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The courts are part of the government no?

by awithrow 2mo ago

psalaun 2mo ago
No, separation of powers
- awithrow 2mo ago
  Separation of powers between the different branches of government.
tmp10423288442 2mo ago
In Western countries, the judiciary and the executive (which contains the day-to-day operations of the government) generally operate independently and can rule against each other. I'm most familiar with the US, and I think its constitution was the first to encode judicial independence - and constitutional review by the Supreme Court was established early on in US history. But all Western countries these days have had judges rule against executive policy and the executive obey it. The details of how to override a ruling against the executive does differ between countries, and also on whether its considered just an interpretation of law or a constitutional question. Both the US and France have a written constitution that's binding on other branches, while the UK does not.
- ChocolateGod 2mo ago
  > The details of how to override a ruling against the executive does differ between countries, and also on whether its considered just an interpretation of law or a constitutional question. Both the US and France have a written constitution that's binding on other branches, while the UK does not. Yeh. In the UK, the supreme court can not strike down primary legislation. It can rule executive actions are not following the primary legislation or unwritten constitutional rules, but if parliament passes a law that says oranges are now green, the supreme court is in no position to challenge it.
  - kergonath 2mo ago
    > if parliament passes a law that says oranges are now green, the supreme court is in no position to challenge it. It’s a good thing MPs are serious people and Parliament would never do that, right? :)
    - kps 2mo ago
      If you're worried about MPs doing that, you should be equally worried about judges doing that. The difference is that MPs can be voted out.
      - kergonath 2mo ago
        Indeed. That’s part of why I prefer civil law to common law. I don’t vote in general elections anyway. I am a resident, not a citizen.
  - wahern 2mo ago
    The UK does have the Principle of Legality, which is a way for courts to strike down an application of primary legislation by requiring a clear statement to abrogate common law and constitutional norms: https://ukconstitutionallaw.org/2024/05/20/hayley-hooper-historical-origins-of-the-principle-of-legality-in-british-public-law/ https://ukconstitutionallaw.org/2024/05/20/hayley-hooper-his... An interesting twist to UK constitutional jurisprudence is that until relatively recently the House of Lords was the highest court. In fact, the very origin of Parliament was as a court. The devolution of legislative and judicial (and executive) powers from the king had always been intertwined. So contrasting constitutional judicial review between the US and UK by gesturing at the principle of Parliamentary Supremacy didn't necessarily prove anything as the House of Lords was, in a sense, Parliament. (This was often a rebuttal for when people brought up the Principle of Legality as contradicting Parliamentary Supremacy, or otherwise interjected in discussions of judicial review in the UK.) Now that the highest court is independent, the next 100 years of constitutional jurisprudence in the UK should prove interesting.
    - graemep 2mo ago
pmontra 2mo ago
I checked your profile and you are cofounder of a company with branches all around Europe. At least the countries in the EU should have separation of powers, and the judicial (the courts) are independent from the government and there is a parliament which is more or less independent from the government too. Of course the government is usually backed by the majority of the parliament so the two of them often act together. The courts apply the law, whatever it is, but if the parliament or the government or the president (for presidential democracies) do something against the law or the constitution (or equivalent chart), there is at least a court that can undo that legislation and send it back for an overhaul. This is what happened in France.
- alecbz 2mo ago
  > At least the countries in the EU should have separation of powers, and the judicial (the courts) are independent from the government In the US "government" generally refers to all three branches; is that not the case in Europe?
  - kergonath 2mo ago
    I don’t know about the whole of Europe but generally, no. The government is the executive branch or a subset of it.
    - alecbz 2mo ago
      Interesting -- is there any term referring to the executive, legislative, and judicial functions collectively?
      - kergonath 2mo ago
        I am not sure. In French that would be the state (L’État). It’s more complicated in the U.K., with its layers of national, devolved country, and local governance. Then, it would be different again in federations like Germany.
      - pamcake 2mo ago
kergonath 2mo ago
Cultural tangent: in France, "the government" is the group of ministries (or departments in the US), part of the executive branch. So, the judiciary is not part of the government, and the National Assembly and the Senate (legislative branch) are not either. The head of state is not part of the government either, which is how you can get headlines about disagreements between the President and the Government. It’s quite different from how things are managed in the US. My understanding is that it is somewhat similar in the UK, which would be relevant in a BBC story.
- awithrow 2mo ago
  Is there a term then that encompasses all the branches?

The courts are part of the government no?

psalaun 2mo ago

No, separation of powers

awithrow 2mo ago
Separation of powers between the different branches of government.

tmp10423288442 2mo ago

In Western countries, the judiciary and the executive (which contains the day-to-day operations of the government) generally operate independently and can rule against each other. I'm most familiar with the US, and I think its constitution was the first to encode judicial independence - and constitutional review by the Supreme Court was established early on in US history. But all Western countries these days have had judges rule against executive policy and the executive obey it. The details of how to override a ruling against the executive does differ between countries, and also on whether its considered just an interpretation of law or a constitutional question. Both the US and France have a written constitution that's binding on other branches, while the UK does not.

ChocolateGod 2mo ago
> The details of how to override a ruling against the executive does differ between countries, and also on whether its considered just an interpretation of law or a constitutional question. Both the US and France have a written constitution that's binding on other branches, while the UK does not. Yeh. In the UK, the supreme court can not strike down primary legislation. It can rule executive actions are not following the primary legislation or unwritten constitutional rules, but if parliament passes a law that says oranges are now green, the supreme court is in no position to challenge it.
- kergonath 2mo ago
  > if parliament passes a law that says oranges are now green, the supreme court is in no position to challenge it. It’s a good thing MPs are serious people and Parliament would never do that, right? :)
  - kps 2mo ago
    If you're worried about MPs doing that, you should be equally worried about judges doing that. The difference is that MPs can be voted out.
    - kergonath 2mo ago
      Indeed. That’s part of why I prefer civil law to common law. I don’t vote in general elections anyway. I am a resident, not a citizen.
- wahern 2mo ago
  The UK does have the Principle of Legality, which is a way for courts to strike down an application of primary legislation by requiring a clear statement to abrogate common law and constitutional norms: https://ukconstitutionallaw.org/2024/05/20/hayley-hooper-historical-origins-of-the-principle-of-legality-in-british-public-law/ https://ukconstitutionallaw.org/2024/05/20/hayley-hooper-his... An interesting twist to UK constitutional jurisprudence is that until relatively recently the House of Lords was the highest court. In fact, the very origin of Parliament was as a court. The devolution of legislative and judicial (and executive) powers from the king had always been intertwined. So contrasting constitutional judicial review between the US and UK by gesturing at the principle of Parliamentary Supremacy didn't necessarily prove anything as the House of Lords was, in a sense, Parliament. (This was often a rebuttal for when people brought up the Principle of Legality as contradicting Parliamentary Supremacy, or otherwise interjected in discussions of judicial review in the UK.) Now that the highest court is independent, the next 100 years of constitutional jurisprudence in the UK should prove interesting.
  - graemep 2mo ago

pmontra 2mo ago

I checked your profile and you are cofounder of a company with branches all around Europe. At least the countries in the EU should have separation of powers, and the judicial (the courts) are independent from the government and there is a parliament which is more or less independent from the government too. Of course the government is usually backed by the majority of the parliament so the two of them often act together. The courts apply the law, whatever it is, but if the parliament or the government or the president (for presidential democracies) do something against the law or the constitution (or equivalent chart), there is at least a court that can undo that legislation and send it back for an overhaul. This is what happened in France.

alecbz 2mo ago
> At least the countries in the EU should have separation of powers, and the judicial (the courts) are independent from the government In the US "government" generally refers to all three branches; is that not the case in Europe?
- kergonath 2mo ago
  I don’t know about the whole of Europe but generally, no. The government is the executive branch or a subset of it.
  - alecbz 2mo ago
    Interesting -- is there any term referring to the executive, legislative, and judicial functions collectively?
    - kergonath 2mo ago
      I am not sure. In French that would be the state (L’État). It’s more complicated in the U.K., with its layers of national, devolved country, and local governance. Then, it would be different again in federations like Germany.
    - pamcake 2mo ago

kergonath 2mo ago

Cultural tangent: in France, "the government" is the group of ministries (or departments in the US), part of the executive branch. So, the judiciary is not part of the government, and the National Assembly and the Senate (legislative branch) are not either. The head of state is not part of the government either, which is how you can get headlines about disagreements between the President and the Government. It’s quite different from how things are managed in the US. My understanding is that it is somewhat similar in the UK, which would be relevant in a BBC story.

awithrow 2mo ago
Is there a term then that encompasses all the branches?