The Rule of the Courts

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

by ALEXIS DE TOCQUEVILLE 10 . The liberal state, as it was to be imple mented on the European continent, was essentially the result of a compromise between liberal principles, in terms of the organisation of political power, and authoritarian principles, in terms of the functioning and control of the administration. This was a ‘practical’ compromise, which was not contradictory to the ‘theoretical’ matrix of the liberal state model (which, as we have seen, had both a democratic/authoritarian matrix and a liberal matrix), and which would emerge in all its fullness in the understanding of public admin istration 11 . The “theoretical compromise” present in the conception of the liberal democratic and state was now being realised on the European continent through a “practical compromise” in the organisation of state powers. The notion of the State also functions as a kind of “ideological cement” for a certain “French vision” of administration, which originated in the Ancien Régime and remained, in a reformulated form, after the Revolution. In fact, “the Ancien Régime had an administrative law, where concepts such as forms of exercising power and public service already had their place: we find manifestations of them in feudal institutions, then in bodies such as towns and communities, in the king’s councils and intendants, in police functions (including those relating to the economy), in aid to inhabitants, in public works (roads, canals) and urban planning (which facilitated the king’s rights over the territory), in the prohibition of Parliaments from hearing cases relating to the State, its administration and its government (Edict of Saint-Germain, 1641), and in the development of administrative litigation entrusted to specialised jurisdictions” (DELVOLVÉ) 12 . Hence, “the Revolution, if it destroyed everything (“si elle a tout renversé”), also began to rebuild everything, establishing new administrative structures, affirming the rule of law, confirming through texts still in force (law of 10 ALEXIS DE TOCQUEVILLE, ‘l’Ancien Régime et la Révolution’, Gallimard, Paris, 1967, maxime pp. 85-228. 11 VASCO PEREIRA DA SILVA, “Em Busca do A. A. P.” (In Search of A. A. P.), cit., p. 16. 12 PIERRE DELVOLVÉ, Le Droit Administratif, 3rd ed., Dalloz, Paris, pp. 2-3.

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