5:Legislative Powers of the Judiciary and of Certain Groups, (a) The reason for the separation of the executive and judicial powers was appreciated in the period following the Revolution. The principle solidified the new political regime, and was an effectual guaranty of political liberty. When Montesquieu wrote, the sovereign holding the executive power sought to extend it wherever he could, to its abuse. To-day, within a democracy, republican in form, such an abuse is no longer to be feared. On the other hand, if the judicial power were allowed to legislate there would be a true cooperation between public functions, not an absorption of one by another.
It is worthy of remark that in Imperial Germany, jurists interested in public law have long been almost unanimous in repudiating the principle of the separation of these functions.53 In France, on the contrary, it retains its old authority, and most authors accept the principle without discussion,54 even reproducing Mon-
53 Laband, "Le Droit public de l'empire allemand" (French trans, by Gandilhon and Lacuire, Paris, 1901), vol. ii, p. 268, note 2; contra Mayer, "Le Droit administratif allemand" (French ed., Paris, 1903), vol. i, sec. ii, Sec. 6, pp. 83-101.
54 Rossi, "Droit constitutional," vol. iv, lesson 93; Jules Simon, "La Liberte politique," chap, iii, no. 5; Aucoc, "Introduction a l'etude du droit administratif" (Paris, 1865), pp. 24-27; "Rapport sur le contesquieu's arguments.55 They recognize, however, that the three constituent powers should not be absolutely independent of one another, but that merely their functions should be kept distinct.
If formerly legislative and judicial functions might be absolutely separated, it is so no longer. The judiciary, like the legislative, should have the power to regulate legal relationships; courts ought to be able to issue rules similar to the "general orders"56 of the early parliaments of France. This function would naturally devolve upon the supreme court of appeal, whose purpose so far is merely to insure uniformity of interpretation by the various courts.
The system in no wise tends to make judicial opinion, especially that of the supreme court of appeal, into a source of law. In that case judges would remain bound by the text of the law, though in their interpretations they would adjust it by more or less indirect means to practical needs. Our system, on the contrary, vests a sovereign right in the judge to lay down a binding rule of law without reference to the interpretation of any statute. Thus legislation and judicial opinion will travel in harmony, and never again be irreconcilable, since the court, when it deems it opportune to introduce a reform, will do so frankly by law.
This solution seems the more imperative on examining actual political conditions. The parliamentary system cours relatif a la separation des pouvoirs, from the report of the "Aca-demie des Sciences Morales et Politiques" (Paris, 1879) ; Saint-Girons, "Essai sur la separation des pouvoirs"; Fuzier-Herman, "La Separation des pouvoirs" (Paris, 1880); Ducrocq, "Cours de droit administratif" (7th ed. 1897), vol. i, nos. 7-54; Berthelemy, "Traite elementaire de droit administratif" (1902), vol. i, Sec. 1; Jacquelin, "La Juridiction administrative" (Paris, 1891), "Introduction" Sec. Sec. 2-4; Roguin, "Observations sur la codification des lois civiles," pp. 77-8.
55 Contra and adopting other reasoning, Vareilles-Sommitres, "Les principes fondamentaux du droit," pp. 228-229.
56 ["Arrets de reglement." Cf. Brissaud, "History of French Public Law,' p. 445.-TRANSL.] tends to make the lawmaking body govern rather than legislate; the legislative trespasses, consequently, upon the functions reserved to the executive. Why should not the judiciary, then, in a reasonable measure, be a substitute for the legislature?
It will be objected that the same power cannot both make and apply the law. But why not? May it not rather be true that the lawmaking power has a very special mission to apply it? When the legislature, acting as a constituent power, to-day creates a constitution, does it not submit to that very same constitution when acting as legislator? Does not the executive head in the same way issue orders which he and his representatives will be called upon to apply? Since, then, in the case of the constitution and of executive orders, the power calling them into existence is the same as that which afterwards applies them, why may not the same be also true in the case of statutory law? If the judiciary had power to legislate upon questions of private law, the principal disadvantages inherent in codification would be obviated.
What would be the limits of this authority? That would be for constitutional or statutory law to indicate. However, we may here propose a rule in this regard. When the legislator regulates relationships of private law, his sole aim should be to create broad and flexible general principles, leaving to the courts the work of filling out the law traced by the legislator; the legislator should be content, therefore-and it would amply suffice-to indicate the basic principles upon which to establish juridical relationships. To the judicial power would then fall the task of regulating these in a more or less exact and concrete manner according as the needs of society demanded.
(b) As to the legislative power to be vested in certain social groups, the law should determine the groups and the nature of their powers. It would pronounce rules of a general nature to govern specially designated groups, and these would fix the details of their application. They should even be given power to settle the conflicts arising out of their regulation. In conferring upon them the power to legislate, the law must make sure that the rules enacted by them shall be brought, through broad publicity, to the knowledge of all interested parties.
There is nothing novel in this idea. The tendency is already evident in certain groups who are demanding the legislative privilege, and certain labor organizations have already acquired it in a few countries.57