The Rule of the Courts

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

and judging” 37 . Thus, the “principle of separation of powers” of the French revolutionaries, “affirmed and defended by all, elevated to the status of liberal dogma and source of the creation of administrative justice, embodied in all (different) administrative litigation legislation, reaffirmed well beyond the liberal period to explain the peculiarities of administrative control, never existed as such. Because what was created in the name of the principle of separation between administrative and judicial authorities was not separation, but “confusion” between administrative and judicial power, what was established was a system in which the administrator was the judge and the judge was the administrator. The ‘original sin’ of administrative litigation was the creation of a ‘domestic’ or ‘home-grown’ judge 38 . Before MONTESQUIEU, a British philosopher, JOHN LOCKE presented a slightly different version of the separation of powers. For him, the powers (“legislative, executive and federative”) were autonomous and independent, without being integrated into any model of the State 39 . This did not mean, however, that the results did not lead to somewhat similar realities, as LOCKE made no mention of the possibility of control of the legislative power by judges, nor did he refer to the existence of any “excep tions” to the control of the Administration by the courts, whether this was carried out entirely by the “common courts” (as was the case in the 18th and 19th centuries) or as is currently the case with the emergence of the Administrative Court as a specialised court for the Administration, albeit only at first instance. With regard to public administration, at the turn of the 19th century, DICEY stated that the United Kingdom did not have administrative law, just as administrative entities did not have powers of self-regulation over their decisions, and there were no administrative courts. Regardless of the debate as to whether DICEY’s words were still accurate when they were 37 VASCO PEREIRA DA SILVA, ‘Para um Contencioso A. dos P. – E. de uma T. S. do R. D. de A.’, cit., p. 19. 38 VASCO PEREIRA DA SILVA, ‘Em Busca do A. A. P.’ [In Search of A. A. P.], cit., p. 21. 39 JOHN LOCKE, “Two Treatises on Government” (translation), Martins Fontes, São Paulo, 1998, pp. 514-536.

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