A history of legal codification and separation of powers (2023)

Laws and Legal Ordersit is intended to be the framework through which moral norms and social order are maintained, with the utilitarian aim of benefiting a social group as a whole; be it a tribe, a community, a nation-state and its separate jurisdictions or, in the case of international law, people all over the world.

Without laws, written or understood by custom, social groups are at risk of falling into “lawlessness” and concomitant acts that can be selfish, opportunistic, harmful, and dangerous – behaviors that can simultaneously satisfy a group’s desires or cause serious harm. . harm another person inflict

By the way, the word anarchy derives from the Greek word anarchos, which means leaderless; a state that is often considered the opposite of law and order and equated with an undesirable and dangerous state of disorder.

The first recorded use of the English word anarchy was in 1539, denoting the absence of government. Its current connotation has expanded to include various states of disarray and confusion.

Origins of written law.

Although considered a mosaic and often inconsistent and even contradictory, there are records of rules recorded by Egyptian pharaohs.for 5000 years.

It is believed that the first of these laws wereformalized and developedunder the Egyptian king Menes, around 3000 BC. BC, with crime and punishment based on religious virtues and moral principles.

codified laws

The Codex of Hammurabi, named after the Babylonian king who reigned from 1792 to 1758 B.C. and according to legend it was calledthe laws given by the God of Justiceknown as Shamash, he is credited with documenting such a law for posterity.

Apparently, the text of the law was composed and written by the king himself in the ancient Babylonian dialect of Akkadian.

They carved the laws in stone or marble and appointed judges to ensure their obedience, and they were distributed in prominent areas of the Babylonian kingdom.

A major specimen was inscribed on a basalt stele that can be seen in theLouvre Museumin Paris

Although this was considered to be the first recorded written code, it is claimed that the first real legal codes were formulated among them.2100 and 2050 against Chrof the ancient Sumerian king Ur-Nammu.

King Ur-Nammu seemed to allow his people to believe that laws came from the gods, the moon god, especially Nanna, as he thought humans would be less likely to go against the gods. A king with psychological abilities.

The ancient kingdom of Sumeria was located in the southern part of present-day Iraq, which the Greeks later called Mesopotamia.

Romanian Lei of 450 BC.32-man juryfrom the wide Law of the Twelve Tables (Lei de twelve tables)

Unfortunately, discrimination has not yet been addressed in society.

No profit, no fee Once it was easy, no fee

Around 204 B.C. A law prevented Roman lawyers from charging fees to represent a client, usually a friend or someone recommended by an acquaintance. This does not mean that this law precludes paying a fee based on an annuity or similar method.

Emperor Cláudio, however, authorized the practice of law as a profession and allowed the formal collection of fees, although with a maximum limit of10,000 sisters. (equivalent to $0.50 along with other confusing calculations in current currency)

Indeed, that would have been a considerable fee, it would have been thought at the time, although it was not considered as such.

(Video) Separation of Powers and Checks and Balances: Crash Course Government and Politics #3

law in the united states

The Constitution of the United States, written in 1787, ratified in 1788 and effective in 1789, assigns to the American courts the responsibility to interpret the meaning of the Constitution, in addition to the laws passed by the Congress of the United States, since it codifies the fundamental values ​​of society .

Any conflict between the Constitution and laws passed by Congress is favored by the Constitution.

It took a while for lawyers to be accepted in the American colonies, some colonies even ban lawyers. However, as the colonies began to prosper, the need for lawyers became apparent, and bar associations were established to ensure that lawyers followed professional ethics, as did various law schools, colleges, and universities throughout the time.

Respect for the legal profession soon followed, and in 1793, four years after the Constitution, the first law degree was given by L.B. issued by the College of William and Mary and later named an LLB, then Juris Doctor (J.D.) in the 1960s, the first awarded by Harvard University.However, there is a difference.

However, this has been disputed in certain circles, who claim that the first independent law school established in the United States was Litchfield Law School in Connecticut, founded by attorney Tapping Reeve, who began admitting its first law students in 1774 to teach ; leading many legal historians to believe that the first law degree was awarded before the College of William and Mary.

How does the law work in the United States?

Essentially, Congress creates and passes bills, and the US President determines which laws are enacted and then reviewed by federal courts to ensure they are consistent with the US Constitution.

when a law is madeunconstitutional, is crossed out by the courts.

Congress consists of two legislative houses, the United States Senate and the United States House of Representatives, and members of both can propose new laws.

The separation of powers

In short, thedoctrine of separation of powersestablishes that the most important institutions of a society, the legislature, the executive and the judiciary, are shared to guarantee checks and balances that avoid any aspect of autocracy.

Essentially, the legislature makes the laws, the executive ensures that the laws are implemented and enforced, and the interpretation of those laws is the exclusive domain of the judiciary.

The function of each power, although interdependent, exercises separate functions and powers, avoiding certain previous monarchies and all dictatorships in terms of so-called absolutism.

Absolutism can be seen as a form of autocracy.

American-style separation of powers:

The doctrine of the separation of powers was enshrined in the US Constitution to prevent a government from dividing or a person becoming too powerful. In principle, each department, namely legislative, executive and judicial, should be completely independent and look after each other in terms of checks and balances.

One of the Founding Fathers of the United States, James Madison, said at the time the Constitution was written that the truth is that all men in power should be mistrusted.

It was believed that this would be possible with the three main branches of government working independently. it was the reason freedom would be maintained.

This concept was so well received that the vast majority of US states have introduced similar formats into legislation for their own governments to follow.

Of course, such a simple concept that promotes independence, equality and fairness and prevents corruption must also be easy to implement!

Not on your life, as the saying goes.

(Video) The Australian Constitution and the Separation of Powers

How can it be easy when you have them?President of the United States of America, among other things capable of:

  • issue executive orders,
  • Explain local and national emergencies,
  • grant and revoke security ratings,
  • Granting presidential pardons for federal crimes and
  • Withhold information from Congress by executive privilege.

The most famous American lawyer

This attorney graduated from the Springfield, Illinois Bar Association in 1836 and has represented clients in both criminal and civil cases.

He became a politician and then the 16th President of the United States of America from 1861 until his assassination in 1865.

His name was Abraham Lincoln.

Great Britain's step in its legal development

The Legal Terms Act 1830 provided the first evolutionary change to the 300-year-old criminal court system, bringing Chester and the Welsh counties into the General Circuit and abolishing the Court of Great Sessions.

The Old Bailey would soon exist and administer justice in London and its suburbs.

In 1846 the various county courts were amalgamated into a single courthouse under the County Courts Act, and 10 years later the Old Bailey was allowed to hear all cases to ensure that local prejudices would not unfairly influence a judgment.

The unification of the courts of common law and equity, including the Court of Chancery, allowed all courts to administer equity law and common law, noting that a division of the High Court was still under the Chancellery division. in for passing the Judiciary Act of 1873.

What we know as the Crown Courts were established in 1956, initially in Manchester and Liverpool, and dealt with the business of the Quarter Sessions in those cities.

The Courts Act 1971, created in response to theroyal commissionin Assizes and Quarters from 1966 to 1969 led to the formation of a unified Crown Court and the abolition of Assizes and Quarters.

The British version of the separation of powers

Many hundreds of years of evolution may have seen a more independent judiciary, but until 2006 the Lord Chancellor was still associated with the judiciary and government.

The 2005 Constitutional Reform Law was intended to change all that and has been hailed as the most important legislative change since the Magna Carta; supposedly ensuring the separation of powers was just that.

However, when Magna Carta Libertatum, also known simply as Magna Carta, was proclaimed in 1215 and was the first precursor to a quasi-form of separation of powers, that should have been enough as it made it clear that D. was not above the law

However, it would never be easy because soon after, King John asked Pope Innocent III to revoke the Magna Carta and created a war called the First War of the Barons between the English barons and the monarchy that lasted 2 years.

King John must have thought this idea of ​​separation of powers wouldn't work for him.

1,000 years into its existence and the British judiciary officially claimed it had a fully independent and equal branch of the state with no connection to government. Not so!

It has also been claimed that the independence of the judiciary was fully protected by the Constitutional Amendment Act 2005, which replaced the Lord Chancellor with the Lord Chief Justice as Chief Justice and Head of the Judiciary. However, that simply wasn't true.

Previously, the Lord Chancellor was part of both the government and the judiciary, as were previous Lord Chancellors, ensuring that there was the ever-present conflict of serving two masters.

(Video) Constitutional Division of Powers in Canada

However, it appears that the Lord Chief Justice now shares responsibility with the Lord Chancellor for the Office of Conduct Inquiries in Courts, which investigates complaints against magistrates.

Not only that, but other duties of a Lord Chancellor relate to judicial policy and remuneration.

Dominic Raab, who was appointed Lord Chancellor and Secretary of State for Justice in October 2022 and as such, as Deputy Prime Minister, has a clear connection to the Government, is a good example of what has just been discussed.

It is one thing to say that the Lord Chancellor's Office has a separate cadre of civil servants independent of Government, but the point is missed if the Head is not independent of Government and the Judiciary, and the absolute truth of the matter is that Dominic Raab simply does not face.

Of course, the Deputy Prime Minister also has aconnection with the judiciary, even if it is suggested that it be from a distance.

The Lord Chancellor, sometimes referred to as the Lord High Chancellor or Lord Keeper of the Great Seal, placed as a sovereign signature on state documents, etc., is the sole administrator of England.

Scotland, Northern Ireland and Wales have their own guardians for the great seals in these countries.

She Evolutionary Australian

With the colonization of Australia by the British came British law with the Australian Constitution of 1901, which ensured that Australia, which originally consisted of six colonies, New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia, had the start of an independent Australian legal system.

Since federation, Australians have had to deal with two main legal systems, one federal and one of the state they reside in or were transiting through when a legal issue arose.

Before colonization, Australian law consisted of a series of Indigenous common law systems, depending on region, clan and dialect, linked across generations through song, story and dance.

Here is a brief timeline of changes to the Australian Constitution:

  • 1906 - Senate Elections - Section 13 was amended to slightly change the length and dates of Senators' terms.
  • 1910 - Public Debt - Section 105 amended to extend the Commonwealth's power to assume pre-existing public debt to include debt contracted by a State at any time.
  • 1928 - Public Debt - Section 105A was added to ensure the constitutional validity of the 1927 financial settlement between the Commonwealth and state governments.
  • 1946 - Social Services - Section 51(xxvi) inserted to extend Commonwealth powers to Indigenous Australians in the state; repealed Section 127 which prevented the inclusion of all Indigenous Australians in the census on constitutional grounds.
  • 1977 - three changes: first, to ensure that random Senate seats are filled by a member of the same political party; second, allowing residents of Australian territories to participate in referendums; third, a mandate for a retirement age of 70 for federal judges.

she australian

The Australia Act 1986 (Cth) was enacted at the same time as a similar UK Act to bring constitutional rules into line with the Commonwealth of Australia's status as a sovereign, independent and federal nation.

This Act, including the six Acts passed by State Parliaments, made Australian law essentially independent of British Parliaments and its legal system.

While the Westminster Charter Adoption Act 1942 gave Australia a form of local government, the Australia Act removed remaining British legal authority at the federal level, although Queensland continued to use the British court system until 1988.

1986 was a good year for Australian law with the passage of the Australian Human Rights Commission Act 1986.

While this was a progressive but small step in the area of ​​human rights, the Australia Act was a big step for Australians, and not just in the area of ​​human rights.Deposition of the British Parliamentenact Australian law and remove the right of appeal in Australian courts; but acquiring complete and independent control over Australia's constitutional documentation.

In 1992, the Australian High Court declared Australia's previous legal concept of Terra Nullius invalid. A fair and moving judgment for all First Nations peoples.

laws enacted in australia

It is said that about half of a member of parliament's time is spent listening to, debating and voting on proposed new legislation or amending existing legislation, or even repealing legislation.

(Video) Codified vs Uncodified

The proposed legislation is called the Bills of Parliament and under the Australian Constitution, the proposal of new Commonwealth legislation and the amendment and repeal of existing legislation can only be carried out by or pursuant to an Act of Parliament.

By the way, this can only be done in relation to certain subjects, including:

  • international and interstate trade,
  • Foreign Relations,
  • Australian Defense Forces,
  • Immigration,
  • Taxes,
  • banks,
  • Safe,
  • marriage and divorce,
  • currency, weights and measures,
  • Australian Post and Telecommunications and
  • disability and old-age pensions.

australian states is still in control in many other ways, including:

  • local government,
  • infrastructure, including roads,
  • Health, including hospitals and
  • Education, including schools.

Both the Commonwealth and the states legislate on criminal matters, the Commonwealth being under what is known as an express subsidiary power.Section 51 (xxxix)of the Constitution or the powers implied in Articles 51 and 52, including Article 61 concerning executive power.

Further expansion byThe Commonwealth in relation to criminal law, when States believe that a Commonwealth law is more appropriate than that of any State or Territory and invoke the Commonwealth.

Examples of cases where this has happened include anti-terrorism laws and corporate regulations.

From simply prosecuting or legislating crimes against the Commonwealth, it now encompasses many other areas of national concern.

By the way, there have been many Royal Assent Acts that have benefited Australians from all walks of life and have improved the law in Australia, the details of which will form part of a series of SCLs in the near future.

The Australian brand of separation of powers

In adopting the UK's Westminster system, there is an important link between two branches in particular, the legislature and the executive; This means that the separation of powers as a whole cannot work as intended.

One of the reasons for this is that the legislative power exists in the form of parliament and the executive in the form of ministers who report to parliament.

In short, many believe it istoo much overlapbetween the different weapons for the following reasons:

  • The parliament, which makes and amends laws and is known as the legislature, consists of the king, represented by the governor-general, the senate, and the house of representatives.
  • The executive power that enforces the law consists of the king, the prime minister and other ministers.
  • Judiciary comprising the Supreme Court of Australia and other federal courts.

Here's the problem!

  • The prime minister and ministers form part of the executive and parliament.
  • Supreme Court judges, the Prime Minister (in the most unusual and exceptional circumstances) and ministers are formally appointed by the Governor-General, who sits in both Parliament and the Executive.
  • The Governor-General is appointed by the King on the advice of the Prime Minister.

However, the Australian judiciary maintains astrong degree of independence, in part based on constitutional guarantees of permanence and remuneration.

political scientist

It is clear that all democratic countries, by embracing the doctrine of the separation of powers, will produce a more transparent and just society, although there is no country capable or really willing to follow this doctrine to the letter.

This is because the powers of government are so complex and interrelated that they can be easily divided, leading to a few hiccups along the way.

However, for the same reason, no country can be called truly democratic unless it has some kind of separation of powers law.

Although some political scientists say that the theory is wonderful, but claim that the separation of powers is not really practiced, this is not true.

It is simply not practiced in the way that the French philosopher Charles-Louis de Secondat, Baron de La Brede et de Montesquieu, who wrote about it in 1748, had hoped, although some political historians claim that its origins can be traced back to Aristotle and Plato. others, who claim a stake in the original concept.

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Aristotle and Plato, philosophers specializing in politics, science and ethics, were Greek.

While it is not fully practiced in all countries that have adopted a version of it, its saving grace is that it provides a way to challenge legislative and executive branch decisions through a virtually independent judiciary.

Another key safeguard is that any such challenge will be subject to significant media exposure to ensure that the matter is investigated and, in many cases, dealt with appropriately.


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