Three pillars of the democratic state

Thanks to the Baron de Montesquieu and his book, ‘De l’esprit des loix,’ which dates from the beginning of the eighteenth century, every civilised country today still recognises the idea of the separation of powers in an enlightened democratic state. This idea states that legislation, administration and jurisprudence are mutual controls, which should prevent one usurping the others and evolving in the state without restraint.

The legal norms, created by the legislative body – the chosen representatives of the people – are put into practice by the executive authority – the government and its ministers. They in turn, regarding their compliance with the judiciary – the courts – should be controlled using the stages of appeal in court. In Austria the parliament determines the laws to which the authorities apply their standards. The effects of these laws are monitored by the courts.

It is a valuable commodity of the modern state that not only the rights of individual citizens regarding others and the government itself are enforceable in court. Reciprocally, protection against unjustifiable third party claims and those of authorities are also enforceable – if necessary, using means of coercion to the point of imprisonment – without needing to resort to the rule of force.

In this system the constitutional significance of the lawyer can barely be overvalued: His unique and indispensable function includes his knowledge of laws and he uses these in order to be able to offer advice. It also, however, includes his interpretation (motivated by vested interest) of the way to implement the protection of the individual. It furthermore pertains to the continuing development of these laws and the ability to adapt quickly to changing circumstances.



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