The Rule of the Courts

Vasco Pereira da Silva

important role played by the courts (“parliaments”) in the final phase of the Ancien Régime, which had played an important role in the struggle against the concentration of royal power. The main weapons they used in this “battle” were the institutions of the right of registration (“d’enregis trement”), a kind of veto by the court on royal decisions, and censures (“remontrances”), an instrument for controlling administrative decisions of very different scope (LEBRETON) 22 » 23 . These two instruments: the “register” and the “censures” applicable to the actions of the absolute monarch, were a kind of “avant la lettre” constitutional control of both the legislative and executive powers. Such was the “political” and “ 24 “importance of “parliaments” during this period that not only did people begin to talk about the existence of a true “government of judges” (“gouvernement des juges”), but also, even today, this expression is often used – always in French – to characterise the intervening role of the judiciary, in homage to its previous historical prominence. By “forgetting” the importance of these two legal instruments, MONTESQUIEU is seeking to downplay the importance of the judiciary so that it can continue to exist in the future, but in doing so this will also lead to a limitation of the judges’ actions, by removing the possibility of constitutional review, which was in its infancy. MONTESQUIEU also considers that the judiciary is “that through which the State ‘punishes crimes or judges disputes between individuals’ 25 ”, which meant that, for this author, the resolution of administrative disputes did not fall within the remit of the courts. Therefore, “by removing control 22 GILLES LEBRETON, “L’Origine des Cas d’Ouverture du Recours pour Excès de Pouvoir d’après les Remontrances des Parlements au XVIIIème. Siècle,” in “Revue de Droit Public et de la Science Politique en France et à l’Étranger,” no. 6, 1986, pp. 1066-1067. See also GILLES LEBRETON, ‘Droit Administratif Général’, 10th ed., 2019, pp. 4-16, 18 - 23. 23 VASCO PEREIRA DA SILVA, ‘Em Busca do A. A. P.’ [In Search of the A. A. P.], cit., pp. 22 and 23. 24 As ALEXIS DE TOCQUEVILLE writes, ‘the struggle of Parliaments against royal power (...) is almost always in the field of politics and not in that of administration’ (TOCQUEVILLE, ‘L’Ancien Régime et la Révolution’, Gallimard, Paris, 1967, p. 130). 25 MONTESQUIEU, De L’ Esprit des L., cit. p. 397.

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