The Rule of the Courts

Courts and Rule of Law: Past, Present, and Future

is this reference, or lack thereof, to the state that explains ‘how the common root of political liberalism – the English political-constitutional experience – will give rise to two radically different historical experiences, involving different constitutional (material vs. formal constitution) and administrative (common law, hetero-enforcement of public decisions and common courts vs. administrative law, self-enforcement of public decisions and administrative courts) systems 1 . The ‘continental logic’ therefore derives from the concept of the state, ‘conceived by Machiavelli to solve the political problem of the dispersion of power, typical of the Middle Ages, through the creation of an entity that concentrated and unified all the powers of society in itself, and which was embodied in the person of the prince 2/3 . This state, in the image and likeness of the story of Robinson Crusoe, “presents two distinct moments, more logical than chronological, namely: upon arriving on the island, Robinson begins by fortifying himself, gathering all the weapons saved from the ship; only later, when he felt sufficiently secure, did he set out to explore the island, establishing relationships of freedom with things and people (since he eventually found another man, ‘Friday’)” 4 . Similarly, “in the ‘history’ of the state, there is a first moment of maximum concentration and unification of power, which corresponds to the theorisation of the absolute or dictatorial state (in this sense, see the conceptions of authors as diverse as MACHIAVELLI, BODIN, HOBBES and ROUSSEAU); and a second moment, in which the State already feels sufficiently “strong” to go in search of Man, to establish a political organisation that guarantees the freedom and individual rights of citizens, through the technical expedient 1 VASCO PEREIRA DA SILVA, “Em Busca do Ato Administrativo Perdido” (In Search of the Lost Administrative Act), Almedina, Coimbra, 1996, p. 16. See also VASCO PEREIRA SILVA, “Administrative Litigation on the Couch of Psychoanalysis – Essay on Actions in the New Administrative Process,” 2nd edition, Almedina, Coimbra, 2009, pp. 9-168. 2 NICOLAU MAQUIAVEL, The Prince, translation, Europa-América, 1972, p. 13. 3 VASCO PEREIRA DA SILVA, “In Search of the A. A. P.,” cit., p. 13. 4 VASCO PEREIRA DA SILVA, “Structures of Society: Freedom and Solidarity,” in “Gaudium et Spes,” Rei dos Livros, Lisbon, 1988, p. 127.

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