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11.1 What Is the Judiciary?

The judicial system or judiciary is the court system for a particular area. Rule-of-law systems make all accountable to the law and attempt to remain politically neutral and to exercise justice as fairness. Rules of procedure limit what the judicial branch can do. In rule-by-law systems, a person or group uses the courts to reinforce their power and worldview in an authoritarian regime. Sometimes countries change from rule of law to rule by law due to a strengthening of one person’s or one party’s political power.

In rule-of-law systems, the judicial branch depends on the other branches and the population’s respect for the rule of law to carry out its decisions. In rule-by-law systems, the courts work with the military or police to enforce compliance with their rulings.

Judicial selection processes fall into four broad categories: appointment for life, appointment for a specified number of years, election, and hybrid, or a combination of these methods (e.g., appointment followed by retention election).

11.2 How Does the Judiciary Take Action?

A court case is a specific dispute about the law and its effect on the parties, or the people directly affected. The court can only consider specific questions brought by the parties, which are called issues. The court can only determine if the facts, or evidence, meet the criteria specified in the written law and answer the questions the parties have raised.

Judicial implementation is the process by which a court’s decision, or judgment, is put into practice and enforced. The court must rely on other branches of government, usually primarily the executive branch, to turn its decisions into written statutes or orders.

Courts do not openly make public policy, as they only answer questions presented to them in a specific case by interpreting written laws. Unlike the legislative and executive branches, they cannot look at global events and decide to take action. However, court decisions can impact law and society, nudging social and political policies in a particular direction.

11.3 Types of Legal Systems around the World

There are five basic types of legal systems in the world: civil law, common law, customary law, religious law, and hybrid or mixed systems.

The US and other legal systems that emanate from British rule use a common law legal system. Today, almost all law in common law systems is in writing and enacted by a legislature as statutes. Many statutes codify established common law, change it, or altogether abolish it, depending on the topic of the law.

Most of Europe and South America uses a civil law system, which relies on comprehensive legal codes that contain all the laws for the country. Case law—that is, judicial decisions—are secondary to these codes. Decisions are binding only on the parties to the case and not as a precedent for later cases on the same issues. While attorneys will consult prior decisions when advising clients, judges are rarely bound to follow the precedent. For this reason, codes of statutes are usually more extensive and detailed than in common law systems.

In a religious law system, the law relies on religious texts as its primary basis, and the courts interpret the present facts and statutes in light of those religious texts.

Customary systems are based on long-standing traditions in a particular community that have become so ingrained in society that the courts recognize them as enforceable rules. It is rare for customary laws to be interpreted and enforced by the government. Instead, select leaders of the group usually implement the customary laws. As a result, customary laws are typically unwritten and revealed only to group members.

A hybrid system combines parts of more than one approach to create a system unique to that country. Many countries have mixed legal systems incorporating common, civil, religious, and customary law systems. On recognized tribal lands, customary laws of the tribe may be used rather than state or federal laws.

11.4 Criminal versus Civil Laws

There are two major divisions in law, criminal and civil. Criminal law applies to offenses against the state that are punished because they harm society. Criminal law requires a statute to create an offense, its elements, and its punishment. An act is not a crime unless a written law establishes it as one. Only the government can prosecute a criminal case. A criminal case begins with an alleged crime, an arrest by the police, and a charge filed by a prosecutor. Anything that is not criminal law falls under civil law, such as when one individual is harmed by another and seeks compensation for the harm. In civil law legal systems, civil offenses are only by statute. In common law legal systems, civil offenses can be by statute or case precedent.

There are five general purposes for criminal punishment: incapacitation, retribution, deterrence, restitution, and rehabilitation.

There are two main types of criminal law: serious offenses, often called felonies, and less serious offenses, often called misdemeanors. Punishments for serious offenses may involve imprisonment for a term of years to life and, in a few countries, the death penalty. Lesser crimes are often punishable by no more than a fine. If a misdemeanor carries a prison sentence at all, that sentence is usually less than a year in length and is served in the local jail. The divisions between serious and lesser punishments and trial processes vary widely by country.

In all rule-of-law countries, the burden of proof for a criminal offense is beyond a reasonable doubt. In the United States, because a criminal case can impact an accused person’s liberty, the burden of proof is always on the government, and the standard of proof is always guilt beyond a reasonable doubt.

In rule-of-law countries, police must advise an individual at the time of arrest of certain rights, including the right to have an attorney assist them with their case and the right to be cautioned that anything they say can be used against them in court. Rule-of-law systems protect individuals against unreasonable searches and seizures. The UN has created recommendations for best policing practices for all countries, including limiting the police’s right to search an individual, their home, or their belongings to this standard. In all rule-of-law countries, a person held in jail has a right to demand to be brought into court and told why they are being jailed. In rule-by-law countries, this right is not recognized.

Capital crimes are those for which a person who is found guilty can be sentenced to the death penalty or to automatic life in prison without parole, depending on the laws in a specific country.

Civil law includes everything that is not criminal law. It differs from criminal law in that individuals or groups file cases. Civil law covers everything from family matters (marriage, divorce, adoption, guardianship, probate, etc.) to personal injury, workers’ compensation, medical malpractice, and business disputes.

11.5 Due Process and Judicial Fairness

Due process is the legal requirement that the government must respect the rights of the accused and take procedural steps to create a fair system of government action against the accused.

Procedural due process is the steps the government must take before depriving an individual of life, liberty, or property. Substantive due process attempts to ensure that the system of laws and courts does not infringe on individual constitutional rights. When reviewing how fair a system is, it is important to consider to what degree the judge and jury are impartial.

In rule-of-law countries, the standard style of court system is a three-tier hierarchy. Trial courts are the first level of courts. They are courts of original jurisdiction, the first courts with authority to hear a case. An appeal is a higher court’s review of a lower court’s decision. The workings of the appeals process vary widely around the world. In the United States, an appeal serves only to determine if an error of law occurred in the lower court that may have resulted in the rendition of an improper judgment. Strict standards for reviewing the lower court’s action vary by type of case.

11.6 Judicial Review versus Executive Sovereignty

Judicial review is one means of checking to see whether the other branches are following a country’s constitution and its principles. In some countries, this review is conducted not by judicial courts but by a group that reviews proposed laws while the legislature is still debating them.

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