Introduction

According to Hart, the Legal positivism theory includes a ‘rule of recognition’, which warns residents of jurisdiction regarding the legitimacy of the law of the land. For a legal rule to be effective in the United States, it needs to be established by a procedure defined in the relevant constitution. Therefore, for the federal government of the U.S., the Constitution acts as the code of recognition which is also considered to be the ultimate source of law. The doctrine of separation of power, therefore, is called a theory and not a rule of law. Through this system, the governance of a state is portrayed. Three branches of government, such as the executive, the legislative, and the judiciary, are defined by this concept along with the strong distinction between these branches, to avoid the abuse of power. This internal and administrative process often regulates the power of a specific State. Numerous academics and historians think this practice is an essential aspect of constitutionalism. Each division has its autonomous powers and responsibilities under this theory. Hence, it is necessary to ensure that the powers of one branch do not interfere with the other branches. As some scholars are of the view that the idea of power separation is old-fashioned, thus it is not adequately represented in the current legal system. This paper mainly focuses on the discussion of the legal systems of the USA, France, and Germany concerning this aforesaid statement. While discussing the same, it also sheds light on the comparison between the legal systems of the USA, France, and Germany.

Discussion

‘Trias Politica’ model is another name of the model of the separation of power. This theory is distinct from the constitutional merger of powers and the semi-presidential arrangement of similarities between the executive and legislative branches. At the time of writing the Constitution, the Founding Fathers restricted the authority of central government in distributing powers, and they even split the federal government into three independent branches. After the Federal Government was established with the U.S. Constitution, each US state take on related provisions in its constitutions.

In general, power separation generally refers to the division of responsibilities divided into separate branches of government in such a way so that one branch would not be able to exercise the responsibilities of another. The legislative branch has the responsibilities of making the rules. The laws were sanctioned by the executive and construed by the judiciary. The objective behind this principle being implemented is to avoid the abuse of forces by numerous checks and balances. Montesquieu is the individual who articulated the principle of power separation. The writer of the famous novel, ‘The Spirit of the Laws’, is written by Montesquieu in which he stated that when the legislative power is added to executive power, there is no independence due to tyrannical law. According to him, to avoid dictatorship it is important to divide the identical but diverse forces between the individuals and authority. If the responsibilities are not sufficiently distributed between the various departments, then there could be a misunderstanding which will create problems in the future. The government cannot impose an infinite amount of power on one individual or group of persons without the division of power.

The US Constitution is a perfect example of the separation of powers. In fact, at the time of drafting the US constitution, the Founding Fathers had also divided the federal government’s powers into three independent branches. Thus, every US state has introduced similar clauses of its constitution. Under the US Constitution, the laws were passed by the legislature, the rules were conscripted by the executive branch, and the judges gave their opinions and finally, the constitution serves as the ultimate source of law. The US Constitution was adopted in the year 1787 and came into force in 1788. This is considered to be the ‘Supreme Law of the Country’ that are subjected to all other statutory sources. As per Article VI (2), this Constitution and the United States laws to be drawn up in conformity with it; and all treaties negotiated or ratified under the authority of the United States shall be the ultimate law of the country; and it can bound the judges of each State, notwithstanding any matter in the Constitution or the conflicting laws of any State. Every state of the US has its constitution which is related to the subject of federal legislation.

           However, the legal system of France and Germany are different from the US. In the case of France, a dual legal system is observed. One division is known as Droit Public or Public law in which the principles concerning the operation of state and public bodies are defined. This legislation is usually enforced by courts of public law, known as administrative tribunals. Another division is known as Droit Prive or Private Law, refers to private entities and private institutions.

           Whereas, the legal structure of Germany is a constitutional one whose uppermost legal source is the Federal Republic of Germany’s basic law of 1949, which establishes the new judiciary, but it comes from the German codes and is therefore primarily codal in nature as regards to the rule issued in a court of law. The comparison of these legal systems are discussed below:

Based on Primary legislation, treaties concluded by the United States and federal statutes had equal jurisdiction. It can be either self-executing or non-self-executing. Treaties are generally regulated only by the Constitution. The more recent one tests a discrepancy between a treaty and a federal law. The President can conclude a treaty with the assent of two-thirds of the senators who vote. Statutes are different from treaties. If a majority of both the Houses of Congress cast their votes to implement a bill, it becomes law. Federal laws are generally called as statutes. The federal laws are systematically written in the Code of the United States. Moreover, the Code is not a law. Mainly the statutes are reasonably presented in the Code. Statutes passed by Congress shall only be subject to the Constitution. All public laws are published by the Office of Government Publishing and the collection is known as ‘Statutes a Large’.

In the case of France, the expression Ioi is used for two purposes:

1. Legislation passed by the Principal legislature (the National Assembly and the Senate);
2. Written rules duly enforced by the approved source, including the Constitution, codes, regulations, and laws.

The most vital legislation in the form of codes is the Civil Code of 1804 and the Civil Procedure Code of 1806. The Journal Officiel publishes legislation.

Whereas, in the case of Germany, the expression Gesetz is used for two purposes:

1. Legislation passed by the Federal Parliament or the Parliament of an individual state;
2. Written rules duly enforced by a competent authority, including the Constitution, statutes, secondary legislation as regulations, codes, and bye-laws.

The most significant legislation in the form of codes is the Civil Code of 1900 and the Civil Procedure Code of 1877. The Federal Law Gazette publishes legislation.

However, State statutes are subject to appropriate federal and state statutory legislation. The most usual type of legislation is the State statutes. State statutes follow the same method as the Federal legislature, with different nomenclature. In case of Kentucky, the legislature is known as the General Assembly, containing the House of Representatives and the Senate. Bills that pass in both the houses are Laws that can be found by historians in the Kentucky Acts or the topically ordered Kentucky Revised Statutes in chronological order. In case of Texas, bills passing both of the houses turn into General Laws which are published in the General Laws of Texas before being incorporated into one of the separate codes named for the topics covered by them. 

In the US, only those kinds of disputes are protected by the Constitution which is listed in Section 2 of Article III. Judicial judgments given by a court must follow the prior definition of a law given by other courts of similar or higher ranking which is known as ‘Stare Decisis’ and it is also applied in several state court systems. Among the 49 states of the states, Louisiana is the only state which has civil jurisdiction. As per the Civil Code of Louisiana, legislations and customs are considered to be the sources of law. In Boyett vs. Redland Ins. Co. case the court held that ‘Stare decisis’ is alien to civil law and common law systems, such as Louisiana. Judges act based on their understanding of the statute in Louisiana. Due to a tradition of civil law, the constitution does not include, the right to jury trials in civil cases, although this privilege is included in the Revised Statutes of Louisiana. 

However, in the case of France, the laws are interpreted and applied by the judges. For similar cases, the laws can be interpreted differently by the courts. Generally, the courts tend to obey earlier decisions given by the higher courts, but the courts can disregard the decisions of a higher court too. A variety of related decisions and the minimal number of decisions which are known as principle judgments needs more attention.

Whereas, in the case of Germany, under a strict precedent theory, the courts are not bound to follow the decisions given by the higher courts. In the context of established and concretized concepts, case law is essential. In general, the lower courts comply with high court decisions. As per Article 20 of the Basic Law, legislation and regulation are binding on the courts. However, the Federal Constitutional Court is an exception to this general rule and the legislative bodies are bound to follow its decisions. Numerous forms of its decisions are legally binding and can dominate statute law. 

Based on Customary law, in the US, customs, a collection of judicial decisions, and general principles are considered to be as common law which is also taken into consideration by the court where the Constitution is vague and Congress has not passed legislation on the matter. No regulation or fundamental principles of law can be violated by customs.

However, in the case of France, the laws need to be developed through imitation and repetition, needs to be approved and consented by the public, and must be recognized as binding.

Whereas, in the case of Germany, apart from the law, the custom is the only other officially accepted source of law. It occurs when a long-term custom persists and people who suffer understand its legitimacy. It should be accepted by the courts as binding. 

However, the legal system and sources of law of the US, France and Germany have great importance in the case of studies. In the US, the courts often take note of the works of well-known lawyers. In France, the sources of law are known as ‘doctrine’. It may take the shape of a thesis, manual, treaties, or article. It may also be organized by an expert or a specialist concerning a case. Academic writing will also impact the courts in implementing new legal approaches. Whereas, in the case of Germany, the impact on the progress of the law was substantial. While giving decisions, previous court judgments along with expert views are cited. The academic writings will influence courts in the creation of new concepts.

Conclusion

Therefore, from the above discussion, it can be concluded that separation of power has great importance in the legal system. It is a fact that the system is very old fashioned as for this reason not properly accepted by all the countries but where it is accepted that countries understood the benefit of it. The main benefit is that it minimizes the possibility of arising conflict situation between the branches of the government. In this regard, the legal systems of France, Germany and the US have some differences. However, the main objective of all these countries is same-to provide fair and impartial judgment.

Bibliography

Books & Journal

Ben-David, Joseph. Centers of learning: Britain, france, germany, united states. (Routledge, 2017).

Bradley, Curtis A. International law in the US legal system. (Oxford University Press, USA, 2015).

Brouard, Sylvain, and Christoph Hönnige. “Constitutional courts as veto players: Lessons from the United States, France and Germany.” European Journal of Political Research 56.3 (2017): 529-552.

Derlén, Mattias, and Johan Lindholm. “Characteristics of precedent: the case law of the European court of justice in three dimensions.” (2015) German Law Journal 16.5: 1073-1098.

Hestermeyer, H. “The implementation of European Union Law in Germany.” (2015) The implementation of international law in Germany and South Africa. Pretoria University Law Press, Pretoria: 444-467.

Michaels, Jon D. “An enduring, evolving separation of Powers.” (2015) Colum. L. Rev. 115: 515.

Rosenbloom, David H. “3a. Public Administrative Theory and the Separation of Powers.” The Constitutional School of American Public Administration. (Routledge, 2016). 78-94.

Thirlway, Hugh. The sources of international law. (Oxford University Press, 2019).

Troper, Michel, and Christophe Grzegorczyk. “Precedent in France.” Interpreting precedents. (Routledge, 2016). 103-140.

Wigmore, John H. “Louisiana: The Story of its Legal System.” (2015) Tul. L. Rev. 90: 529.

Cases

Boyett vs. Redland Ins. Co. [2014] 741 F.3d 604, 607-08 (5th Cir.)