Proceso Histórico de Huaquillas.

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What do you understand the world legal system of a country and briefly discuss the Nigerian legal system.

7.0 REFERENCES/ FURTHER READINGS

Stuchka, P.I. (1988). Selected Writings on Soviet Law and Marxism. Robert Sharlet, Peter B. Maggs, and Piers Beirne (eds.). Armonk, N.Y.: M.E. Sharpe.

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balances because the branches can check up on each other and if any of the branches get too strong, that branch will be balanced by the others.

In the United States the three branches of government are completely separate except for the Vice President who is President of the Senate. In the United Kingdom the three branches of Government are mixed but the checks and balances are provided by history and custom the rule that says something should happen because that is how it has been done for a long time. The Queen is Head of State the executive, but is also part of Parliament the legislative branch and is the Fountain of Justice the head of the judicial branch. But by convention she does not do anything without the advice of Ministers and never refuses to pass an Act of Parliament. The Queen has a lot of power but the power is controlled and balanced by the need to act in certain ways or only use the power at certain times.

In some countries the leaders of the executive branch are members of the legislature. This system is called responsible government. The first to talk about separation of powers in the modern age was Charles-Louis Montesquieu.

2.0 OBJECTIVE

At the end of the unit you should be able to

 what is the doctrine pof separation of powers

 the organs of government that operates separation of powers

 the important of check and balances 3.0 MAIN CONTENT

The separation of powers, often imprecisely and metonymically used interchangeably with the trias politica principle, is a model for the governance of a state or who controls the state. Under this model, the state is divided into branches, each with separate and independent powers and areas of responsibility so that the powers of one branch are not in conflict with the powers associated with the other branches. The typical division is into three branches: a legislature, an executive, and a judiciary, which is the trias politica model. It can be contrasted with the fusion of powers in some parliamentary systems where the executive and legislature and sometimes parts of the judiciary are unified. Separation of powers, therefore, refers to the division of responsibilities into distinct branches to limit any one branch from exercising the core functions of another. The intent is to prevent the concentration of power and provide for checks and balances.

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Separation of powers is a political doctrine originating in the writings of Charles de Secondat, Baron de Montesquieu in The Spirit of the Laws, in which he argued for a constitutional government with three separate branches, each of which would have defined abilities to check the powers of the others. This philosophy heavily influenced the writing of the United States Constitution, according to which the Legislative, Executive, and Judicial branches of the United States government are kept distinct in order to prevent abuse of power. This United States form of separation of powers is associated with a system of checks and balances.

During the Age of Enlightenment, philosophers such as Montesquieu advocated the principle in their writings, whereas others, such as Thomas Hobbes, strongly opposed it. Montesquieu was one of the foremost supporters of separating the legislature, the executive, and the judiciary. His writings considerably influenced the opinions of the framers of the United States Constitution.

Strict separation of powers did not operate in the United Kingdom, the political structure of which served in most instances as a model for the government created by the U.S. Constitution.Under the UK Westminster system, based on parliamentary sovereignty and responsible government, Parliament consisting of the Sovereign King-in-Parliament, House of Lords and House of Commons was the supreme lawmaking authority. The executive branch acted in the name of the King His Majesty's Government, as did the judiciary. The King's Ministers were in most cases members of one of the two Houses of Parliament, and the Government needed to sustain the support of a majority in the House of Commons. One minister, the Lord Chancellor, was at the same time the sole judge in the Court of Chancery and the presiding officer in the House of Lords. Therefore, it may be seen that the three branches of British government often violated the strict principle of separation of powers, even though there were many occasions when the different branches of the government disagreed with each other.

Some U.S. states did not observe a strict separation of powers in the 18th century.

In New Jersey, the Governor also functioned as a member of the state's highest court and as the presiding officer of one house of the New Jersey Legislature. The President of Delaware was a member of the Court of Appeals; the presiding officers of the two houses of the state legislature also served in the executive department as Vice Presidents. In both Delaware and Pennsylvania, members of the executive council served at the same time as judges. On the other hand, many southern states explicitly required separation of powers. Maryland, Virginia, North Carolina and Georgia all kept the branches of government separate and distinct.

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Legislative power

Congress has the sole power to legislate for the United States. Under the nondelegation doctrine, Congress may not delegate its lawmaking responsibilities to any other agency. In this vein, the Supreme Court held in the 1998 case Clinton v. City of New York that Congress could not delegate a line-item veto to the President, by powers vested in the government by the Constitution.

Where Congress does not make great and sweeping delegations of its authority, the Supreme Court has been less stringent. One of the earliest cases involving the exact limits of non-delegation was Wayman v. Southard 23 U.S. (10 Wet.) 1, 42 1825. Congress had delegated to the courts the power to prescribe judicial procedure; it was contended that Congress had thereby unconstitutionally clothed the judiciary with legislative powers. While Chief JusticeJohn Marshall conceded that the determination of rules of procedure was a legislative function, he distinguished between important subjects and mere details. Marshall wrote that a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details.

Marshall's words and future court decisions gave Congress much latitude in delegating powers. It was not until the 1930s that the Supreme Court held a delegation of authority unconstitutional. In a case involving the creation of the National Recovery Administration called A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 1935, Congress could not authorize the president to formulate codes of fair competition. It was held that Congress must set some standards governing the actions of executive officers. The Court, however, has deemed that phrases such as just and reasonable, public interest and public convenience suffice.

Executive power

Executive power is vested, with exceptions and qualifications,in the President. By law the president becomes the Commander in Chief of the Army and Navy, Militia of several states when called into service, has power to make treaties and appointments to office with the Advice and Consent of the Senate, receive Ambassadors and Public Ministers, and take care that the laws be faithfully executed Section 3. By using these words, the Constitution does not require the president to personally enforce the law; rather, officers subordinate to the president may perform such duties. The Constitution empowers the president to ensure the faithful execution of the laws made by Congress and approved by the President.

Congress may itself terminate such appointments, by impeachment, and restrict the

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president. Bodies such as the War Claims Commission, the Interstate Commerce Commission and the Federal Trade Commissionall quasi-judicial often have direct Congressional oversight.

Congress often writes legislation to restrain executive officials to the performance of their duties, as laid out by the laws Congress passes. In INS v. Chadha 1983, the Supreme Court decided (a) The prescription for legislative action requiring all legislative powers to be vested in a Congress consisting of a Senate and a House of Representatives and requiring every bill passed by the House and Senate, before becoming law, to be presented to the president, and, if he disapproves, to be repassed by two-thirds of the Senate and House represents the Framers' decision that the legislative power of the Federal Government be exercised in accord with a single, finely wrought and exhaustively considered procedure. This procedure is an integral part of the constitutional design for the separation of powers. Further rulings clarified the case; even both Houses acting together cannot override Executive vetos without a  ²⁄₃ majority. Legislation may always prescribe regulations governing executive officers.

Judicial power

Judicial powerthe power to decide cases and controversies is vested in the Supreme Court and inferior courts established by Congress. The judges must be appointed by the president with the advice and consent of the Senate, hold office during good behavior and receive compensations that may not be diminished during their continuance in office. If a court's judges do not have such attributes, the court may not exercise the judicial power of the United States. Courts exercising the judicial power are called constitutional courts.

Congress may establish legislative courts, which do not take the form of judicial agencies or commissions, whose members do not have the same security of tenure or compensation as the constitutional court judges. Legislative courts may not exercise the judicial power of the United States. In Murray's Lessee v. Hoboken Land & Improvement Co. 1856, the Supreme Court held that a legislative court may not decide a suit at the common law, or in equity, or admiralty, as such a suit is inherently judicial. Legislative courts may only adjudicate public rights questions cases between the government and an individual and political determinations.

To prevent one branch from becoming supreme, protect the opulent minority from the majority, and to induce the branches to cooperate, government systems that

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employ a separation of powers need a way to balance each of the branches.

Typically this was accomplished through a system of checks and balances, the origin of which, like separation of powers itself, is specifically credited to Montesquieu. Checks and balances allow for a system-based regulation that allows one branch to limit another, such as the power of the United States Congress to alter the composition and jurisdiction of the federal courts. Both bipartite and tripartite governmental systems apply the principles of the separation of powers to allow for the branches represented by the separate powers to hold each other reciprocally responsible to the assertion of powers as apportioned by law. The following example of the separation of powers and their mutual checks and balances for the experience of the United States Constitution is presented as illustrative of the general principles applied in similar forms of government as well;

4.0 SUMMARY

The constitutional allocation of the legislative, executive, and judicial powers among the three branches of government The doctrine under which the

legislative, executive, and judicial branches of government are not to infringe upon each other's constitutionally vested powers Political doctrine of constitutional law under which the three branches of government executive, legislative, and judicial are kept separate to prevent abuse of power. Also known as the system of checks and balances, each branch is given certain powers so as to check and balance the other branches.

5.0 CONCLUSION

In the United States the three branches of government are completely separate except for the Vice President who is President of the Senate. In the United Kingdom the three branches of Government are mixed but the checks and balances are provided by history and custom the rule that says something should happen because that is how it has been done for a long time. The Queen is Head of State the executive, but is also part of Parliament (the legislative branch and is the Fountain of Justice the head of the judicial branch. But by convention she does not do anything without the advice of Ministers and never refuses to pass an Act of Parliament. The Queen has a lot of power but the power is controlled and balanced by the need to act in certain ways or only use the power at certain times. In some countries the leaders of the executive branch are members of the legislature. This system is called responsible government.

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6.0 TUTOR-MARKED ASSIGNMENT:

Discuss the doctrine of separation of powers by montesquie

REFERENCE/FURTHER READINGS

This latter refers specifically to the separation of powers into three branches of government: legislative, executive and judicial.

Quoted in Jan Weerda, Calvin, in Evangelisches Soziallexikon, Third Edition (1960), Stuttgart (Germany), col. 210

Ward, Lee (2014). Modern Democracy and the Theological-Political Problem in Spinoza, Rousseau, and Jefferson. Recovering Political Philosophy. Palgrave Macmillan. pp. 25–26. ISBN 9781137475053. Retrieved 2015-11-03. Calvin's republican sympathies derived from his view of human nature as deeply flawed.

Compound or mixed governments reflect the reality that human frailty justifies and necessitates institutional checks and balances to the magistrate's presumed propensity to abuse power. It was this commitment to checks and balances that became the basis of Calvin's resistance theory, according to which inferior

magistrates have a duty to resist or restrain a tyrannical sovereign.

Clifton E. Olmstead (1960), History of Religion in the United States, Prentice-Hall, Englewood Cliffs, N.J., pp. 9–10

Clifton E. Olmstead, History of Religion in the United States, pp. 69–76, 99–105, 114–16

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Units 5: The Rule of law under the constitution