In the triad of powers identified by Montesquieu, justice occupies a singular place. If the executive embodies the strength of the State and the legislative the general will, the judiciary represents reason and equity. Its role goes far beyond the simple resolution of disputes to establish itself as the ultimate guarantor of individual liberties and the constitution. This institution, often unknown to the general public, nevertheless constitutes the essential rampart against arbitrariness and tyranny. Understanding justice requires grasping its philosophical foundations, complex architecture, and contemporary challenges in a world where law increasingly invades the social and political sphere.
The notion of justice as a distinct institution gradually emerges from the dawn of time. In archaic societies, justice merges with political and religious power. The sovereign is judge, and his verdict participates in his divine authority. The first major rupture appears in ancient Greece, where Plato in "The Republic" and Aristotle in "Nicomachean Ethics" theorize justice as a cardinal virtue and foundation of the city. Rome brings a decisive contribution with the development of Roman law, a rational and technical legal system that gradually separates the judicial function from the imperial administration.
The Middle Ages sees a slow differentiation of functions. Under the Carolingians, the "missi dominici" embody this itinerant justice in the name of the emperor. The renaissance of Roman law in the 12th century favors the emergence of a learned justice, distinct from political power. In England, the Magna Carta of 1215 establishes the fundamental principle that no one, not even the king, is above the laws. It is however the slow emergence of the Parliaments under the Ancien Régime in France that constitutes a crucial step towards judicial independence, even if this remains relative.
The true revolution occurs with the Enlightenment. Montesquieu, in "The Spirit of the Laws" (1748), theorizes the separation of powers and identifies justice as a power in its own right. He writes: "There is no liberty if the power of judging is not separated from the legislative power and the executive." This conception will profoundly influence the American and French revolutions. The American Constitution of 1787 establishes an independent Supreme Court, while the Declaration of the Rights of Man and of the Citizen of 1789 proclaims in its article 16: "Any society in which the guarantee of rights is not assured, nor the separation of powers determined, has no Constitution."
Two great models structure judicial organization in the world, each carrying a distinct philosophy:
The common law model (customary law), born in England and exported to the Anglo-Saxon world, is characterized by the preeminence of case law. In this system, it is the decisions of judges that make the law, according to the principle of "stare decisis" (respect for precedents). The trial is adversarial and contradictory, with judges playing the role of arbitrators between the parties.
The civil law model (Romano-Germanic law), dominant in continental Europe, privileges written law as the main source of law. The judge's mission is to apply the law, not to create it. The trial is inquisitorial, with the judge playing an active role in the search for truth. This model, inherited from the Napoleonic Code, insists on the codification and systematization of law.
Between these two poles, hybrid systems have emerged, such as in China where indigenous legal traditions and Western influences coexist, or in Scandinavian countries that have developed original models combining efficiency and proximity.
Several constitutional principles guarantee the independence and impartiality of justice in modern democracies:
The principle of independence is manifested through the irremovability of sitting magistrates, who cannot be transferred or dismissed arbitrarily. This protective status aims to shield them from political pressures.
The principle of impartiality requires that the judge have no personal interest in the case he is handling and that he be psychologically detached. This principle justifies the rules of recusal and the separation of prosecution and judgment functions.
The principle of double degree of jurisdiction allows a reexamination of the case by a higher court, thus guaranteeing better legal security.
The principle of publicity of hearings ensures the transparency of justice and allows its control by public opinion, even if arrangements exist to protect the privacy of individuals or public order.
Judicial organization generally follows a pyramidal structure, with first-instance courts at the base and a supreme court at the top.
First-instance courts (judicial court, commercial court, labor court) initially handle cases. Their competence varies according to the nature of the dispute (civil, commercial, social) and its importance.
Courts of appeal examine decisions rendered in first instance, both on facts and law. They constitute the ordinary level of appeal.
The Court of Cassation (or Supreme Court in some systems) does not judge the case on the merits but verifies the correct application of the law by the lower courts. Its unifying role of case law makes it the cornerstone of the system.
The growing complexity of modern societies has led to a specialization of courts:
The judicial order deals with disputes between private individuals (civil law) and criminal offenses. It includes judicial courts, assize courts, and juvenile courts.
The administrative order judges disputes opposing citizens to the administration. The Council of State is its supreme court and plays a crucial role in controlling public action.
Financial courts (Courts of Audit) control the regularity of public finances.
Constitutional courts (Constitutional Council in France, Constitutional Court in Germany) verify the conformity of laws with the Constitution. Their rise in power characterizes the contemporary evolution of democracies.
Justice mobilizes a diversity of professionals with complementary roles:
Magistrates are divided between the bench (judges proper) and the public prosecutor's office (prosecutors, attorneys general). The status and independence of these two categories differ fundamentally.
Lawyers ensure the defense of litigants and contribute to the adversarial process. Professional secrecy and independence are the pillars of their ethics.
Judicial officers (bailiffs, notaries, experts) participate in the proper functioning of the institution.
The popular jury, present notably in assize courts, embodies the participation of citizens in the function of judging.
Justice is undergoing a multifaceted crisis in most democracies:
The crisis of slowness: the congestion of courts and trial delays compromise the effectiveness of rights. In France, the average time to obtain a civil hearing often exceeds eighteen months.
The crisis of means: chronic underfunding affects working conditions and access to law. The rate of justice expenditure in GDP remains below 0.2% in France, compared to 0.4% in Germany.
The crisis of confidence: according to opinion surveys, only a minority of citizens believe that justice functions well. This distrust fuels populisms and weakens the legitimacy of the institution.
Justice must adapt to new realities:
International justice with the International Criminal Court and specialized tribunals (ICTY, ICTR) represents a major advance but encounters political limits.
Transitional justice in countries emerging from conflicts or dictatorships poses particular challenges of national reconciliation.
Predictive justice with artificial intelligence opens perspectives but raises fundamental ethical questions about the algorithmization of judgment.
Environmental justice emerges in the face of ecological urgency, with the creation of specialized courts and the recognition of new rights.
Threats to judicial independence are multiplying:
Political pressures on the public prosecutor's office compromise equality before justice. The question of framing government instructions to prosecutors remains burning.
The judicialization of political life fuels a discourse of distrust towards "the government of judges."
Attacks on the economic independence of magistrates, with the stagnation of remuneration, threaten the attractiveness of the profession.
The justice of the future will have to reconcile several contradictory imperatives: efficiency and quality of judgment, independence and responsibility, tradition and innovation. The necessary reforms touch on organization (de-specialization, de-judicialization), means (massive investment), and governance (reform of the Superior Council of the Judiciary).
Justice remains more than ever the pillar of the rule of law and the guarantee of liberties. In an uncertain world, it represents this ideal of reason and equity that allows society to overcome its conflicts without resorting to violence. Its strengthening is inseparable from democratic vitality. As Dean Carbonnier recalled, "justice is the institution that allows a society to live in peace with itself." This fundamental vocation, in its nobility and difficulty, justifies all efforts to preserve and improve this essential institution.