The Rule of Law and the Separation of Powers

The Rule of Law and the Separation of Powers The rule of law and the separation of powers have a particularly important role to play within the UK’s unwritten constitution. They allocate and restrain power so as to ensure that the constitutional system remains accountable and limited. It is a common observation that the UK does not have a written constitution. However, it is the existence of mechanisms such as respect for the rule of law and the operation of a (more or less) rigorous separation of powers together with devices such as constitutional conventions that allows this jurisdiction to lay claim to the existence of a constitution albeit one which is not formally recorded in a written document. Bradley and Ewing[1] analyse the rule of law by focussing upon three aspects of its operation in contemporary society: the simple maintenance of law and order; the requirement that government be conducted according to the law; the broader concept of the rule of law as a broad political doctrine which goes beyond an analysis of the operation of particular laws and encompasses the values of a free and democratic society. The â€Å"law and order† model which holds that order is better than anarchy. The difficulty with this approach is that it is possible thereunder to characterise a military dictatorship as functioning according to the rule of law since a form of order is maintained and courts may even continue to function to resolve private disputes between citizens. However, the authors make the point[2] that â€Å"†¦constitutionalism and the rule of law will not thrive unless legal restraints apply to the government.† A better approach is to examine the manner in which the courts have the ability to challenge the acts of the Executive and other public authorities. The use of judicial review to scrutinise the actions of Ministers and Government Departments is familiar. Further, in M v Home Office[3] it was even held that a Minister of the Crown could be guilty of contempt of (one of Her Majesty’s) Courts. The argument that the courts had no such powers against ministers met with a stinging rebuttal: â€Å"[This argument] would, if upheld, establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition which would reverse the result of the Civil War.†(!) The principle has been further reinforced by the adoption of the European Convention on Human Rights which now provides a mechanism by which the very laws of this jurisdiction can be examined to ascertain their â€Å"lawfulness†. The concept of the rule of law as a broad political doctrine has generated much debate. One the one hand, it is possible to argue that the law comprises a set of absolute values distilled from centuries of legal experience; on the other it may be argued that the rule of law is a flexible concept which has to be adjusted in accordance with the prevailing social and political circumstances of the time. Professor Joseph Raz[4] argues that the rule of law is a â€Å"political ideal which a legal system may possess to a greater or lesser degree† and that it is â€Å"just one of the virtues that a legal system may possess and by which it is to be judged†. Raz therefore does not invest the rule of law with any inherent moral authority stating expressly that it â€Å"is not to be confused with democracy, justice, equality (before the law or otherwise) human rights of any kind†¦Ã¢â‚¬  While this approach may be highly respected from a jurisprudential perspective, it is of little value in understanding the operation of the rule of law in the UK constitution. A far more preferable and workmanlike analysis is that of Friedrich von Hayek in the seminal work The Road to Serfdom[5]. He propounds the thesis that the function of the rule of law is to ensure that the government is bound in all its actions by rules fixed and announced beforehand. Such a state of affairs makes it possible to predict how the government will employ its coercive powers in a given situation and to plan one’s individual affairs on this basis. Thus the rule of law in the UK constitution is founded upon certainty: laws are democratically debated and publicly promulgated and, as a general rule, do not operate retrospectively. The UK citizen is therefore protected from the â€Å"whim of the tyrant† approach to lawmaking and has the added shield of the power of the courts (domestic and European) to review government action and the validity of the laws themselves. In order for such a system to be maintained, especially in the absence of a written constitution to which recourse may be had in the event of alleged injustice (as in the USA), it is essential that there be a clear separation of powers between the three branches of government: Executive, Legislature and Judiciary. This separation is clear cut in the USA – the President forms the Executive, Congress is the Legislature and the same personnel cannot serve in both (save that the Vice-President chairs the Senate). Government action can be reviewed by the Supreme Court. In the UK, as might be expected given the historical evolution of the constitution as opposed to its imposition by a written document, there are certain anomalies and overlaps. By constitutional convention, the Prime Minister is the leader of the party with the majority in the House of Commons. Ministers of State are recruited for the most part from members of the Commons with a smaller number from the Lords. The sys tem of party political â€Å"whipping† has the result that (save in the case of occasional highly-publicised rebellions) the actions of the Legislature reflect the will of the Government of the day. The Judiciary is more demonstrably independent and some would argue that this is now the more so as a result of the steps to relocate the functions of the highest appellate court in the UK from the Judicial Committee of the House of Lords to an entirely distinguishable Supreme Court. This process has generated much political and constitutional heat. It was strenuously argued that the presence of the Law Lords in the legislative assembly of the House of Lords was offensive to the concept of separation of powers. However, defenders of the status quo pointed to the fact that their Lordships by convention scrupulously refrained from debate upon issues which were likely to come before them in their judicial function. However, Lord Bingham[6] is sceptical as to the purity of the functio n of the judiciary: â€Å"The essential function of the court is then to interpret the law which it infers that parliament intended to make or would have made if it had addressed the point at all. This is not as legislative role, nor is it a purely interpretive role, since the court may have to do a good deal more than elicit the meaning of what parliament has enacted.† The most glaring anomaly in relation to separation of powers in the UK has been the figure of Lord Chancellor. He has served as a member of the Executive by sitting in Cabinet, as a member of the Legislature by acting as Speaker of the House of Lords and as head of the Judiciary. It has been observed[7] that successive Lord Chancellors have relied upon the â€Å"characteristically English argument† that eminent public figures can by definition be trusted so that a formal separation of powers is not required. This argument was propelled to new depths of disingenuousness by Lord Irvine in 1999[8] when he suggested that the presence of the Lord Chancellor straddling all three branches of government actually safeguarded separation of powers by supplying a voice in the Executive and the Legislature that was able to speak out on behalf of judicial independence. As with the rule of law, the European influence may be argued to strengthen rather than diminish separation of powers. Lord Irvine[9] argues that: â€Å"Incorporation [of the European Convention on Human Rights] will enhance the judges’ power to protect the individual against the abuse of power by the state. We have a high quality of judicial review in this country. It has often rightly held the executive to account and improved the quality of administrative decision-making. So the concept of judges protecting the citizen and holding the executive to account is nothing new. What is new is that the judges will be given a framework by parliament within which to interpret the law.† Thus it may be concluded that, notwithstanding the lack of a written constitution, the UK citizen is protected from capricious and unlawful acts of government by respect for the rule of law. This should not be regarded as an abstract philosophical concept: the principle operates within this jurisdiction to ensure that acts of government are transparent and predictable. When they fall short of these standards, the fact that there is a demonstrable independence of Judiciary and Executive (as has been seen the independence of the Legislature from the Executive is more questionable) means that the actions of government can be challenged and, if necessary, overturned. These various constantly evolving mechanisms ensure that the exercise of power within the UK constitution is accountable and limited. Bibliography Alder, J., General Principles of Constitutional and Administrative Law, (4th Ed., 2002) Allen, M. Thompson, B., Cases and Materials on Constitutional and Administrative Law, (7th Ed., 2003) Barnett, H., Constitutional and Administrative Law, (5th Ed., 2004) Bradley, A. Ewing, K., Constitutional and Administrative Law, (13th Ed., 2003) 1 Footnotes [1] Constitutional and Administrative Law, (13th Ed., 2003), Chapter 6 [2] Op. Cit., p.96 [3] [1994] 1 AC 377 [4] Quoted in Barnett, Constitutional and Administrative Law, (5th Ed., 2004) at p.77 [5] See Barnett, Op. Cit., p.79 et seq [6] (1996/97) 7 King’s College Law Journal 15-16 [7] Alder, General Principles of Constitutional and Administrative Law, (4th Ed., 2002) at p.114 [8] Speech to the Third Worldwide Common Law Judiciary Conference, Edinburgh, 5 July 1999 [9] Constitutional Reform and a Bill of Rights, [1997] European Human Rights Law Review 483

The Defense of Marriage Act Violates the Civil Liberties of Same Sex Couples :: gay studies, gay marriage, argumentative

Marriage is the religious and legal commitment between two people, as well as the ultimate expression of love. However, marriages between same sex couples are not recognized by the federal government due to the Defense of Marriage Act. In essence, their civil right to be married is withheld from them. The Christian majority's influence in federal policy and lawmaking is one of the foremost reason why same-sex marriage has continually failed to gain long term acceptance in the United States. Same-sex unions have come to the forefront of American politics in the last couple of decades, but history has shown that it is a longstanding issue. The first historical mention of same-sex marriages occurred during the early Roman Empire. Emperors Nero and Elagabalus both married male slaves and historians are much agreed that same-sex marriages were common. However as Christianity, then a new religion, gained momentum, it's sanctions against homosexuality eventually ensured that same-sex marriages lost favor. In fact, as new Emperors themselves were now Christians, a new law in the Theodosian Code was issued, prohibiting same-sex marriage and making the offense punishible by execution. Thus began a long history of Christian persecution of homosexuals. Today, the most common objection to same sex marriage again seems to arise from religious doctrine. Opponents argue that same sex marriage not only infringes on religious freedom and that such unions are in contradiction to the biblical purpose of marriage, but will also have the effect of normalizing and encouraging homosexual behavior. However, many Christian leaders have spoken out in support of same sex marriage, going so far as to state that it would only strengthen marriage as an institution. Christian supporters also note that in widely respected works of biblical records the term "homosexual" is never used, affirming the claims that the term is actually a mistranslation from the original text of the bible. They further attest that since the original authors of the bible never use the term homosexual, the bible cannot therefore forbid homosexuality and by extention, same-sex marriage. Furthermore, The Church of Canada, many Quaker organization, The Church of Christ, The Met ropolitan Community Church and some Catholic theologians have openly supported and approved same-sex marriages. The legal issues surrounding same-sex marriage in the United States are complicated by the nation's federal government system of government.

Madoff Case

20102004 Thi Ngoc Thuy Do 1. What are the ethical issues involved in the Madoff case? Bernard Madoff was accused of fraud and creation of a Ponzi scheme which lead to a $65 billion investment loss for hundreds of investors in over the world. Bernard Madoff started a legal business by buying and selling over the counter stocks that were not listed on NYSE. He deceived many people into thinking his operation as legitimate, and completely abused his respectable name and position of power for his own personal advances.He lied to his friends and clients from the beginning and as later documented in his allocution, he never invested any of the money he got. He became a thief. Madoff started a Ponzi scheme on levels never seen before. Madoff stole from friends, family and investors. Madoff did not invest the money as he promised; he simply used it to pay off the first set of investors at very high return rates (10-12%), so he could attract more money. There were also jobs given to family me mbers who could have helped the scheme. Madoff’s daughter was also married to a former Securities and Exchange Commission attorney.His company’s financial reports were never made public during the time of the scheme. I wonder how his company passed the tax audition imposed question on the SEC internal system. There is a big question for US government system. 2. Do you believe that Bernard Madoff worked alone, or do you think he had help in creating and sustaining his Ponzi scheme? Would this represent a conflict of interest? â€Å"Speaking as a Jew on Christmas, I would be less shocked if Santa Claus showed up to my house than if Bernie Madoff pulled off this fraud alone,† says Ron Geffner, a partner at law firm.So,I definitely believe Bernard Madoff did not work alone, he had help in creating and sustaining his Poniz scheme for 30 years. Without his accountants, family members, and other employees covering up his tracks, he wouldn't have gotten away with mislea ding so many officials who certified his operation as legitimate. Since these people were satisfied with the constant returns. They all shared in an expensive living condition, nobody questioned was made. Without these people, Madoff wouldn't have held up his operation for so long. Why internal accounting and auditing make no sense or Madoffs action. How Madoff elude investigation of SEC by transfer between his account and his familys account, those questions show that   Bernard Madoff need others help, he could not do these alone. The motivation of Madoff to set  Ponze scheme is very pure which only for money. The conflict of interest exists, the conflict  is between personal interest and public interest, Madoff and his family enjoys their luxury life style by cheating, public interest gets hurt. 3. What should be done to help ensure that Ponzi schemes like Madoff's do not happen in the future?In order to prevent Ponzi schemes from recurring, internal controls and compliance standards that detect misconduct must be implemented. Awareness on these types of crimes needs to be raised as well. Investors should pay closer attention and realize that just because someone may seem to have a perfect resume, doesn't mean they're completely well fit and will act ethically. The market is unpredictable, so no one can ensure 100% for your interest in future. Furthermore, Government should run SEC effectively, so people can trust them before incident occur.

Hamlets Metamorphosis Essay - 1907 Words

To be or not to be- that is the question... (III. i. 56)- so starts Hamlets most famous and well-known soliloquy. In William Shakespeares Hamlet, the main character- Hamlet- goes through many transitions. These changes are very apparent through his soliloquies, each of which shows him in a different state of mind. His first soliloquy exists merely to show his profound melancholia and the reasons for his despair (Mabillard Part 1... 3). He refers to himself as ...a rogue and peasant slave (II. ii. 577) by his second soliloquy and wishes he could arouse his passions (Mabillard Part 1... 5). As much as he wants to avenge his fathers murder, he does nothing yet because he wants everything planned exactly so (Mabillard Part†¦show more content†¦He wonders Why, she hang on [King Hamlet]... And yet within a month... With which she followed [Hamlets] fathers body Why she,... Married with [his] uncle (I. ii. 147-156) and knows it cannot come to good (I. ii. 163); yet he knows [he] must hold his tongue (I. ii. 164). Although he does not agree with what his mother has done, he knows he cannot say anything about it at this point in time. In his mind, he wants to say something, but as much as he wants to, he cant. Coleridge believes His senses are in a state of trance, and he looks upon external things as hieroglyphics (345) and goes on to claim that Hamlets mood in this soliloquy is caused by a disproportionate mental exertion, which necessitates exhaustion of bodily feeling (353). Additionally, this soliloquy hints at his ack of heroic stature and his unsuitability for the role of revenger(Cousins 2), when he talks about [his] fathers brother, but no more like [his] father/ Than [he himself] to Hercules (I. ii. 157-158). Hamlet, in comparing himself to the Greek hero, might indicate [Hamlets] developing lack of self-worth (Mabillard Part 1... 4). Hamlet does not look at himself as revenger- he loat hes Claudius and so in making a link between himself and Claudius and himself and Hercules, he is saying theyre really not alike. Hamlet believes he is not a man that can be depended upon to get revenge. The second soliloquy unveils the real conflict heShow MoreRelatedVengeance Shall Be Mine Essay842 Words   |  4 Pagesgone mad. It is noticeable to many that Hamlet has the biggest character development in the text. Hamlet’s character undergoes many behavioral changes when he is told by his father to avenge his wrongful murder by killing Claudius. I believe Hamlets transformation by revenge is a three stage process in which he evolves to a being consumed by revenge and vengeance. 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Polonius is also scornful of Hamlets motives and concerned that he will be discredited by Ophelias conduct. His command to her not to see Hamlet again is brutal, as is his decision to use her as a decoy to sound out the reason for Hamlets eccentric behaviourRead MoreGay Marriage Will Harm Children Essay1227 Words   |  5 Pagespremeditated, if the homosexual matrimony will possess the same rights as heterosexual matrimony, â€Å"this new formal relationship statuses and incorporation of the principle that both parents can be of the same sex, the social structure will begin its metamorphosis from the earliest human institution: the family†. We can enumerate two negative main reasons: the homosexuals live in a familiar situation completely divergent, not only this; they are likely to conglomerate an environment in which the androgynous