The principle of democracy and people's power in judicial law

Abstract

In the modern era, only a political regime based on popular sovereignty, and the ultimate goal of which is the observance of the basic rights of the human person, can be considered democratic, as democratic. The sovereignty of the people, which is not aimed at the realization of human rights, necessarily leads to the free will of the majority. Full respect for human rights, in turn, is unattainable when the supreme political power does not belong to the people. The judiciary, as an organ of a democratic state, must be structured in accordance with both of these requirements. However, it should be noted that, unlike other state authorities, the judiciary has a notable feature. Although it is by definition the main guarantee of full respect for human rights, in most countries judges, with rare exceptions, are not elected by popular vote. In fact, the factor which unites the judicial power with the spirit of democracy (in the sense Montesquieu assigned to the word) is the outstanding attribute, the only one capable of ensuring the absence of suffrage: it is that public prestige, based on a wide moral respect, which in Roman civilization was called auctoriai. It is the legitimacy of respect and trust that causes people to judge. However, this special characteristic of judges, in the conditions of democracy, is essentially based on the independence and responsibility with which the state body as a whole, and the individual considered public agents, perform the political functions that the constitution, as the original manifestation of the will of the sovereign people, entrusts to them.
 Therefore, if we want to check how democratic the judiciary is, we must analyze its organization and its functioning, according to the fundamental requirements of independence. It is about the fact that the judiciary is generally independent when it is not subject to other powers of the state. In turn, judges are said to be independent when there is no hierarchical subordination between them, despite the multiplicity of instances and degrees of jurisdiction.