The Rule of the Courts

The algorithm that pronounces the words of the law

These limitations on the courts implied, from another perspective, less effort at legitimation because, in a context lacking pluralism, their authority depended only on the correspondence of the decision with the parliamentary law, the sole source of legitimacy for the system. Legitimation would rest upon the law, but it would also be the law that would suffer the main erosion, which would manifest itself virulently from the beginning of the 20th century with the crisis of parliamentarism and the legal State. A crisis that would lead after the Second World War to the Constitutional State and to a new role for judges, very different from the previous one, in relation to the protection of rights and the guarantee of the rule of law. Despite the civilizational advance it represented through the control of power and the guarantee of rights, the French Revolution was not initially a democratic revolution because it was based on census suffrage. G. Zagrebelsky defines this period as oligarchic constitutionalism 21 . Certainly, during the 19th century, there were electoral processes in some countries in which less than 1% of the population participated 22 . This constitutionalism did not embrace social and political pluralism, and this situation could only the latter’s constant interference in political matters and its persistent obstruction of legislative reforms. The judges’ social background (noblesse de robe) made them more aligned with the interests of the nobility than with those of the bourgeoisie from which they came. The référé législatif was not the revolutionaries’ only protection against court interference in legislative work: the right of remontrance and the right to refuse registration, which had been so effective in the judges’ struggle against royal power, were abolished. The goal was none other than to make the law the sole source of law. Ibidem, cf. pp. 1-5, 9 and seq. 21 Cf. G. Zagrebelsky, Manuale di Diritto costituzionale. I. Il sistema delle fonti del diritto , UTET, Torino, 1988, pp. IX-X. 22 The question was somewhat different in the United States (albeit among the “free men”). It’s important to remember that in 1770 the total population of the colonies was two million of whom three-quarters worked in agriculture and two-thirds were landowners. On that basis “all of the State constitutions were grounded on the principle of popular sovereignty and, in most cases, extended suffrage to all white males who owned at least a small amount of property”. Cf. D. A. Moss, Democracy: a case study , The Belknap Press of Harvard University Press, Cambridge, Massachusetts, 2017, pp. 17 & 20. 3. The judiciary in the constitutional State

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