New PDF release: Constitutionalism and the Separation of Powers

By M J C Vile

ISBN-10: 0865971749

ISBN-13: 9780865971745

Vile lines the heritage of the doctrine from its upward push throughout the English Civil conflict, via its improvement within the eighteenth century - via next political notion and constitution-making in Britain, France, and the USA.

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The pure doctrine demands the complete separation of the personnel of the three branches of government, but this can be modified to introduce a partial separation of persons. That is to say that some people may be allowed to be members of more than one branch of the government, although a complete identity of personnel in the various branches will be forbidden. Again, as with the separation of functions, such an approach does not mean that the idea of 20 SEPARATION OF POWERS AND INSTITUTIONAL THEORY the separation of powers has been wholly jettisoned.

The legislative power thus becomes a genuine power to make laws, laws which are seen as the commands of the law-making authority. "The primary and proper efficient cause of the law," said Marsilius, "is the people ... " 26 This essentially modern view of law led Marsilius to make a distinction between the legislator and the ruler, but a distinction which was still cast in a medieval mould. " but he distinguished the "parts" of the State in a way that was quite different from that of earlier writers.

I, pp. 4-5 14 Ibid, Vol. I, p 4; and C H Mcllwam, The High Court of Parliament and Its Supremacy, New Haven, 1910, pp 109-10 15. , P: 110. See also A von Mehren, "The Judicial Concept of Legislation gland," In P In Tudor Sayre (ed ), lnterpreiatums of Modern Legal Philosophies, New York, 1947, p 751 27 En- CONSTITUTIONALISM AND THE SEPARATION OF POWERS However, Professor Plucknett points out that as early as the first half of the fourteenth century the English judges frankly faced the fact that law was being made by statute, and that their decisions created generally applicable rules.

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Constitutionalism and the Separation of Powers by M J C Vile


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