Chapter

Law, Liberty, and the Separation of Powers

T. R. S. Allan

in Law, Liberty, and Justice

Published in print December 1994 | ISBN: 9780198259916
Published online March 2012 | e-ISBN: 9780191682025 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780198259916.003.0003

Series: Clarendon Paperbacks

Law, Liberty, and the Separation of Powers

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Jon Locke captured the essential feature of the separation of powers. Government can be made subject to law only when the legislative function is clearly distinguished from policy-making and administration. The possibilities for arbitrary action, perhaps directed at unpopular groups or political opponents, are much reduced where the executive acts under general rules. The division of powers and functions between government and judiciary assumes a fundamental distinction between administrative policy and legal right. If the government is to be free to govern, it must be permitted an appropriate sphere for the formulation and implementation of policy. In order to maintain the separation of powers between the courts and Parliament there must be appropriate judicial deference to the legislative command. In the absence of a tradition of judicial review of primary legislation, ultimate responsibility for reconciling individual rights with the needs of the public interest rests with the legislature.

Keywords: John Locke; separation of powers; Hayek; public interest immunity; legislative supremacy; Lord Diplock

Chapter.  14434 words. 

Subjects: Constitutional and Administrative Law

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