Judiciary
The judiciary (also known as the judicial system or judicature) is the system of courts that interprets and applies the law in the name of the sovereign or state. The judiciary also provides a mechanism for the resolution of disputes. Under the doctrine of the separation of powers, the judiciary generally does not make law (that is, in a plenary fashion, which is the responsibility of the legislature) or enforce law (which is the responsibility of the executive), but rather interprets law and applies it to the facts of each case. This branch of government is often tasked with ensuring equal justice under law. It usually consists of a court of final appeal (called the "supreme court" or "constitutional court"), together with lower courts.
In most jurisdictions and 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 the provisions of a constitution. Judges constitute a critical force for interpretation and implementation of a constitution, thus de facto in common law countries creating the body of constitutional law. During last decades the judiciary became active in economic issues related with economic rights established by constitution because "economics may provide insight into questions that bear on the proper legal interpretation".[3] Since many a country with a transitional political and economic system continues treating its constitution as an abstract legal document disengaged from the economic policy of the state, practice of judicial review of economic acts of executive and legislative branches became to grow.
In the 1980s, the Supreme Court of India for almost a decade had been encouraging public interest litigation on behalf of the poor and oppressed by using a very broad interpretation of several articles of the Indian Constitution. [4]
Budget of the judiciary in many transitional and developing countries is almost completely controlled by the executive. The latter undermines the separation of powers, as it creates a critical financial dependence of the judiciary. The proper national wealth distribution including the government spending on the judiciary is subject of the constitutional economics. It is important to distinguish between the two methods of corruption of the judiciary: the state (through budget planning and various privileges), and the private. [5]
The term "judiciary" is also used to refer collectively to the personnel, such as judges, magistrates and other adjudicators, who form the core of a judiciary (sometimes referred to as a "bench"), as well as the staffs who keep the system running smoothly.(sort of)
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History
After the French Revolution, lawmakers prohibited any interpretation of law by judges, and the legislature was the only body permitted to interpret the law; this prohibition was later overturned by the Code Napoléon.[6]
In France, along with other countries that Napoleon had conquered, or where there was a reception of the Civil Code approach, judges once again assumed an important role, like their English counterparts. In civil law jurisdictions at present, judges interpret the law to about the same extent as in common law jurisdictions – though it may be acknowledged in theory in a different manner than in the common law tradition which directly recognizes the limited power of judges to make law. For instance, in France, the jurisprudence constante of the Court of Cassation or the Council of State is equivalent in practice with case law.
In theory, in the French civil law tradition, a judge does not make new law; he or she merely interprets the intents of "the Legislator." The role of interpretation is traditionally approached more conservatively in civil law jurisdictions than in common law jurisdictions. When the law fails to deal with a situation, doctrinal writers and not judges call for legislative reform.
Various functions
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- In common or provinces, courts interpret law, including 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.
- In civil law jurisdictions, courts interpret the law, but are, at least in theory, prohibited from creating law, and thus, still in theory, do not issue rulings more general than the actual case to be judged. In practice, jurisprudence plays the same role as case law.
- In socialist law, the primary responsibility for interpreting the law belongs to the legislature.
This difference can be seen by comparing United States, France and the People's Republic of China:
- 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 US federal court system, federal cases are tried in trial courts, known as the US district courts, followed by appellate courts and then the Supreme Court. State courts, which try the 98% of litigation,[7] may have different names and organization; trial courts may be called "courts of common plea", appellate courts "superior courts" or "commonwealth courts".[8] 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.[9]
- 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;
- and in the People 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, appeals 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.
See also
- Bench (law)
- Separation of powers
- Judicial Review
- Executive
- Legislature
- Corruption
- Constitutional economics
- Rule of law
- Independence of the judiciary
References
- ↑ Hamilton, Marci. God vs. the Gavel, page 296 (Cambridge University Press 2005): “The symbol of the judicial system, seen in courtrooms throughout the United States, is blindfolded Lady Justice.”
- ↑ Fabri, Marco. The challenge of change for judicial systems, page 137 (IOS Press 2000): “the judicial system is intended to be apolitical, its symbol being that of a blindfolded Lady Justice holding balanced scales.”
- ↑ Posner R. The Constitution as an Economic Document. The George Washington Law Review. November 1987. Vol. 56. No. 1
- ↑ Jeremy Cooper, Poverty and Constitutional Justice, in Philosophy of Law: Classic and Contemporary Readings, edited by Larry May and Jeff Brown, Wiley-Blackwell, UK, 2010.
- ↑ Peter Barenboim, Defining the rules, The European Lawyer, Issue 90, October 2009
- ↑ Cappelletti, Mauro et al. The Italian Legal System, page 150 (Stanford University Press 1967).
- ↑ American Bar Association (2004). How the Legal System Works: The Structure of the Court System, State and Federal Courts. In ABA Family Legal Guide.
- ↑ The American Legal System.
- ↑ Public Services Department. INTRODUCTION TO THE COURT SYSTEM. Syracuse University College of Law.
Further reading
- Cardozo, Benjamin N. (1998). The Nature of the Judicial Process. New Haven: Yale University Press.
- Feinberg, Kenneth, Jack Kress, Gary McDowell, and Warren E. Burger (1986). The High Cost and Effect of Litigation, 3 vols.
- Frank, Jerome (1985). Law and the Modern Mind. Birmingham, AL: Legal Classics Library.
- Levi, Edward H. (1949) An Introduction to Legal Reasoning. Chicago: University of Chicago Press.
- Marshall, Thurgood (2001). Thurgood Marshall: His Speeches, Writings, Arguments, Opinions and Reminiscences. Chicago: Lawrence Hill Books.
- McCloskey, Robert G., and Sanford Levinson (2005). The American Supreme Court, 4th ed. Chicago: University of Chicago Press.
- Miller, Arthur S. (1985). Politics, Democracy and the Supreme Court: Essays on the Future of Constitutional Theory. Westport, CT: Greenwood Press.
- Tribe, Laurence (1985). God Save This Honorable Court: How the Choice of Supreme Court Justices Shapes Our History. New York: Random House.
- Zelermyer, William (1977). The Legal System in Operation. St. Paul, MN: West Publishing.
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