The Rule of the Courts

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

judges as “the mouths that pronounce the words of the law”, entities devoid of any power, since “not being linked to any state, they are invisible or null” 17 . This is because a careful analysis of the situation of justice in the French Ancien Régime should rather have led to the conclusion that judicial power was identified “with the nobility” and with the exercise of a “politically committed” activity, or even “ideological, in the sense of an estate’s claim to active participation in the concentrated power of the absolute king” (GARCÍA DE ENTERRÍA / FERNÁNDEZ) 18 . In denying the relevance of judicial power, Montesquieu was not speaking as a “scientist” but as a “politician”, since, in the case of “Monsieur Charles de Secondat, Baron de Montesquieu, himself president of the Parliament of Bordeaux”, “I dare to suspect that his considerations, which were anything but ‘naive’, about the neutral character of the power of judges (which would be the only one disconnected from any social class and, therefore, politically ‘invisible and null’) 19 , corresponded to a strategic intention to devalue the importance of judicial power, aimed at making the actions of judges more effective in this struggle against royal absolutism” 20 . As president of the Court of Bordeaux, MONTESQUIEU was well aware of the strength and power of the courts in the final phase of the Ancien Régime, when they confronted the absolutist power of Louis XIV, demanding the recording of the monarchs’ decisions (which would later be the seed of constitutional justice). Montesquieu, in stating that the power of the courts was “null” 21 , did so to prevent it from being neutralised. It was an “intellectual political trick” designed to preserve the power of judges, not a scientific observation. This was even more evident because MONTESQUIEU (President of the Court of Bordeaux, it should be noted once again) was aware of the 17 MONTESQUIEU, “De L’esprit des L.”, cit., p. 398. 18 EDUARDO GARCÍA DE ENTERRÍA / TOMÁS-RÁMON FERNÁNDEZ, “Curso de Derecho Administrativo” (Course on Administrative Law), vol. I, 6th ed., Civitas, Madrid, 1993, p. 511. 19 MONTESQUIEU, De L’Esprit des L., cit., p. 398. 20 VASCO PEREIRA DA SILVA, Em Busca do A. A. P., cit., pp. 22 and 23. 21 MONTESQUIEU, De L’Esprit des L., p. 401.

20