“Subject solely to the rule of law”: an enquiry into the judicial function

Abstract

The origin of this article is the relative irrelevance of the treatment of the judiciary in the commentary of the Constitution. Although mention is made of the content of articles 117 and following of the Constitution, the focus is on the guarantees and organizational aspects of the judicial function, but not in the same way in terms of content. This is in contrast to the North American constitutional commentary, where the study of Article III of the 1787 Constitution is deep, extensive and related precisely to the core of the judicial function, unlike the most descriptive studies of the European continent, perhaps with the exception of the Italian doctrine. 

Therefore, this article responds to what its author considers to be an appreciable insufficiency in what refers to the definition of the function of judging, and therefore, in a certain way, aims to add to the conventional treatment with a specific reference to the content of the judgment of the judicial resolution, or, better yet, how that moment is reached, by what means and with what limits. And in a second but no less relevant place, it also raises the question of the judicial function in a context of the democratic State subject to the Rule of Law, an aspect which in turn raises a very complex problem, that of the role of Parliament in relation to the aforementioned judicial function.