MAGISTRATE. - Magistratus, from magister, etymologically means a head, a superior. In ordinary language the concept of magistracy was customarily confused with that of public office, entrusted to specific persons by election or by lot. Among the Romans, in the republican period, the magistrates were the consuls, censors, praetors, aediles, etc., but the institution of jurisdiction, which holds such importance in the modern legal order for the concept of magistrate, was unknown at that time: it took shape in the era of the Empire.
In the present political-administrative order the term magistrate has two meanings: a) that of representative of the authority of the State, which is in itself continuous, such as the prefect, the mayor, etc.; b) that of one exercising the office of judge
(judge). It is in this second sense that it is spoken of, for example, in the new Italian Constitution (art. 101 ff.). For the m. in this sense v. GIUDICE. Here the m. is considered according to the broadest meaning of the term, inasmuch as it includes not only the judging m., but every citizen who participates in various degrees in sovereignty, that is, who is invested with a civil or military, legislative or executive, judicial or coercive power, which he exercises in the public interest (v. also PUBBLICO UFFICIALE).
The competences and functions of the m. may vary according to constitutions and forms of government. However, certain fundamental obligations must be common to all and constant. 1) First of all, it is necessary that whoever is established in authority uphold the majesty of the laws with the wisdom of his decisions, and cause the authority of the State, which entrusted such an office to him, to be respected in his own person. 2) Furthermore, he has the obligation to make himself useful to the State and at the same time to the citizens. Moreover, whoever is called to a public office, if he recognizes that he has the necessary qualities - and the common good demands that service - is bound by legal justice to accept. This is in fact one of the ways in which the citizen contributes his work for the common good. 3) As a guardian of the laws, the m. cannot abuse his mandate, but must aim at the public good with attention and vigilance, a sense of justice and absolute disinterestedness. 4) As for knowledge, a general and remote preparation is not enough in the m., but that proximate and immediate knowledge which pertains to the office to be carried out is required. 5) It is hardly necessary to mention the question of the moral elevation required in the m. As an example, what Moses did (Ex. 18) may serve, for in choosing the first m. of the Jewish people he called to this office wise men and God-fearing men, of proven uprightness and enemies of falsehood and avarice. 6) Regarding the conduct of the m. in the face of an unjust law, which he is forced to apply, what has been said for the judge holds true.
Bibliography5 works
Luigi Morstabilini