Since the advent of the liberal State people are no longer at the mercy of the sovereign;
they have become citizens instead of subjects and have acquired inalienable and inviolable
rights vis-à-vis the King. New organs have been set up, such as assemblies, ministers and
courts, so that power can check power.

The very existence of various bodies instead of a single organ, the sovereign, has given
rise to the need of a constitution, defining the different functions of the powers and
governing their relationship. In addition, a system of guarantees should now ensure the
protection of rights and freedoms from abuses of the political power.

The basic idea is that political bodies should have a limited power over citizens and that
freedom can be encroached upon only to protect overriding public interests. The first
requirement of the rule of law is that such limitations on individual rights be clearly defined
in scope by the law maker.

In this view, the three fundamental functions should be carried out by different organs or
groups of organs (powers) so that none of them can prevail on another or on private
individuals. This principle, known as the principle of separation of powers, prescribes that
the legislative should set the rules, the executive should carry out governmental activities
and the judiciary should apply the rules in concrete cases, solving controversies and
imposing sanctions when the law is violated or crimes are committed.

It is fair to say that in modern democracies the principle is not strictly respected; in some
cases, governments issue regulations, parliaments have investigatory powers, judges have
administrative tasks. It is also true that governmental activities are today checked and
balanced also through the dialectic between majority and minorities in parliament, and the
action of a free press and a concerned civil society.

Nonetheless, the principle of the separation of powers still has a major role to play in the
protection of individual rights and the respect of the rule of law. The independence of the
judiciary from the government, in particular, is of fundamental importance.

A developed market economy cannot work with an uncertain legal framework, or when
its players do not play by the rules. An effective judicial system is necessary to ensure the
proper enforcement of law and contracts. The judiciary, in particular, should be able to
impose respect of the law to all subjects, including the other State bodies. Judges should
be guided only by the law. The judicial branch should be exempt from strong executive
pressure and protected from unjustified or arbitrary dismissals or transfers even if, and
especially when, it renders decisions not in accordance with the views of the government.

2

This independence cannot be absolute. Judges have to follow the political guidelines set in
the constitution and in the laws they have to apply. The political power cannot, however,
intervene in specific cases under judgement and could not, for instance, use the judiciary
to persecute a determined citizen or group of citizens. On the contrary, an independent
judicial branch would be able to grant legal recourse and protection of individual rights
even against the government.

The independence of the judiciary from the executive can be granted in various ways
normally corresponding to different organizational models of the judiciary and, in
particular, different recruitment processes. These can be roughly divided in two systems:
the system of political-professional appointment and the system of bureaucratic selection.