The Rule of the Courts

Vasco Pereira da Silva

16-24 August 1790, decree of 16 Frutidor, year III), the separation of judicial and administrative functions and the prohibition on judges “from ‘disrupting, in any way whatsoever, the operations of administrative bodies, from summoning administrators because of their functions, from hearing the acts of the Administration, whatever they may be’” (DELVOLVÉ). 13 Moreover, this “French conception” of the separation of powers is not unrelated to the influence of MONTESQUIEU who, based on his analysis of the British constitutional experience – which had also been theorised by LOCKE – analysed it with “continental eyes”, leading to a kind of “game of mirrors”, in which the reflection of the image, from the British experience to the work of MONTESQUIEU and from the work of MONTESQUIEU to the American Revolution, first, and then the French Revolution, then, leads to its progressive deformation and departure from the original model 14 . Let us take a closer look at Montesquieu’s theorisation of the separation of powers in his famous “De L’Esprit des Lois”, which begins by integrating the three public powers (legislative, executive and judicial) within the state, according to a very French logic 15 . At the same time, he also adopted a sociological view of this doctrine, considering that each power corresponded to a social class: legislative power to the bourgeoisie and executive power to the monarch and the aristocratic class. Thus, a “compromise” came into being between the bourgeois class (the “new ruling class”, to use traditional Marxist jargon), which retained legislative power in Parliament, elected by census suffrage, and the aristocratic class (and the monarch), which came from the Old Regime but was to remain integrated into the political system, to whom executive power was attributed 16 . It should be noted that, curiously, in stating this, MONTESQUIEU is “forgetting” to attribute judicial power to any social class, characterising 13 PIERRE DELVOLVÉ, Le Droit A., cit., p. 3. 14 VASCO PEREIRA DA SILVA, ‘Em Busca do A. A. P.’ [In Search of A. A. P.], cit., p. 17. 15 MONTESQUIEU, De L’ Esprit des Lois, in MONTESQUIEU, Oeuvres Complètes, vol. 2, p. 396. 16 MONTESQUIEU, ‘De L’esprit des L.’, cit. pp. 396-407.

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