Business Law

The judicial system

Up until now, we have only discussed national and international law itself. We have not had a look yet at the system that has been created to uphold the law. That will be our topic this week.

1. Introduction

When we start discussing the so called judicial system - the system of courts and tribunals that is supposed to uphold the law - we have to keep in mind that a judicial system is a national phenomenon. In other words, there is not really an effective international court system. There are a few international courts, such as the International Court of Justice of the UN, the International Criminal Court of the UN, the European Court of Human Rights and the Court of Justice of the European Communities (European Court of Justice). With the exception of the European Court of Justice, these international courts do not have supranational authority to rule over cases and their authority is largely based on the voluntary submission by countries and/or individuals. As we have already seen, the European Court of Justice has a slightly different position, since it does have the supranational authority to rule in cases within the European Union. The European Court of Justice constitutes a fourth layer of litigation, in addition to the 3 layers that normally consist within every national judicial system. All the other international courts and tribunals are international legal institutions that have limited jurisdiction.

2. The separation of powers

Based on the idea of the Trias Politica (the separation of powers), in most countries the 3 most important powers in the state are organized as follows:

The legislative power

The parliament:

creates the laws

The executive power

The government: executes the laws

The judicial power

The judicial system

rules in case of conflicts

According to the idea of Trias Politica, as developed by Montesquieu, the 3 major powers in a state (legislative, executive and judicial power) have to be...