The judiciary

What is the law

The law is a collection of rules laid down by the government, binding all members of the state, including members of the government

Primary legislation

Statutes/ acts, passed by the legislative branch

Secondary (or delegated) legislation

By the executive branch: Ministerial decrees; regulations issued by agencies

What are the two “branches” of the law

Criminal law and Civil law

Criminal law

Matters the government wants to prohibit

Public law, enforced by the government

Sanctions/punishment

Civil law

Rights and duties amongst (natural or legal) persons

Private law, enforced by individuals

Remedies

Case law

Courts interpret law + precedent key + "innocent until proven guilty" + neutral judge + law “above state”

Code law

Govt produces/interprets law (codified)

Limited role of precedent

No presumption

Judge finds truth

Law as “state tool”

Sharia law

Important in Iran, Saudi Arabia. Often complements secular law (esp. family affairs). Based on Islamic scriptures. Moral/religious framework with legal principles.

Judicial review

The power to overrule the actions of other parts of the government on constitutional grounds.

2 main reasons for judicial review

1. Need for a “referee” where power is divided

2. Protection of fundamental rights

Modes of judicial review: US-type

Decentralized (by any court)

Supreme Court has general jurisdiction

Concrete review (cases)

Separation from legislative and judiciary

Modes of judicial review: European-type constitutional review

Centralized (Constitutional Court)

Constitutional Court deals only with these matters

Abstract review (adopted law, before enforcement)

Concrete review by referral

Constitutional Court with quasi-legislative role

Principal-agent theory in relation to the Judiciary

Elected politicians delegate power to judges (always a danger of agency loss), raising questions about why politicians cede power in the first place and who enforces the judicial review decisions?)

Supreme Court of the US

9 members, lifetime tenure.

Nominated by the president, “advice and consent” by the Senate

Decisions by majority

Supreme Court of Ireland

10+2 members

Gov chooses judges (president formally appoints them and they retire at 70)

President can refer bills for a priori abstract review

Considers appeals from the Court of Appeal and High Court