Since the time of Aristotle it has been generally agreed that political power is divisible into three broad categories. There is, first, the legislative power which formulates and expresses the will of the State.
Being a representative assembly, the Legislature in a democratic government enacts the general rules of society in the form of laws. The laws of the State prescribe the manner in which people are expected to live in a politically organised society.
Secondly, there must be some power to see that the laws of the State are duly obeyed by all and there is no infringement. This is the work of the executive. There is, thirdly, the judicial power.
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The judges determine whether the law is applicable in a particular case or not. The judicial power determines “the manner in which the work of the executive has been fulfilled. It sees to it that the exercise of executive authority conforms to the general rules laid down by the legislateure.”
If the executive acts in excess of the power vested in it by law, the judges may declare that the order issued by the executive is in excess of the authority given to it and, accordingly, ultra vires and inoperative.
But the legislature unquestionably occupies a superior place. The primary and the most important function of the State is legislative. The executive and the judicial departments cannot function until the legislature has functioned. Law must exist before a judgment can be given or the executive takes action.
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Every executive and judicial act involves primarily an enactment made by the legislature. Gilchrist compared the relation of the legislative, executive and judicial departments to the major and minor premises and conclusion of a syllogism.
He says, “The legislative authority forms the major premises; the judiciary, the minor; and the executive, the conclusion. As the major premise is more important than the minor and conclusion, so the legislature is more important than the executive or judiciary.”
But the scales are reversed now. The all- round accepted concept of the Welfare State has blurred supremacy of the legislature. The Welfare State tends to concentrate power on the executive level and, consequently, its ascendancy over the legislative branch. This is the inescapable reality of the twentieth century.