Montesquieu’s Theory of the Separation of Powers, Legislative Flexibility and Judicial Restraint in an Unwritten Constitution
DOI:
https://doi.org/10.14296/ac.v4i3.5616Abstract
A constitution is a body of laws that is composed of various branches which exist as the legal source of its powers. These are designed to regulate by defining the role of the executive, legislature and the judiciary, which are the three organs of government that Baron Montesquieu defined as necessary in a constitution. The constitutional government can be evaluated on its capacity (i) to maintain the rule of law, (ii) to preserve an electoral mechanism for political democracy and (iii) to protect a morally and legally acceptable set of substantive rights. The conventions are the source of unwritten constitutions which preserve the balance of powers by relying on the concept of judicial restraint and deference to the executive. The contemporary relevance of Baron Montesquieu’s theory is in the context of a fused system, and the question is the extent to which the executive can override the judicial powers in matters of state.
Keywords: separation of powers; unwritten constitution; Westminster model; constitutionalism; juridical review; “one voice” principle; administrative deference.
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