Short Remarks on the Principle of Separation of Powers

Author:Ionela Despa
Position:University of Craiova, Faculty of Law and Administrative Sciences
Pages:244-247
SUMMARY

The principle of separation of powers, as a basic principle of a real democratic political system, concerns that state activities, powers are separated by the fact that they take place separately, distinct from one another, each with its specific, but in the social polical reality it can be seen that there are links between public authorities in terms of organizational and functional, namely... (see full summary)

 
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European Integration - Realities and Perspectives
2012
244
Short Remarks on the Principle of Separation of Powers
Ionela Despa
1
Abstract: The principle of separation of powers, as a basic principle of a real democratic political system,
concerns that state activities, powers are separated by the fact that they ta ke place separately, distinct from
one another, each with its specific, but in the s ocial polical reality it ca n be seen that ther e are links
between public authorities in terms of organizational and f unctional, namely cooperation and mutual
determinations. In terms of organization, the link is given by the fact that some state bodies involved in the
formation of other, and the functional aspect concerns the connection of collaborations: the
constitutionality of laws passed by Parliament is controlled by the Constitutional Court or Government
activity can be examined by Parliament. The modern form of the p rinciple of separation of powers requires
autonomous public authorities, sharing their incumbent functions, establishment of means of cooperation
and mutual control, all in the ambience of a genuine and real autonomy. So a state cannot work unless the
law adopted by thelegislature is applied to urge the executive and the judiciary by the executi ve contest
carries out its dec isions. This cooperation should be accompanied by a power control, equipped with legal
and institutional means that will not neutralize eachother.
Keywords: freedom of individual; delimitation; liberal democracies
1. Introduction
The separation of powers is considered a condition of the existence of the rule-of-law state. The origin
of the theory of separation of powers is in Antiquity, at the historians Herodotus and Thucydides, at
the philosophers Plato and Aristotle, at the writers Aeschylus and Sophocles.
The matter of the separations of powers has been clearly formulated for the first time by John Locke,
his preoccupation starting from the practical necessity to moderate the force of the state’s powers.
Locke considered that in the state exist three powers: the legislative power, the executive power and
the confederative power. He does not differentiate a judicial power, having the opinion that this
depends on the legislative power, but distinguishes four functions of the state, one of which is the
jurisdictional function.
As for the confederative power, he defines it as being: “a power which we can call natural, because it
corresponds to a faculty which every man had before entering the society. This power comprises the
right to peace and war, the right to form leagues and alliances and to have all kinds of negotiations
with the persons and communities outside the state”.
John Locke, in his work “Essay on Civil Government” (1960), argues the necessity to transpose in
practice this principle as follows “The temptation to get at the power would be too great if the same
persons who have the power to make laws would also have in their hands the power to execute them,
for they could be exempted from the laws they are making”.
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Univers ity of Cr aiova, Faculty of Law and Administrative Sciences, Address: 13A. I. Cuza, Cr aiova 200585, Romania:
Tel.: +40 251 414398, Fax: +40 251 411688, Corresponding author: ioneladespa@yahoo.com.

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