The Judicial Branch: Judicial Review and Rule of Law
Core Concepts
Examines the role of the judiciary in interpreting laws and upholding the constitution. Covers judicial review, judicial independence, the rule of law, and a comparison of common law, code law, and Sharia law systems.
The Judicial Branch: Judicial Review and Rule of Law
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What is the 'rule of law'?
The principle that all individuals and institutions, including the state itself, are subject to and accountable under the law. No one is above the law.
What is the primary function of the judicial branch?
To interpret the laws of the country, resolve legal disputes, and administer justice. In many countries, it also determines the constitutionality of laws and government actions.
What is 'judicial independence,' and why is it crucial for the rule of law?
Judicial independence is the principle that the judiciary should be free from influence or control by the other branches of government or by private interests. It is crucial for ensuring impartial judgments and upholding the law fairly.
Define 'judicial review'.
The power of a court to determine whether a law, regulation, or government action violates the provisions of a country's constitution. If found unconstitutional, the action is nullified.
What is the difference between 'concrete' and 'abstract' judicial review?
Concrete review allows a court to rule on a law's constitutionality only in the context of a specific court case. Abstract review allows a court to rule on a law's constitutionality without a specific case, often upon request from a political official.
What is a 'common law' system?
A legal system based on precedent and judicial decisions. Judges interpret laws and their rulings become precedents that shape future cases. This system originated in the United Kingdom and is used in countries like the United States.
What is a 'code law' (or 'civil law') system?
A legal system based on a comprehensive and continuously updated set of written statutes or codes. Judges apply the codes to specific cases but do not create new law through precedent. This is the most common system globally, used in much of Europe.
What is a 'constitutional court'?
A specialized high court that deals only with constitutional matters and has the primary authority for judicial review. This is common in code law countries, like Germany's Federal Constitutional Court.
In a system without a single, written constitution like the UK, how does judicial review function?
Judicial review is more limited. Courts can rule on the legality of government actions based on Acts of Parliament but cannot strike down a law for being 'unconstitutional' due to the principle of parliamentary sovereignty.
What is Sharia law?
The legal system of Islam, derived from the Quran and the teachings of the Prophet Muhammad. In some countries, like Iran, it forms the basis of the national legal code, influencing both civil and criminal matters.
How can the power of the judiciary be checked or limited by other branches?
Other branches can limit judicial power through several means: executive appointment of judges, legislative confirmation of judges, constitutional amendments to overturn rulings, and changing the court's jurisdiction.
What is 'parliamentary sovereignty'?
A principle in the UK's constitution that makes Parliament the supreme legal authority. It can create or end any law, and the courts cannot overrule its legislation.
What is the difference in the role of judges in common law vs. code law systems?
In common law, judges are 'creators' of law through precedent (stare decisis). In code law, judges are 'investigators' and 'appliers' of the detailed written codes, with a less creative role.
