Judiciary and judicial institutions

The judiciary or judicial system is the system of courts local, state, and federal governments, responsible for interpreting the laws passed by the legislative branch and enforced by the executive. It constitutes a branch of government (in the wider sense), which administer justice in the name of the sovereign or state; it often serves as a mechanism for the resolution of disputes.

Judicial institutions of some kind are found in virtually all political systems, regardless of culture or level of development. These institutions perform the basic function of "rule-adjudication," or applying laws to individual cases. They also resolve social conflict, contribute to social control, legitimize regimes, and protect minority rights. Sometimes, judicial institutions participate actively in making public policy.

Judicial institutions are different from other political institutions in that they operate within the framework of the concept of justice. While different cultures have different views of justice, a few aspects of justice are nearly universal: law must be applied consistently, the severity of punishment should correspond to the severity of the offense, and punishment should be applied fairly. The distinctiveness of judicial institutions is largely attributable to the fact that they should not be influenced by "politics" in the same way that other institutions are influenced, so that they can make decisions independently in accordance with these standards of justice.

Two important "systems of justice" are the adversarial and the inquisitorial. In the former system, used in the United States, a neutral judge hears arguments from two opposing sides. This arrangement requires the existence of a large and well-trained body of lawyers, while the inquisitorial system, which places greater reliance on judges, requires a highly professionalized judiciary. Both systems can work well.

There are several different ways of classifying law. Natural law is contrasted with positive law (the former is divine or natural in origin, while positive law is made by humans); basic law supersedes statutory law; common law is the body of precedents made by courts; and civil and criminal law both involve disputes between parties--two private parties in civil cases, and the state against a criminal defendant in criminal cases.

The process through which judges are selected can have a significant impact on judicial behavior. Most systems attempt to blend judicial independence with some measure of political responsibility, although the balance between these goals is often unsettled. It is almost always difficult to remove judges simply because their rulings are unpopular.

One of the most important political problems encountered in the study of judicial institutions is the practice of judicial review. Political systems vary tremendously in the extent to which courts are allowed to overturn the decisions of legislatures and executives.

In some countries it is the Constitutional Court which is the final authority on the interpretation of the Constitution and all laws. Its main authority is to rule on whether or not laws that are challenged are in fact unconstitutional, i.e. whether or not they conflict with constitutionally established rights and freedoms. In the United States government, it is the Supreme Court which has the authority to interpret the federal Constitution and all statutes and regulations created. 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.

The possibility that courts will engage in policy making exists in virtually all systems, simply because interpreting the law often inescapably involves making policy choices. Because judges are normally not politically responsible, however, their role in making policy is controversial. Three responses to this problem include the principles of judicial restraint (the notion that judges should alter legislative and executive policy choices as little as possible); judicial activism (the notion that judges can properly act on their own values in interpreting the law); and the idea of judicial policy making as a stabilizing force (the notion that by modifying policies made by majoritarian institutions, courts "smooth" the path of policy change.

Main source: Marc Ethridge and Howard Handelman, Politics in a Changing World, manual, at <http://www.bedfordstmartins.com/ethridge_im/>.

Date: 2015-12-18; view: 716