The Existence of a Judiciary Power as a Misguided Concept

Résumé 0

The judiciary power is a concept presented as a result of the implementation of the separation of powers in the jurisprudence of the Constitutional Council. Yet, this ‘implementation’ is only the result of an interpretation by this jurisprudence, based on the authors’ preferences regarding the best way to organize powers. The criticism of this deceptively descriptive characteristic allows for the development of a non normative analysis of judicial power, whose existence has never been in dispute. Following the various interpretations of positive law, this paper probes two domains: the definition of the judicial activity and its normative reach, and the judicial systems that exercise this activity. At stake in each of these domains is the division, the sharing, and the mastering of this ‘power’, notably to the benefit of governmental power.