Separation Of Powers: The And The Modern Day German Constitutions Review

The United Kingdom and the modern day German constitutions arose out of completely different circumstances. The UK does not have a single codified constitution, instead, the constitution is formed from several sources, including statutes, case law and international treaties, which evolved from a long and varied history. It has never been thought necessary to consolidate the basic building blocks of this order in Britain. In stark contrast, World War II was the most destructive war in history. In the aftermath, the Allied Control Council looked to rewrite the German constitution to create a higher degree of the separation of powers to prevent a tyrannical government ever forming again. This paper considers the different characteristics of both constitutions and why for some a codified constitution is preferable to an uncodified on the basis of clarity and certainty for the general population.

Around the world legal systems vary greatly, but most democratic countries follow civil law or common law. In common law, past judicial rulings are used to decide cases at hand. Under civil law, codified statutes and procedural rules govern. Some countries like South Africa use a combination of civil and common law.

Within the civil law system, there is no judicial precedent, the judge establishes the facts of a case and applies the relevant provisions as set out by the codes and applying the law as it stands. Some similarities can be drawn from civil and common law systems. Both have statutes and both have case law. However, they approach regulation and resolve issues in different ways, from different perspectives.

The UK’s constitution is not written in a single document, but stems from a number of sources that are part written and unwritten, including EU law (for now), conventions, Acts of Parliament, Royal Prerogative and the common law. Parliamentary sovereignty, the rule of law and the separation of powers are principles that underpin the constitution. Crucially, among these is the unwritten principle that parliament is sovereign; that Parliament is able to make and unmake any law it wishes. Many people argue that the UK needs to have a written constitution to repress the power of the executive, however this would undermine the principle of parliamentary sovereignty.

Traditionally, the UK is divided into three branches each with separate and independent powers and responsibilities: an executive, a legislature and a judiciary. None of the three branches may exercise the power of the other. The origins of the principle can be attributed to Locke’s Second Treatise of Government (1689)[footnoteRef:1], in which he identified the ‘executive’ and ‘legislative’ powers as needing to be separate. However, it was Montesquieu, in L’Esprit des Lois (1748)[footnoteRef:2], who identified judicial power as the third branch of government. [1: https://oll.libertyfund.org/pages/john-locke-two-treatises-1689 ] [2: https://d1n7iqsz6ob2ad.cloudfront.net/document/pdf/532355a7e1df7.pdf ]

The Royal prerogative, historically, were powers exercised by the reigning monarch. In modern times, the prerogative enables Ministers, for example, to deploy the armed forces, enact international treaties and to grant honours. Statute law cannot be altered by use of the prerogative and remains subject to the common law duties of fairness and reason.

“Rule of law is a principle under which all persons, institutions, and entities are accountable to laws that are publicized, equally enforced, independently adjudicated and consistent with international human rights principles.”[footnoteRef:3] Ideas about the rule of law have been significant since Aristotle distinguished “the rule of law” from “that of any individual.”[footnoteRef:4] In general, the rule of law suggests that the creation of laws and their enforcement, are legally regulated, so that no one is above the law. This was a common belief held by Arthur Venn Dicey who stated that ‘no man is above the law’ and ‘man can only be punished for a specific breach of the law established in the ordinary way, before the ordinary courts’ [footnoteRef:5] This was also a belief held by Lord Bingham, however, he had more of a substantive argument, going beyond the basics of recognising the equality of everyone and identifying the differences. He believed in eight rule of law principles[footnoteRef:6], in summary, that the law should apply equally to all, be accessible and predictable, not by the exercise of discretion and applied in good faith, fairly, for the purpose for which the powers were conferred. [3: https://www.uscourts.gov/educational-resources/educational-activities/overview-rule-law ] [4: http://classics.mit.edu/Aristotle/politics.html ] [5: Dicey, A. V. (1885). Lectures Introductory to the Study of the Law of the Constitution] [6: Tom Bingham, Rule of Law (2011) 8 https://www.biicl.org/documents/1567_the_rule_of_law_in_parliament_2015_16_final.pdf?showdocument=1 ]

In May 1945 following the German military leaders’ unconditional surrender, Germany was de-Nazified and disarmed as an independent military force. By 1949, a parliamentary council began drafting a new constitution. An extensive bill of rights, centred on a civil law legal system and its central theme was to give political freedoms to the people. The first and fundamental right is human dignity, which is protected under Art. 1. Every individual will always be protected, even against their own will.

The system is based around five codes – constitution, civil code, criminal code, civil law procedural code and criminal law procedural code. The political system is segmented into three levels of government – the Basic Law, the Constitutional Court and the Federal Constitutional Court. The Federal Constitutional Court is the highest court of the country. It is installed as the protector of the German constitution and its values. Only The Federal Constitutional Court may declare legislation unconstitutional.

The topic of a codified constitution has been hotly debated in the UK for years. Some believe codification would clarify the role of institutions, such as parliament and bring transparency and knowledge about constitutional rules, reducing the number of disputes and better constraining the executive branch. Others believe it would modernise state. However, in Germany it can be a lengthy and arduous process to introduce new laws or amendments to the constitution.

In summary, The UK has functioned reasonably well without a formally codified constitution for generations. These facts suggest that the benefits of further codification are likely to be minimal, only hindering progress and change.