The Rule of the Courts

Vasco Pereira da Silva

C OURTS AND R ULE OF L AW : P AST , P RESENT , AND F UTURE

Vasco Pereira da Silva

The courts play a decisive role in the framework of the rule of law and the protection of fundamental rights. However, this very important role of the judiciary in state and constitutional theory is not always accompanied by the corresponding doctrinal recognition. In my opinion, this is a well known psychoanalytical problem, namely the separation between the ‘body’ and the ‘idea of the body’, i.e. the divergence between reality and its recog nition, or in this case, the lack of (full) recognition of the role of the courts in defending the rule of law. To understand this better, we need to engage in cultural psychoanalysis and analyse how the separation of powers was theorised in the context of political liberalism. The separation of powers can be seen in two different ways, depending on whether it is linked to the state, as in France, or does not require it, as in England, where the transition from medieval logic to political liberalism took place almost continuously and without disruption (apart from Cromwell’s “episodic” revolution), and therefore did not require the emergence of the idea of the state. Thus, in the logic of the French Revolution, what is at stake is the creation of a new model of state, and the separation of powers is seen as an essential element of this. On the other hand, it is curious to note how things turned out differently in England, which was, after all, the birthplace of political liberalism. In England, the idea of separation meant considering each of the powers as autonomous and independent, mutually limiting each other, but without this meaning their integration into any higher entity. It

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