History[ edit ] Lady Justice Latin: Justiciasymbol of the judiciary. For instance, in Francethe jurisprudence constante of the Court of Cassation or the Council of State is equivalent in practice with case law. However, the Louisiana Supreme Court notes the principal difference between the two legal doctrines:
Antiquity[ edit ] Aristotle first mentioned the idea of a "mixed government" or hybrid government in his work Politics where he drew upon many of the constitutional forms in the city-states of Ancient Greece.
Early modern biparty systems[ edit ] John Calvin — favoured a system of government that divided political power between democracy and aristocracy mixed government. Calvin appreciated the advantages of democracystating: Calvin aimed to protect the rights and the well-being of ordinary people.
Enjoying self-rule, they established a bipartite democratic system of government. The "freemen" elected the General Courtwhich functioned as legislature and judiciary and which in turn elected a governor, who together with his seven "assistants" served in the functional role of providing executive power.
Except for Plymouth Colony and Massachusetts Bay Colony, these English outposts added religious freedom to their democratic systems, an important step towards the development of human rights. He deduced from a study of the English constitutional system the advantages of dividing political power into the legislative which should be distributed among several bodies, for example, the House of Lords and the House of Commonson the one hand, and the executive and federative power, responsible for the protection of the country and prerogative of the monarch, on the other hand.
The Kingdom of England had no written constitution.
In reality he referred to "distribution" of powers. In The Spirit of the LawsMontesquieu described the various forms of distribution of political power among a legislaturean executiveand a judiciary. Montesquieu's approach was to present and defend a form of government which was not excessively centralized in all its powers to a single monarch or similar ruler, form of government known then as "aristocracy".
He based this model on the Constitution of the Roman Republic and the British constitutional system. Montesquieu took the view that the Roman Republic had powers separated so that no one could usurp complete power. In every government there are three sorts of power: By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that have been already enacted.
By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions.
By the third, he punishes criminals, or determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the other, simply, the executive power of the state. When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.
Again, there is no liberty if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator.
Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end of every thing, were the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.
If the legislative branch appoints the executive and judicial powers, as Montesquieu indicated, there will be no separation or division of its powers, since the power to appoint carries with it the power to revoke.Separation of Powers: A Judicial Balancing Act As the branches occasionally struggle with the scope of their respective powers, and as we in the courts work to uphold our judicial duties without.
The modern administrative state, however, blurs the separation of powers and the system of checks and balances and has become an unaccountable fourth branch of government.
The Powers of the Judicial Branch By Phyllis Naegeli: 1 Courts and judges make up the judicial branch of our government. There are three separate court levels in this branch, District Courts, Court of Appeals, and the Supreme Court. The Constitution created the Supreme Court and gave the power of establishing other courts to the Congress.
Judicial review means that the judicial branch has the power to review legislation passed by the legislative branch or policies enacted by the executive branch. Separation of Powers describes the way in which government is divided into different branches (ex.
in the U.S., the legislative, executive, and judicial). Checks and balances describe the powers each branch has to “check” the other branches and ensure a balance of power. judicial powers refers to the power of the Judicial Branch of the United States government to hear cases and interpret, enforce or nullify laws and statutes in order to render verdicts.