The Rule of the Courts

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

of the administration from the judiciary, the French revolutionaries could invoke the principle of separation of powers, finding ‘cover’ for this inter pretation in the thinking of MONTESQUIEU 26 “ 27 . The principle of separation of powers, as then understood, led to the creation of a ‘domestic judge’, to use NIGRO’s apt expression 28 , a ‘home judge’, as the administrative bodies were given the task of judging themselves. Thus, in the name of the separation of powers, what was established was a system based on the “confusion between the functions of administering and judging” (DEBBASCH / RICCI 29 ), on the promiscuity between admin istrative power and judicial power. And it was this model of administrative litigation that, through the actions of the respective bodies, developed Administrative Law. The “original sin” of Administrative Litigation, estab lished with the French Revolution, is the promiscuity between the tasks of administering and judging, since “administrative justice was born within the Administration” (DEBBASCH / RICCI) 30 . And this “original sin” of Administrative Litigation can also claim the “legacy” of MONTESQUIEU’s conception, with his thesis that the division of powers had to be understood within the framework of the State. Articles 7 of the Decree of 22 September 1789, 13 of Law 16-24 of August 1790, and Article 3 of the Constitution of 1789 prohibited the courts from interfering in the sphere of administration, stipulating that judges could not, “under penalty of forfeiture, disrupt in any way the operations 26 VASCO PEREIRA DA SILVA, “Em Busca do A. A. P.” (In Search of the A. A. P.), cit., p. 19. 27 In this sense, CHAPUS considers that, for MONTESQUIEU, “the adjudication of admin istrative disputes is (...) conceived only as going hand in hand with the act of administering and, consequently, as being included in the powers of the active administrative bodies themselves” (RENÉ CHAPUS, ‘Droit du Contentieux Administratif’, 11th ed., Montchrestien, Paris 2004, p. 42. 28 MARIO NIGRO, ‘Trasformazioni dell’ Amministrazioni e Tutela Giurisdizionale Differenziata’, in ‘Rivista di Diritto e Procedura Civile’, March 1980, No 1, pp. 20 and 21. 29 DEBBASCH / RICCI, Contentieux Administratif, 8th edition, Dalloz, Paris, 2001, p. 4. 30 DEBBASCH / RICCI, Contentieux A., cit., p. 50.

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