The Theoretical Establishment Plan of Separation of Powers as an Organizational Feature of Constitutionalism with Emphasis on the Ideas of Filmer and Locke

Document Type : Original Article

Authors

1 Assistant professor, Public law, Faculty of law,Shiraz University, Shiraz, Iran

2 Phd student, Public law, Faculty of law,Shiraz University, Shiraz, Iran

Abstract

 
The separation of powers based on the natural equality of human beings is an essential organizational feature of constitutional government. The clarification of this doctrine - which is the mission of this paper - depends on its pursuit to the concept of equality in freedom. By examining the works of Filmer and Locke, an attempt has been made to draw the direction of movement towards the separation of powers after the impeachment of this foundation. The results of this study are as follows: natural equality in disobeying the individual will of others, promotes the law as a non-individual will and the level of unity of the society of equals. Such plan of the law requires all people and ruling institutions to obey the law. In the rule of law system, no absolute will has the legitimacy to impose itself on others; therefore, the legitimacy of the actions of law enforcers and drafters is "conditional" to the legal framework. Since the government is considered the executive power, it is not possible to guarantee compliance with the law except by creating a structural conflict between its independent parts. Therefore, the separation of powers with the separation of institutions that perform various functions of the government provides an institutional solution to protect the constitutional government. Based on these results, in addition to clarifying the relationship between the separation of powers and constitutionalism, the conditions for the fundamental entry into the discussion of the usefulness of this doctrine for the current situation and its comparison with the Iranian-Islamic tradition are provided

Keywords

References

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History

  • Receive Date: 16 May 2022
  • Revise Date: 13 June 2022
  • Accept Date: 01 August 2022

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