judiciary and legal systems

S&S definition - law

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

what qualifies as primary legislation?

things passed by legislative branch (statutes/acts)

what qualifies as secondary legislation?

passed by the executive branch (ministerial decrees, regulations issued by agencies, etc.)

2 branches of law + their spheres

1. criminal law --> prohibition. public law enforced by govt with sanctions
2. civil law --> rights and duties amongst persons. private law enforced by individuals with remedies

4 components of case law systems

1. law is interpreted by courts and precedents are significant
2. "innocent until proven guilty"
3. judge as a neutral arbiter of justice/the law
4. law is above the state = state is beholden to it

5 components of code/civil law

1. law is produced and interpreted by the government - codified
2. limited role of precedent
3. no presumption of innocence or otherwise
4. judge is involved in establishing the truth
5. law is a tool of the state

3 components of Sharia law

1. moral and religious framework including legal principles, is based on scriptures of Islam
2. important in Iran and Saudi Arabia but limited elsewhere
3. often used as a complement to secular law, esp. for family affairs

judicial review definition S&S

the power to overrule the actions of other parts of the govt on constitutional grounds

2 reasons for judicial review

1. need for a referee where power is divided
2. protection of fundamental rights

2 models of judicial review

1. US-type judicial review
2. European type constitutional review

4 elements of US-type judicial review

1. decentralized (done by any court)
2. supreme court has jurisdiction generally, not just over constitutional matters
3. review is tied to a specific case, not abstract review of constitutionality
4. legislative and judiciary systems remain separate

5 elements of european type constitutional review

1. centralized (only constitutional court is able to review)
2. constitutional court only has jurisdiction with these matters
3. abstract review - laws are reviewed before enforcement
4. concrete review by referral only
5. constitutional court adopts quasi-legislative role

principal-agent theory + questions of judicial power (3)

1. danger of agency loss
2. why cede power to courts?
3. who enforces the judicial review decisions (= informal institutions)

Supreme Court of Ireland system - 4 points

1. 10 + 2 members
2. govt chooses judges who have a fixed retirement age
3. president can refer bills for abstract review
4. considers appeals from court of appeal and high court

1 concern - relationship b/w politics and judiciary

politics may become judicialized while judiciary becomes politicized - danger

example - Hungary's democratic backslide 2010

2010
constitution quickly came under Orbán's control after he won a 2/3 majority, quickly adapted its role and scope to benefit his political aims