitution, the direct participation of all citizens in all functions of government," was directly opposed to any such doctrine.

We shall consider the objections made against Montesquieu, for example, on the grounds that he did not believe in the separation of powers because he gave to the branches of government certain powers over each other which amounted to a participation in the exercise of the functions of another branch. But Montesquieu did not give each branch an equal part to play in the exercise of each function of government - far from it; he set up a basic division of functions and then imposed certain control mechanisms upon this fundamental division.

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