The Normative Function of the Judiciary

The breadth of the normative powers of the judicial branch is an issue that questions the very nature of power since the rise of the modern State. Building on the gubernaculum — jurisdictio dichotomy, the foundations of the ‘juridical’ as a concept may be found in two elements: will, which stems from sovereign imperium, and ratio-morality, according to which law emanates from arguments grounded in common ethics and shared rationality. In Euro-Western orders, whereas the latter element prevailed in the Anglo-Saxon concept of rule of law, the Loi parlamentaire was dominant as ‘the’ source of law in continental systems, chief among which France. Contemporary constitutions enshrine a supra-legislative constitutionality that acts as a yardstick for legislative activity and reveals the relationship between domestic rigidity and supranational openness, which paves the way for a multilevel protection of rights. Yet, when it comes to protecting rights, the political and the jurisdictional dimensions should not be decoupled; to the contrary, a balance between the two must be safeguarded. Particularly, judicial law-making must be kept far from turning the judge into an ex post legislator of individual cases. This would undermine legal certainty to such an extent as to threaten, perhaps, an ominous regression of law towards pre-modern conditions.