Judiciary
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The judiciary (also known as the judicial system or judicature) is a coequal branch of government. It is the only branch that is supposed to be totally impartial and hence apolitical. The judiciary forms a system of courts which 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 can never make or enforce law, that being the realm of the legislative and executive branches respectively, but rather, if there is a dispute, it interprets and applies the law to the facts of each case. Unlike the legislative branch which can make, repeal and amend law at will according to its own rules, the judiciary can never make or amend law, rather only when a statute or executive order is found via judicial review to be in violation of a constitutional provision is the judiciary bound to strike it or part of it down. If a statute is found to be unconstitutional, it is left for the legislative branch to come up with another legislation dealing with the issue which is always presumed constitutional by the judiciary.
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.
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.
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[edit] Various functions
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- In common law jurisdictions or provinces, courts interpret law which encompasses constitutions, statutes, regulations and case law. As magistrates interpret the law, they are not expected to base their decisions on personal preferences, instead they are required by oath to determine the outcome of each case based upon the most reasonable and impartial, though not necessarily literal, interpretation of the text in question as well as on the resolution of prior similarly situated cases i.e. case law. In some instances, common law magistrates do not interpret statutory language per se but case law directly as applicable. The tort of negligence for example is not entirely derived from statute in most common law jurisdictions but mostly from previously decided cases. Therefore only in some rare instances do judges set precedent which nevertheless may be overturned by the passage of new legislation on the issue or by yet a latter decision.
- In civil law jurisdictions, courts interpret the law, but do not, at least in theory, consider previous outcomes from the same jurisdiction in similarly disputed situation as guiding. Therefore, civil law rulings only apply to the case at hand. The immediate effect of bounded rulings is the great volume of cases with the same merits so that in practice jurisprudence ends up playing the same role in civil law as does case law in common law jurisdictions.
Differences can be seen by comparing United States, France and the People's Republic of China judiciary systems:
- in the United States government, the Supreme Court is the final authority on the interpretation of the federal Constitution and all statutes and regulations created pursuant to it;
- 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 PRC, 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.
[edit] History
After the French Revolution, lawmakers curtailed judicial independence, and the legislature was also permitted to interpret the law; this infringement of separation of power due mainly to legislative impartially was later overturned by the Code Napoléon.[3]
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 have the same independence to 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 precedence. 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 both legal systems, judges are not supposed to make new law; although their rulings sometimes may seem to have that effect; instead they merely interpret the intents of "the Legislator." The role of interpretation is traditionally approached more conservatively in civil law jurisdictions than in common law jurisdictions. In the civil law system when existing statutes fail to deal with a unique situation, judges may delay final judgments until they are guided by new legislation even if a quick resolution would be more desirable than a delay; this contrast sharply with courts of equity where the judge has the greatest room to decide outcome based on the principle of fairness instead of, in the case of civil law, on statutory language mostly, or in the case of common law, statutory language and previous outcomes.
[edit] See also
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Look up judiciary in Wiktionary, the free dictionary. |
[edit] 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.
[edit] Footnotes
- ^ 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.”
- ^ Cappelletti, Mauro et al. The Italian Legal System, page 150 (Stanford University Press 1967).
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