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FOCUS - Reflective Judiciary N. 5 - 09/11/2018

 Reflective Judiciary: more an illusion than a temptation

Any discourse about the Judiciary and its role in the contemporary comparative constitutional debate cannot do without a reference to the Separation of Powers Theory, where the idea itself of a Judiciary as an autonomous function, separated from the Administration or the Executive, was elaborated for the first time. According to medieval political theory, the two activities traditionally performed by the King were Gubernaculum and Juridictio: the latter – consisting in the definition of a legal right - was a mixture between what we now conceive as the two separate regulatory and judicial functions, collectively considered, as opposed to the Gubernaculum or Imperium. The main difference between the two is that Jurisdictio was limited by principles of reason, while Gubernaculm or Imperium was not, since it was up to the discretion of the King. It was Montesquieu who conceived the distinction between administrative and judicial activities and thus fostered the need to entrust two different bodies with those two different activities, consequently overcoming the unity of the Jurisdictio within the King’s powers. It is interesting to note that in Book XI, Chapter VI of the Esprit des Lois, where how Constitutions can establish political liberty and the principle of separation of powers are described, Montesquieu suggests how to render the Judiciary an “invisible power”. In order to obtain such invisibility, judicial decisions must be taken by lay-men and not by professional judges… (continues)


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