16. JUDICIARY

Agenda

  • Fundamental distinctions in law

  • Different types of legal systems

  • Concept of judicial review and an overview of the highest courts

Preliminaries on Law

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

Types of Legislation

  • Primary legislation:

    • Statutes/acts passed by the legislative branch

  • Secondary (delegated) legislation:

    • Created by the executive branch, such as ministerial decrees and regulations issued by agencies

Branches of Law

Criminal Law

  • Focus: Matters the government aims to prohibit

  • Classification: Public law

  • Enforcement: By the government

  • Outcome: Imposition of sanctions/punishments

Civil Law

  • Focus: Rights and duties between individuals (natural or legal persons)

  • Classification: Private law

  • Enforcement: By individuals or entities

  • Outcome: Provision of remedies

Different Legal Systems

Case Law Systems

  • Characteristics:

    • Law interpreted by courts

    • Judicial opinions clarify the law; emphasizes the importance of precedent

    • Principle of "presumed innocent until proven guilty"

    • Judges act as neutral arbiters

    • Concept of law as something "above the state"

Code Law (Civil Law) Systems

  • Characteristics:

    • Law produced and interpreted by the government

    • Codified legal standards

    • Limited role of precedent

    • No presumption of innocence or similar protections

    • Judges involved in verifying the truth

    • Law viewed as a "tool of the state"

Sharia Law

  • Significance: Prominent in countries like Iran and Saudi Arabia

  • Application: Often complements secular law, particularly in family matters

  • Basis: Drawn from Islamic scriptures

  • Characteristics: Provides a moral and religious framework, underpinned by legal principles

Judicial Review

Definition

  • Judicial review: Defined as the "power to overrule the actions of other parts of the government on constitutional grounds"

Reasons for Judicial Review

  • Serves to provide a "referee" due to the division of governmental powers

  • Protection of fundamental rights

Models of Judicial Review

US-Type Judicial Review

  • Decentralized, any court can perform judicial review

  • Supreme Court possesses general jurisdiction

  • Concrete review based on specific cases

European-Type Constitutional Review

  • Centralized within a Constitutional Court

  • Constitutional Court solely addresses constitutional matters

  • Abstract review conducted on adopted laws, prior to their enforcement

  • Concrete review occurs via referral process

  • Courts exhibit quasi-legislative roles

Principal-Agent Theory

Overview

  • Elected politicians delegate authority to judges

  • Potential issues arise regarding agency loss where judges do not act as intended

Questions Raised

  • Inquiry into why politicians delegate powers to the judiciary

  • Examination of who enforces judicial review decisions

Supreme Court of the United States

Composition

  • Total judges: Nine, serving lifetime tenures

  • Appointment: Nominated by the president, confirmed by the Senate

Supreme Court of Ireland

Composition and Appointment

  • Total judges: 12

    • Government selects judges, appointed by the president

  • Mandatory retirement age: 70

Responsibilities

  • Can perform a priori abstract review of bills

  • Considers appeals from the Court of Appeal and High Court

Notable Cases

  • Ryan (1964): Recognition of unenumerated constitutional rights

  • McGee (1973): Found the ban on contraceptives unconstitutional (Gallagher 2023: 72-80)

Selection of Constitutional Court Judges in Various Countries

Implications of Judicial Review

  • Constitutional courts serve as crucial "referees" to protect fundamental rights

  • Potential issue: Judges may become viewed as lawmakers, leading to judicialization of politics

  • Risk of politicization of the judiciary

Debate Examples

The German Constitutional Court

  • Norbert Lammert (Speaker of the Parliament, 2015): Expressed concerns about the aspiration of judges for influence in politically charged issues

  • Heiko Maas (Minister of Justice, 2015): Argued that although rulings may not please all politicians, this should not justify limiting the Court’s powers

Case of Hungary

  • Backsliding post-2010 elections when Orbán’s alliance gained a 2/3 majority

  • Consequences on the Constitutional Court:

    • Judges appointed by a consensual method shifted to selection by parliamentary majority

    • Shifted from judges selecting the court president to parliamentary selection

    • Initial high compliance with government rulings diminished, with the government opting to amend the constitution instead of legal changes perceived as unconstitutional (Chronowski et al. 2022)

Concluding Remarks

  • Emphasized the diversity in:

    • Types of legal systems

    • Approaches to judicial review

    • Selection procedures for judges of Supreme/Constitutional Courts

  • Importance of understanding these dimensions for insight into the judiciary's relationship with other governmental branches