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Mangaliso Mtshali209 541 336Section A1.Separation of Powers“Separation of powers means that the function of government must beclassified as either legislative, executive or judicial and that thesefunctions must be performed by different branches of government. Thefunctions of making law, executing law and resolving disputes through theapplication of law should therefore be kept separate and in principleperformed by different institutions or persons”1The concept of Separation of powers originated from the philosophy of theAge of Enlightenment.Two authors are credited with the foundation of the idea; John Locke(1632-1704) and Montesquieu (1689- 1755)Separating the functions of the State among the various organs off thestate allowed State power to be limited.This doctrine reflects a distrust of State power and an attempt tostrengthen civil liberties2.Counter- Majoritarian dilemmaThe counter-majoritarian dilemma deals with one question: is judicialreview of valid legislation passed by a majority in parliament against theconstitutional idea of majoritarian rule?The logic behind this question is as follows. Members of parliament areelected by the electorate and are thus representative of the will of themajority. Legislation passed by the parliament gives effect to that will.Judicial review on the other hand scrutinizes legislation and in some casescan strike it down. The judiciary is a body of appointed individuals who do1Currie & de Waal, The New Constitutional and Administrative Law Vol 1 (2001): Juta 95

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Term
Fall
Professor
NoProfessor
Tags
Law, Separation of Powers, Parliament

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