Judiciary
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In law, the judiciary ( known as the judicial system or judicature) is the system of courts which administer justice in the name of the sovereign or state, a mechanism for the resolution of disputes. It usually consists of a court of a final appeal (called the 'supreme court' or 'constitutional court') and other lower courts.
The term is also used to refer collectively to the judges, magistrates and other adjudicators who form the core of a judiciary (sometimes referred to as a "bench"), as well as the support personnel who keep the system running smoothly. Under the doctrine of the separation of powers, 'the judiciary is the branch of government primarily responsible for interpreting the law'[citation needed]. It construes the laws enacted by the legislature.
- In common law jurisdictions or provinces, courts interpret law, including constitutions, statutes, and regulations. They also make law 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 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 Conseil d'État 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.
It is said that the famed Byzantine Emperor Justinian had the Corpus Juris Civilis compiled and all other decisions by jurists burned to create certainty in the law. Again in the 19th century, French legal scholars at the time of the development of the Code Napoléon advocated the same kind of approach — it was believed that since the law was being written down precisely, it should not need interpretation; and if it did need interpretation, it could be referred to those who wrote the code. Napoleon, who was an advocate of this approach, felt that the task of interpreting the law should be left with the elected legislature, not with unelected judges. This contrasted with the pre-revolutionary situation in France, where unelected 'parliaments' defending the interests of the nobility would often slow the enforcement of royal decisions, including much needed reforms.
However, this idea was found difficult to implement in practice. 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 Cour de cassation or the Conseil d'État 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, though these legal scholars sometimes influence judicial decisionmaking. So-called "Socialist" law adopted the status of civil law, but added to it a new line of thought derived from Communism — the interpretation of the law is ultimately political, and should serve the purposes of Communism, and hence should not be left to a non-political organ.
[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.
