To discuss the idea of Rule of law and the constitutional division of powers, we start here from the position of one of the main political scientists of the 20th century: Noberto Bobbio. The rule of law is understood to mean a state in which public powers are regulated by norms, by laws. Society must be governed by laws, and the powers (executive, legislative and judiciary) must also be regulated by a constitution. The rule of law would be characterized by the transformation of natural rights into State laws, that is, by the constitutionalization of natural rights. According to Norberto Bobbio, “in the liberal doctrine, the rule of law means not only the subordination of public powers of any degree to the general laws of the country, a limit that is purely formal, but also subordination of laws to the material limit of the recognition of some fundamental rights considered constitutionally, and, therefore, in line with the 'inviolable' principle [...]” (BOBBIO, 1995, p. 18). In this way, the rule of law has a permanent concern (at least from a theoretical point of view) with the promotion and preservation of full citizenship, which would be constituted by civil, political and social.
Thus, the constitutional division of powers (given by the Constitution) is made between the Power Executive, Legislative and Judiciary, each with its respective role in the organization of the society. In general terms, the Executive Power is responsible for the administration of the State itself, in what concerns the government of the public machine. The Legislative Power is responsible for formulating, discussing and approving laws, which are designed according to the demands and aspirations of the society it represents. And, finally, the Judiciary Branch is responsible for judging possible conflicts, acting impartially, based on mandatory compliance with the law.
Do not stop now... There's more after the advertising ;)
The rule of law gives rise to constitutional mechanisms to prevent the abuse of power or its illegal exercise. In the words of Norberto Bobbio, such mechanisms are guarantees of the freedom of individuals, in the sense that they should not be tied to the “disobediences” of anyone who assumes power. These mechanisms are born from the interaction of these public powers (in their interdependence), and in Bobbio's view, the most important ones are: 1st - the control of Power Executive by the Legislative Power (or control of the government itself - represented by the executive power - by the assemblies of councilors, deputies, and senators); 2° – the eventual control of the parliament in the exercise of the Legislative Power by a jurisdictional court, that is, by the Judiciary Power; 3° – a relative autonomy of the local government in all its forms and in its degrees with respect to the central government; (let's think about the relationship between Municipal Government, State Government and Federal Government); 4° a magistracy independent of political power.
Thus, the Federative Republic of Brazil constitutes a rule of law and, thus, all these characteristics described above apply to the Brazilian case. However, as an invitation to reflection, it is enough to know to what extent the theoretical definitions of the roles and functions of each power placed here – mainly with regard to impartiality, control of the abuse of power and the autonomy of each one – in fact they are coherent with our political reality and government.
Paulo Silvino Ribeiro
Brazil School Collaborator
Bachelor in Social Sciences from UNICAMP - State University of Campinas
Master in Sociology from UNESP - São Paulo State University "Júlio de Mesquita Filho"
Doctoral Student in Sociology at UNICAMP - State University of Campinas
Would you like to reference this text in a school or academic work? Look:
RIBEIRO, Paulo Silvino. "The rule of law and the constitutional division of powers"; Brazil School. Available in: https://brasilescola.uol.com.br/sociologia/o-estado-direito-divisao-constitucional-dos-poderes.htm. Accessed on June 27, 2021.
