Welcome to the I Can't Sleep Podcast,
Where I help you drift off one fact at a time.
I'm your host,
Benjamin Boster,
And today's episode is about judiciary.
The judiciary,
Also known as the judicial system,
Judicature,
Judicial branch,
Adjudicative branch,
And court or judiciary system,
Is a system of courts that adjudicates legal disputes or disagreements and interprets,
Defends,
And applies the law in legal cases.
The judiciary is the system of courts that interprets,
Defends,
And applies the law in the name of the state.
It can also be thought of as the mechanism for the resolution of disputes.
Under the doctrine of the separation of powers,
The judiciary generally does not make statutory law,
Which is the responsibility of the legislature,
Or enforce the law,
Which is the responsibility of the executive,
But rather interprets,
Defends,
And applies the law to the facts of each case.
However,
In some countries,
The judiciary does make common law.
In many jurisdictions,
The judicial branch has the power to change laws through the process of judicial review.
Courts with judicial review power may annul the laws and rules of the state when it finds them incompatible with a higher norm,
Such as primary legislation,
The provisions of the Constitution,
Treaties,
Or international law.
Judges constitute a critical force for judicial interpretation and constitutional review while avoiding political bias.
History in Europe.
This is a more general overview of the development of the judiciary and judicial systems over the course of history.
Archaic Roman Law,
650-264 B.
C.
The most important part was Ius Civile,
Latin for Civil Law.
This consisted of Mos Majorum,
Latin for Way of the Ancestors,
And Legis,
Latin for Laws.
Mos Majorum was a set of rules of conduct based on social norms created over the years by predecessors.
In 451-449 B.
C.
,
The Mos Majorum was written down in the Twelve Tables.
Legis were rules set by the leaders,
First the kings,
Later the popular assembly during the Republic.
In these early years,
The legal process consisted of two phases.
The first phase,
In Lure,
Was the judicial process.
One would go to the head of the judicial system,
At first the priests,
As law was part of religion,
Who would look at the applicable rules to the case.
Parties in the case could be assisted by jurists.
Then the second phase would start,
The Apuludicem.
The case would be put before the judges,
Which were normal Roman citizens in an uneven number.
They were orators rather than jurists.
There were no rules of evidence and little recourse against an adverse judgment.
Pre-Classical Roman Law,
264-27 B.
C.
The most important change in this period was the shift from priest to praetor as the head of the judicial system.
The praetor would also make an edict,
In which he would declare new laws or principles for the year he was elected.
This edict is also known as Praetorian Law.
Principate,
27 B.
C.
To 284 A.
D.
The Principate is the first part of the Roman Empire,
Which started with the reign of Augustus.
This time period is also known as the Classical Era of Roman Law.
In this era,
The praetor's edict was now known as Edictum Perpetuum,
Which were all the edicts collected in one edict by Hadrian.
Also,
A new judicial process came up,
Cognitio Extraordinaria,
Latin for Extraordinary Process.
This came into being due to the largesse of the empire.
This process only had one phase,
Where the case was presented to a professional judge who was a representative of the emperor.
Appeal was possible to the immediate superior.
During this time period,
Legal experts started to come up.
They studied the law and were advisors to the emperor.
They also were allowed to give legal advice on behalf of the emperor.
Dominate,
284 to 565 A.
D.
This era is also known as the Post-Classical Era of Roman Law.
The most important legal event during this era was the Codification by Justinianus,
The Corpus Iuris Civilis.
This contained all Roman law.
It was both a collection of the work of the legal experts and commentary on it,
And a collection of new laws.
The Corpus Iuris Civilis consisted of four parts.
1.
Institutiones.
This was an introduction and a summary of Roman law.
2.
Digesta,
Pondecte.
This was a collection of the Edicts.
3.
Codex.
This contained all the laws of the emperors.
4.
Novelli.
This contained all new laws created.
During the late Middle Ages,
Education started to grow.
First,
Education was limited to the monasteries and abbeys,
But expanded to cathedrals and schools in the city in the 11th century,
Eventually creating universities.
The universities had five faculties.
Arts,
Medicine,
Theology,
Canon Law,
And Ius Civili,
Or Civil Law.
Canon Law,
Or Ecclesiastical Law,
Are laws created by the Pope,
Head of the Roman Catholic Church.
The last form was also called Secular Law,
Or Roman Law.
It was mainly based on the Corpus Iuris Civilis,
Which had been rediscovered in 1070.
Roman Law was mainly used for worldly affairs,
While Canon Law was used for questions related to the Church.
The period starting in the 11th century was the discovery of the Corpus Iuris Civilis,
Is also called the Scholastics,
Which can be divided into the Early and Late Scholastics.
It is characterized with the renewed interest in the old texts.
According to Kenneth Pennington,
An expert of legal history,
The sources of medieval law are diverse,
And include concilia,
Decretals,
Conciliar canons,
And Spanish procedural tracts.
The true mind of the medieval judge is unknowable,
He says,
And scholars who know norms that the jurists created,
And the jurisprudence of procedure,
Have a much better chance of reading the sources correctly than those who do not.
The rediscovery of the Digesta from the Corpus Iuris Civilis led the University of Bologna to start teaching Roman Law.
Professors at the University were asked to research the Roman Laws,
And advise the Emperor and the Pope with regard to the old laws.
This led the Glossators to start translating and recreating the Corpus Iuris Civilis,
And create literature around it.
Glossi,
Translations of the old Roman laws.
Summi,
Summaries.
Brocardica,
Short sentences that made the old laws easier to remember,
A sort of mnemonic.
Questio disputata,
Seeketh none,
A dialectic method of seeking the argument,
And refute it.
Accursius wrote the Glossa Ordinaria in 1263,
Ending the early scholastics.
Late Scholastics 1263-1453 The successors of the Glossators were the Post-Glossators,
Or commentators.
They looked at a subject in a logical and systematic way,
By writing commons with the texts,
Treatises,
And concilia,
Which are advices given according to the old Roman Law.
Canon Law,
Early Scholastics 1070-1234 Canon Law knows a few forms of laws,
The Canones,
Decisions made by councils,
And the Decreta,
Decisions made by the Popes.
The monk Gratian,
One of the well-known Decretists,
Started to organize all of the Church Law,
Which is now known as the Decretum Gratiani,
Or simply as Decretum.
It forms the first part of the collection of six legal texts,
Which together became known as the Corpus Juris Canonici.
It was used by canonists of the Roman Catholic Church until Pentecost,
19 May 1918,
When a revised Code of Canon Law,
Codex Juris Canonici,
Promulgated by Pope Benedict XV on 27 May 1917,
Obtained legal force.
Late Scholastics 1234-1453 The Decretalists,
Like the Post-Glossators,
For use civilly,
Started to write treatises,
Commons,
And advices with the texts.
Ius Commune Around the 15th century,
A process of reception and acculturation started with both laws.
The final product was known as Ius Commune.
It was a combination of Canon Law,
Which represented the common norms and principles,
And Roman Law,
Which were the actual rules and terms.
It meant the creation of more legal texts and books,
And a more systematic way of going through the legal process.
In the new legal process,
Appeal was possible.
The process would be partially inquisitorial,
Where the judge would actively investigate all the evidence before him,
But also partially adversarial,
Where both parties are responsible for finding the evidence to convince the judge.
After the French Revolution,
Lawmakers stopped interpretation of law by judges,
And the legislature was the only body permitted to interpret the law.
This prohibition was later overturned by the Napoleonic Code.
The rules of procedure,
Supposedly followed by medieval judges,
Were part of the pan-European system of norms,
Known as Ius Commune,
And probably offered a modicum of protection from harsh punishments like torture,
Auto-defay,
And capital punishment.
In practice,
Medieval judges were influenced by ideology and the interests of the powerful.
While procedural rules did not extend judicial protection to heretics,
The poor and political opponents,
Procedural rules contained valuable clues about the substantive norms that drove judicial decision-making in the Middle Ages.
In common law jurisdictions,
Courts interpret law.
This includes constitutions,
Statutes,
And regulations.
They also make law,
But in a limited sense,
Limited to the facts of particular cases,
Based upon prior case law,
In areas where the legislature has not made law.
For instance,
The tort of negligence is not derived from statute law in most common law jurisdictions.
The term common law refers to this kind of law.
Common law decisions set precedent for all courts to follow.
This is sometimes called estere decisis.
In the United States court system,
The Supreme Court is the final authority on the interpretation of the federal constitution and all statutes and regulations created pursuant to it,
As well as the constitutionality of the various state laws.
In the U.
S.
Federal court system,
Federal cases are tried in trial courts,
Known as the U.
S.
District courts.
Followed by the appellate courts,
And then the Supreme Court.
State courts,
Which try 98% of litigation,
May have different names and organization.
Trial courts may be called courts of common plea,
Appellate courts,
Superior courts,
Or commonwealth courts.
The judicial system,
Whether state or federal,
Begins with a court of first instance,
Is appealed to an appellate court,
And then ends at the court of last resort.
In France,
The final authority on the interpretation of the law is the Council of State for administrative cases and the court of Cassation for civil and criminal cases.
In the People's Republic of China,
The final authority on the interpretation of the law is the National People's Congress.
Other countries,
Such as Argentina,
Have mixed systems that include lower courts,
Appeal courts,
A Cassation court for criminal law,
And a Supreme Court.
In this system,
The Supreme Court is always the final authority,
But criminal cases have four stages,
One more than civil law does.
On the court sits a total of nine justices.
This number has been changed several times.
Japan's process for selecting judges is longer and more stringent than in various countries like the United States and Mexico.
Assistant judges are appointed from those who have completed their training at the Legal Training and Research Institute located in Wako.
Once appointed,
Assistant judges still may not qualify to sit alone until they have served for five years and have been appointed by the Supreme Court of Japan.
Judges require ten years of experience in practical affairs as a public prosecutor or practicing attorney.
In the Japanese judicial branch,
There is the Supreme Court,
Eight High Courts,
50 District Courts,
50 Family Courts,
And 438 Summary Courts.
Justices of the Mexican Supreme Court are appointed by the President of Mexico and then are approved by the Mexican Senate to serve for a 15-year term.
Other justices are appointed by the Supreme Court and serve for six years.
Federal courts consist of the 11 Ministries of the Supreme Court,
32 Circuit Tribunals,
And 98 District Courts.
The Supreme Court of Mexico is located in Mexico City.
Supreme Court judges must be of ages 35 to 65 and hold a law degree during the five years preceding their nomination.
United States Supreme Court justices are appointed by the President of the United States and approved by the United States Senate.
The Supreme Court justices serve for life term or until retirement.
The Supreme Court is located in Washington,
D.
C.
The United States federal court system consists of 94 federal judicial districts.
The 94 districts are then divided up into 12 regional circuits.
The United States has five different types of courts that are considered subordinate to the Supreme Court.
United States Bankruptcy Courts United States Court of Appeals for the Federal Circuit United States Court of International Trade United States Courts of Appeals and United States District Courts Immigration courts are not part of the judicial branch.
Immigration judges are employees of the Executive Office for Immigration Review,
The United States Department of Justice,
And the Executive Branch.
Each state,
District,
And inhabited territory also has its own court system operating within the legal framework of the respective jurisdiction,
Responsible for hearing cases regarding state and territorial law.
All these jurisdictions also have their own Supreme Courts,
Or equivalent,
Which serve as the highest courts of law within their respective jurisdictions.
The rule of law entails that the law is clear,
Consistent,
And open,
Individuals and groups have access to justice,
Such as fair,
Independent judiciaries,
And that government institutions,
Such as the executive,
Legislature,
And judiciary,
Are subject to the law.
It entails that all people and institutions within a political body are subject to the same law.
This concept is sometimes stated simply as,
No one is above the law,
Or all are equal before the law.
According to Encyclopedia Britannica,
It is the mechanism,
Process,
Institution,
Practice,
Or norm that supports the equality of all citizens before the law,
Secures a non-arbitrary form of government,
And more generally prevents the arbitrary use of power.
Legal scholars have expanded the basic rule of law concept to encompass,
First and foremost,
A requirement that laws apply equally to everyone.
Formalists add that the laws must be stable,
Accessible,
And clear.
More recently,
Substantivists expand the concept to include rights,
Such as human rights,
And compliance with international law.
Use of the phrase can be traced to 16th century Britain.
In the following century,
Scottish theologian Samuel Rutherford employed it in arguing against the divine right of kings.
John Locke wrote that freedom in society means being subject only to laws written by a legislature that apply to everyone,
With a person being otherwise free from both governmental and private restrictions of liberty.
The phrase rule of law was further popularized in the 19th century by British jurist A.
V.
Dicey.
However,
The principle,
If not the phrase itself,
Was recognized by ancient thinkers.
Aristotle wrote,
It is more proper that law should govern than any one of the citizens.
The term rule of law is closely related to constitutionalism,
As well as rechtsstaat.
It refers to a political situation,
Not to any specific legal rule.
Distinct is the rule of man,
Where one person or group of persons rule arbitrarily.
Although credit for popularizing the expression the rule of law in modern times is usually given to A.
V.
Dicey,
Development of the legal concept can be traced through history to many ancient civilizations,
Including ancient Greece,
Mesopotamia,
India,
And Rome.
The earliest conception of rule of law can be traced back to the Indian epics Ramayana and Mahabharata,
The earliest versions of which date around the 8th or 9th centuries B.
C.
The Mahabharata deals with the concepts of Dharma,
Used to mean law and duty interchangeably.
Rajadharma,
Duty of the king,
And Dharmaraja.
It states in one of its slokas that the people should execute a king who does not protect them,
But deprives them of their property and assets,
And who takes no advice or guidance from anyone.
Such a king is not a king,
But misfortune.
Other sources for the philosophy of rule of law can be traced to the Upanishads,
Which state that the law is the king of the kings.
No one is higher than the law,
Not even the king.
Several scholars have also traced the concept of the rule of law back to 4th century B.
C.
Athens,
Seeing it either as the dominant value of the Athenian democracy,
Or as one held in conjunction with the concept of popular sovereignty.
However,
These arguments have been challenged,
And the present consensus is that upholding an abstract concept of the rule of law was not the predominant consideration of the Athenian legal system.
Aristotle,
In his Politics,
Wrote,
It is more proper that law should govern than any one of the citizens.
Upon the same principle,
If it is advantageous to place the supreme power in some particular persons,
They should be appointed to be only guardians and the servants of the laws.
The idea of the rule of law can be regarded as a modern iteration of the ideas of ancient Greek philosophers,
Who argued that the best form of government was ruled by the best men.
Plato advocated a benevolent monarchy,
Ruled by an idealized philosopher-king,
Who was above the law.
Plato,
Nevertheless,
Hoped that the best men would be good at respecting established laws,
Explaining that,
Where the law is subject to some other authority and has none of its own,
The collapse of the state,
In my view,
Is not far off.
But if law is the master of the government,
And the government is its slave,
Then the situation is full of promise,
And men enjoy all the blessings that the gods shower on a state.
Similarly,
Aristotle flatly opposed letting the highest officials wield power beyond guarding and serving the laws.
The Roman statesman Cicero is often cited as saying roughly,
We are all servants of the laws in order to be free.
During the Roman Republic,
Controversial magistrates might be put on trial when their terms of office expired.
Under the Roman Empire,
The sovereign was personally immune,
But those with grievances could sue the treasury.
In China,
Members of the school of legalism during the 3rd century BC argued for using law as a tool of governance,
But they promoted rule by law as opposed to rule of law,
Meaning that they placed the aristocrats and emperor above the law.
In contrast,
The Huanglao school of Daoism rejected legal positivism in favor of natural law that even the ruler would be subject to.
The ancient concept of rule of law can be distinguished from rule by law,
According to political science professor Li Shuguang.
The difference is that under the rule of law,
The law is preeminent and can serve as a check against the abuse of power.
Under rule by law,
The law is a mere tool for a government that suppresses in a legalistic fashion.
Alfred the Great,
Anglo-Saxon king in the 9th century,
Reformed the law of his kingdom and assembled a law code,
The Doom Book,
Which he grounded on biblical commandments.
He held that the same law had to be applied to all persons,
Whether rich or poor,
Friends or enemies.
This was likely inspired by Leviticus chapter 1,
Chapter 19,
Verse 15.
You shall do not iniquity in judgment.
You shall not favor the wretched and you shall not defer to the rich.
In righteousness you are to judge your fellow.
In 1215,
Archbishop Stephen Langton gathered the barons in England and restricted the powers of King John and future sovereigns and magistrates under the rule of law,
Preserving ancient liberties by Magna Carta in return for exacting taxes.
The influence of Magna Carta ebbed and waned across centuries.
The weakening of royal power it demonstrated was based more upon the instability presented by contested claims than thoughtful adherence to constitutional principles.
Until 1534,
The Church excommunicated people for violations.
But after a time,
Magna Carta was simply replaced by other statutes considered binding upon the king to act according to process of the law.
Magna Carta's influence is considered greatly diminished by the reign of Henry VI after the Wars of the Roses.
The ideas contained in Magna Carta are widely considered to have influenced the United States Constitution.
The first known use of this English phrase occurred around 1500.
Another early example of the phrase rule of law is found in a petition to James I of England in 1610 from the House of Commons.
Amongst many other points of happiness and freedom,
Which Your Majesty's subjects of this kingdom have enjoyed under your royal progenitors,
Kings and queens of this realm,
There is none which they have accounted more dear and precious than this,
To be guided and governed by the certain rule of law,
Which giveth both to the head and members that which of right belongeth to them,
And not by any uncertain or arbitrary form of government.
