Judicial review in Themiclesia

Judicial review in Themiclesia comprises the principles and procedures for resolving disputes between government authorities and private interests. This remedy is only available for a personal interest, whether liberty of person, real or personal property, or another privilege or legal right, damaged by an unlawful but official act of a civil or military officer. Judicial review permits plaintiffs to recover losses but does not penalize the convicted party at the same time.

History

Pre-modern

The principle of judicial review, as a separate purview, developed relatively recently in Themiclesia. Prior to the erection of the Court of Compensations in 1280, the only recourse against a misbehaving official was a suit at the royal court, which was costly and unreliable if the official had been a favourite. The Court of Compensations (賣廷, lok-lêng) heard cases involving the lawful seizure of private property for official purposes and granted compensation if it was not already granted by the seizing magistrate, or not thereby granted to a reasonable amount. Subsequently, it also heard merchants' complaints if the government has not made payment for its purchases, wherein delivery always preceded payment, or not the agreed amount. At the same time, the Exchequer Court (內廷) heard revenue cases, if barons complained that magistrates had reaped from their lands without permission.

The distinction between the two tribunals seems to be that the Court of Compensations only offered monetary compensations for assets seized by magistrates, while the Exchequer could only return unjustly collected revenues, whether in kind or money, as it was the place where public revenues were tallied and sealed. The Court of Compensations was equally the place where the defence of prerogatives was carried out. If a person entitled to privileges, such as a piece of land free from taxation or a privilege from arrest, found them not recognized by other authorities, the Court could order the authorities to give proper regard for them. However, these courts did not have jurisdiction over the royal estate, which covered about one-tenth of Themiclesia and could have supported up to a million individuals.

During the Themiclesian Republic, private individuals acquired rights to recover properties damaged by magistrates but not actually seized. The courts of Compensations and Exchequer were only competent to provide compensation if the articles came into government hands. Ordinary magistrates hitherto tried complaints of damaged property, though as they would be proceeding against themselves, redress was seldom forthcoming. A new court was set up in 1477 to exercise this function. The 1477 decision is considered a milestone in Themiclesian jurisprudence as it implicitly recognized private property to be secure against magisterial action without valid reason, including mere damage but not seizure. However, historians also advise caution about the efficacy of these courts, which only sat when cases were pending; these courts imposed tremendous costs on plaintiffs, "to drive away frivolous suits."

Two additional avenues existed to curb magisterial actions. A magistrate, in general, must obey royal commands and those of higher magistrates, some of which developed into permanent laws during the 4th century and were codified into statutes since the early 6th. A person may bring suit at the royal court that a magistrate had made commands contra veteres res, i.e. against established royal laws, or contra dictum, i.e. against a superior magistrate's standing decisions; however, neither provided remedies to the plaintiff except to arrest the magistrate's commands. Thus, they usually were accompanied by a suit for unlawfully seized assets. According to the historian A. Gro, these actions "encompass a large portion of the means to redress misgoverment up to the modern era."

Modern

As early Themiclesian legislators seems to have considered concepts like personal liberties to be a matter of ethics rather than an infringement of a right, they were not raised in the courts until the 18th century. The 17th-century Themiclesian jurist Lord Pit said that the courts must strive "to restore that which has been unlawfully taken, and to punish the injustice of unlawfully taking," usually intepreted to mean a strong focus on property rights in Pit's era. Nevertheless, protection against magisterial action upon non-property was granted mostly in the name of economy: from 1433, magistrates were to hear each criminal defendant in his jail at least twice a year; if a prisoner was not heard in a judicial term, he was to go free at the beginning of the next. This was, according to most historians, not a law against imprisonment without trial, but one to prevent magistrates from increasing prison costs by reason of his lethargy, as the state was required to feed prisoners twice a day and issue clothes twice a year.

At the dawn of the 18th century, Casaterran jurisprudence gained a strong following in Themiclesia; Emperor Gwidh-mjen was supportive of studies into various external jurisdictions to improve the quality of judgments and the "general happiness of the people" in an era when lawsuits were increasingly filed in Kien-k'ang due to access to the local lawyer's guild. Conversely, local jurisdictions which often enforced idiosyncratic laws receded and were confined to land surveys, moral offences, marriage and divorces, shipwrecks, and coroner's inquests by the middle of the 19th century. This centralization is often thought to have reduced the power of magistrates in his geographic jurisdiction. While some judges succumbed to pressure to find for the Government during the Maverican Wars, mainly to reduce its obligations and increase rights, others were known as thorny figures who rejected the government's attempts to annex lands with missing owners or to delay payments to contractors.

Themiclesians received the right to bring the Government to trial for all breaches of property rights through the General Pleading Code of 1780; thus, the actions that redressed unjust seizures by magistrates were abolished in 1803 in favour of ordinary civil actions. As this development deprived the government of special privileges as a defendant in civil cases, most writers no longer consider violations of property rights by the Government to be a matter of judicial review in form. In the same year, the Crown (always represented by attorney) also became a defendant in his capacity as owner of the royal estate. Though these developments were received with broad approval by prominent Themiclesians and later commentators, this was "the final development in the history of judicial review for a very long time", as legislators found that the state had become a citizen's peer in civil suits.

See also

• Themiclesia