The Governmental System of Peru

By Graham H. Stuart; Carnegie Institution of Washington | Go to book overview

CHAPTER VI. THE JUDICIARY AND THE CODES.

Montesquieu in his L'Esprit des Lois. gave particular emphasis to the problem of political liberty, and attempted to formulate a type of governmental organization which would achieve it. He felt that power always tended to be abused, and therefore constitutional checks must be found. Having participated personally in a conflict between the judiciary and the king in France, he sought elsewhere for a political system which might be adapted to his purposes. He thought he had found such a type in the English system, and proceeded to make his famous classification of the powers of government. The three powers, executive, legislative, and judicial, he argued, must each be checked by a different organ, and only so far as this obtains can a constitution be regarded as insuring political liberty. The theory of the separation of the powers, perhaps, had greater influence in the New World than in the Old, and was adopted as a sort of a corner- stone of safety by all the American states in their constitutional structures. The constitution of Peru, like that of Brazil, goes one step further than the constitution of the United States, in that not only is the separation made, but it is especially provided that there shall be no overstepping of the boundaries prescribed.

However excellent the idea of separation may be in theory, it is practically impossible to make it work out in practice. In the English parliamentary system of to-day the idea is entirely abandoned. In the United States we have the president controlling the legislative power by his veto and his messages, and the legislative power interfering with the president's appointive and treaty-making power. The president appoints the judges, and the congress prescribes their number and fixes their salaries. Finally, the courts have assumed the right of declaring the laws of congress which violate the constitution as null and void. However, as a legal doctrine the theory still holds and is applied by the courts, and they have been very careful not to assume any power which is not clearly judicial in nature, nor have they permitted the delegation of legislative powers to executive officers. In fact, Professor Burgess has declared that the feature, par excellence, of the American governmental system is the constitutional, independent, unpolitical judiciary, and the supremacy of the judiciary over other departments, in all cases where private rights are concerned.

It has already been shown that in the Peruvian government, just as in the government of the United States, the executive and legis

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