Introduction

When compared with the legislative and executive branches, the judiciary looks like their poor relation. The classic civil law tradition considers courts as ‘the mouth that pronounces the words of the law, mere passive beings that can moderate neither its force nor its rigour’. And even the common law tradition finds that ‘[w]hoever attentively considers the different departments of power must perceive, that in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them’. Both traditions thus see the judiciary as ‘the least dangerous branch’. This philosophy originates in the eighteenth-century view that reduced the judiciary to its adjudicatory function: courts merely decide disputes between private or public parties.

The subsequent rise of the judicial function in the nineteenth and twentieth century was the result of two constitutional victories. Courts succeeded to impose their control over the executive branch. And more importantly still, some States would allow for the constitutional review of legislation. In Marbury v. Madison, the American Supreme Court thus claimed the power to ‘un-make’ a law adopted by the legislature. It justified its annulment power as follows: ‘all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the legislature, repugnant of the constitution is void’. The judicial ‘victories’ over the executive and legislative branch reinforced the idea that a State should be governed by the ‘rule of law’, that is: a legal order that provides for judicial mechanisms to review the ‘legality’ of all governmental acts. And this idea would, in some legal orders, include the sanctioning power of the judiciary to order a State to make good a damage caused by a public ‘wrong’.