Judiciary

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The judiciary (also known as the judicial system, judicature, judicial branch, Judiciative Branch, court or judiciary system) is the system of courts that interprets and applies law in legal cases.

Contents

Definition

The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary can also be thought of as the mechanism for the resolution of disputes. Under the doctrine of the separation of powers, the judiciary generally does not make statutory law (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. However, in some countries the judiciary does make common law.

In many jurisdictions 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 a higher norm, such as primary legislation, the provisions of the constitution, treaties or international law. Judges constitute a critical force for interpretation and implementation of a constitution, thus in common law countries creating the body of constitutional law.

History

See also Legal History.

This is a more general overview of the development of the judiciary and judicial systems over the course of history.

Roman judiciary

See also Roman law and Byzantine Law.

Archaic Roman Law (650-264 BC)

The most important part was Ius Civile (latin for "civil law"). This consisted of Mos Maiorum (latin for "way of the ancestors") and Leges (latin for "laws"). Mos Maiorum was the rules of conduct based on social norms created over the years by predecessors. In 451-449 BC, the Mos Maiorum was written down in the Twelve Tables. [1] [2] [3] Leges were rules set by the leaders, first the kings, later the popular assembly during the Republic. In these early years, the legal process consisted of two phases. The first phase, In Iure, was the judicial process. One would go to the head of the judicial system (at first the priests as law was part of religion) who would look at the applicable rules to the case. Parties in the case could be assisted by jurists. [4] Then the second phase would start, the Apud Iudicem. The case would be put before the judges, which were normal Roman citizens in an uneven number. No experience was required as the applicable rules were already selected. They would merely have to judge the case. [5]

Pre-Classical Roman Law (264-27 BC)

The most important change in this period was the shift from priest to praetor as the head of the judicial system. The praetor would also make an edict in which he would declare new laws or principles for the year he was elected. This edict is also known as praetorian law. [6] [7]

Principate (27 BC - 284 AD)

The Principate is the first part of the Roman Empire, which started with the reign of Augustus. This time period is also known as the "classical era of Roman Law" In this era, the praetor's edict was now known as edictum perpetuum, which were all the edicts collected in one edict by Hadrian. Also, a new judicial process came up: cognitio extraordinaria (latin for "extraordinary process"). [8] [9] This came into being due to the largess of the empire. This process only had one phase, where the case was presented to a professional judge who was a representative of the emperor. Appeal was possible to the immediate superior.

During this time period, legal experts started to come up. They studied the law and were advisors to the emperor. They also were allowed to give legal advise on behalf of the emperor. [10]

Corpus Iuris Civilis, 1607 Corpus iuris ciuilis lugdvni 1607.jpg
Corpus Iuris Civilis, 1607

Dominate (284-565 AD)

This era is also known as the "post-classical era of roman law". The most important legal event during this era was the Codification by Justinianus: the Corpus Iuris Civilus. [11] This contained all Roman Law. It was both a collection of the work of the legal experts and commentary on it, and a collection of new laws. The Corpus Iuris Civilus consisted of four parts:

  1. Institutiones: This was an introduction and a summary of roman law.
  2. Digesta/Pandectae: This was the collection of the edicts.
  3. Codex: This contained all the laws of the emperors.
  4. Novellae: This contained all new laws created.

Middle Ages

See also Church Law

During the late Middle Ages, education started to grow. First education was limited to the monasteries and abbies, but expanded to cathedrals and schools in the city in the 11th century, eventually creating universities. [12] The universities had five faculties: arts, medicine, theology, canon law and Ius Civile, or civil law. Canon law, or ecclesiastical law are laws created by the Pope, head of the Roman Catholic Church. The last form was also called secular law, or Roman law. It was mainly based on the Corpus Iuris Civilis, which had been rediscovered in 1070. Roman law was mainly used for "worldly" affairs, while canon law was used for questions related to the church. [13]

The period starting in the 11th century with the discovery of the Corpus Iuris Civilis is also called the Scholastics, which can be divided in the early and late scholastics. It is characterised with the renewed interest in the old texts.

Ius Civile

Early scholastics (1070 - 1263)

The rediscovery of the Digesta from the Corpus Iuris Civilis led the university of Bologna to start teaching Roman law. [14] Professors at the university were asked to research the Roman laws and advise the Emperor and the Pope with regards to the old laws. This led to the Glossators to start translating and recreating the Corpus Iuris Civilis and create literature around it:

  • Glossae: translations of the old Roman laws
  • Summae: summaries
  • Brocardica: short sentences that made the old laws easier to remember, a sort of mnemonic
  • Quaestio Disputata (sic et non): a dialectic method of seeking the argument and refute it. [15]

Accursius wrote the Glossa Ordinaria in 1263, ending the early scholastics. [16]

Late scholastics (1263 - 1453)

The successors of the Glossators were the Post-Glossators or Commentators. They looked at a subject in a logical and systematic way by writing comments with the texts, treatises and consilia, which are advises given according to the old Roman law. [17] [18]

Canon Law

Gratian Graciano.jpg
Gratian
Early Scholastics (1070 - 1234)

Canon law knows a few forms of laws: the canones, decisions made by Councils, and the decreta, decisions made by the Popes. The monk Gratian, one of the well-known decretists, started to organise all of the church law, which is now known as the Decretum Gratiani , or simply as Decretum. It forms the first part of the collection of six legal texts, which together became known as the Corpus Juris Canonici . It was used by canonists of the Roman Catholic Church until Pentecost (May 19) 1918, when a revised Code of Canon Law (Codex Iuris Canonici) promulgated by Pope Benedict XV on 27 May 1917 obtained legal force. [19] [20] [21]

Late Scholastics (1234 - 1453)

The Decretalists, like the post-glossators for Ius Civile, started to write treatises, comments and advises with the texts. [22] [23]

Ius Commune

Around the 15th century a process of reception and acculturation started with both laws. The final product was known as Ius Commune . It was a combination of canon law, which represented the common norms and principles, and Roman law, which were the actual rules and terms. It meant the creation of more legal texts and books and a more systematic way of going through the legal process. [24] In the new legal process, appeal was possible. The process would be partially inquisitorial, where the judge would actively investigate all the evidence before him, but also partially adversarial, where both parties are responsible for finding the evidence to convince the judge. [25]

Lady Justice (Latin: Justicia), symbol of the judiciary. Statue at Shelby County Courthouse, Memphis, Tennessee JMR-Memphis1.jpg
Lady Justice (Latin: Justicia), symbol of the judiciary. Statue at Shelby County Courthouse, Memphis, Tennessee

After the French Revolution, lawmakers stopped interpretation of law by judges, and the legislature was the only body permitted to interpret the law; this prohibition was later overturned by the Napoleonic Code. [28]

Functions of the judiciary in different law systems

In common law jurisdictions, courts interpret law; this includes 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. Common law decisions set precedent for all courts to follow. This is sometimes called stare decisis.

In civil law jurisdictions, courts interpret the law, but are prohibited from creating law, and thus do not issue rulings more general than the actual case to be judged. In other words, they do not set precedent. Jurisprudence does not necessarily play a similar role to case law. Courts can decide if they follow jurisprudence in a given case or not.

Country-specific functions In the [Courts of the United States|United States court system], the [Supreme Court of the United States|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 [United States federal courts|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 98% of litigation, [29] may have different names and organization; trial courts may be called "courts of common plea", appellate courts "superior courts" or "commonwealth courts". [30] 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. [31]

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.

In the People's 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 does. On the court sits a total of nine justices. This number has been changed several times.

Judicial systems by country

Japan

Japan's process for selecting judges is longer and more stringent than in various countries, like the United States and in Mexico. [32] Assistant judges are appointed from those who have completed their training at the Legal Training and Research Institute located in Wako. Once appointed, assistant judges still may not qualify to sit alone until they have served for five years, and have been appointed by the Supreme Court of Japan. Judges require ten years of experience in practical affairs, as a public prosecutor or practicing attorney. In the Japanese judicial branch there is the Supreme Court, eight high courts, fifty district courts, fifty family courts, and 438 summary courts. [33] [34]

Mexico

Justices of the Mexican Supreme Court are appointed by the President of Mexico, and then are approved by the Mexican Senate to serve for a life term. Other justices are appointed by the Supreme Court and serve for six years. Federal courts consist of the 21 magistrates of the Supreme Court, 32 circuit tribunals and 98 district courts. The Supreme Court of Mexico is located in Mexico City. Supreme Court Judges must be of ages 35 to 65 and hold a law degree during the five years preceding their nomination. [35]

United States

United States Supreme Court justices are appointed by the President of the United States and approved by the United States Senate. The Supreme Court justices serve for a life term or until retirement. The Supreme Court is located in Washington, D.C. The United States federal court system consists of 94 federal judicial districts. The 94 districts are then divided up into twelve regional circuits. The United States has five different types of courts that are considered subordinate to the Supreme Court: United States bankruptcy courts, United States Court of Appeals for the Federal Circuit, United States Court of International Trade, United States courts of appeals, and United States district courts. [36] [37]

Immigration courts are not part of the judicial branch; immigration judges are employees of the Executive Office for Immigration Review, part of the United States Department of Justice in the executive branch.

See also

Further reading

Related Research Articles

Marbury v. Madison, 5 U.S. 137 (1803), was a U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws, statutes, and some government actions that violate the Constitution of the United States. Decided in 1803, Marbury remains the single most important decision in American constitutional law. The Court's landmark decision established that the U.S. Constitution is actual "law", not just a statement of political principles and ideals, and helped define the boundary between the constitutionally separate executive and judicial branches of the American form of government.

The separation of powers is a model for the governance of a state. Under this model, a state's government is divided into branches, each with separate, independent powers and responsibilities so that powers of one branch are not in conflict with those of the other branches. The typical division is into three branches: a legislature, an executive, and a judiciary, which is the trias politica model. It can be contrasted with the fusion of powers in parliamentary and semi-presidential systems, where the executive and legislative branches overlap.

Judicial independence is the concept that the judiciary should be independent from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government or from private or partisan interests. Judicial independence is important to the idea of separation of powers.

Court judicial institution with the authority to resolve legal disputes

A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law. In both common law and civil law legal systems, courts are the central means for dispute resolution, and it is generally understood that all people have an ability to bring their claims before a court. Similarly, the rights of those accused of a crime include the right to present a defense before a court.

Jus commune or ius commune is Latin for "common law" in certain jurisdictions. It is often used by civil law jurists to refer to those aspects of the civil law system's invariant legal principles, sometimes called "the law of the land" in English law. While the ius commune was a secure point of reference in continental European legal systems, in England it was not a point of reference at all. The phrase "the common law of the civil law systems" means those underlying laws that create a distinct legal system and are common to all its elements.

The judiciary of Germany is the system of courts that interprets and applies the law in Germany.

The judicial system of Ukraine is outlined in the 1996 Constitution of Ukraine. Before this there was no notion of judicial review nor any Supreme Court since 1991's Ukrainian independence. when it started being slowly restructured.

Judicial activism refers to judicial rulings that are suspected of being based on personal opinion, rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism and the specific decisions that are activist are controversial political issues. The question of judicial activism is closely related to constitutional interpretation, statutory construction, and separation of powers.

Judicial system of Singapore National court system

The full Judicial power in Singapore is vested in the Supreme Court as well as subordinate courts by the Constitution of Singapore. The Supreme Court consists of the Court of Appeal and the High Court. The Court of Appeal exercises appellate criminal and civil jurisdiction, while the High Court exercises both original and appellate criminal and civil jurisdiction. The Chief Justice, Judges of Appeal, Judicial Commissioners and High Court Judges are appointed by the President from candidates recommended by the Prime Minister. The prime minister must consult with the Chief Justice before recommending the judges. The current Chief Justice is Sundaresh Menon.

Supreme Court of Russia National supreme court

The Supreme Court of the Russian Federation is a court within the judiciary of Russia and the court of last resort in Russian administrative law, civil law and criminal law cases. It also supervises the work of lower courts. Its predecessor is the Supreme Court of the Soviet Union.

The Indian Judiciary administers a common law system in which customs, securities and legislation, all codify the law of the land. It has in fact, inherited the legacy of the legal system established by then the colonial powers and the princely states since the mid-19th century, and has partly retained characteristics of practices from the ancient and medieval times.

Legal cultures are described as being temporary outcomes of interactions and occur pursuant to a challenge and response paradigm. Analyses of core legal paradigms shape the characteristics of individual and distinctive legal cultures. "Comparative legal cultures are examined by a field of scholarship, which is situated at the line bordering comparative law and historical jurisprudence."

Judiciary of New York (state) judiciary

The Judiciary of New York is the judicial branch of the Government of New York, comprising all the courts of the State of New York

Judicial review is a process under which executive or legislative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompatible with a higher authority: an executive decision may be invalidated for being unlawful or a statute may be invalidated for violating the terms of a constitution. Judicial review is one of the checks and balances in the separation of powers: the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority. The doctrine varies between jurisdictions, so the procedure and scope of judicial review may differ between and within countries.

Judicial independence in Singapore Judicial independence in the nation

Judicial independence is protected by Singapore's Constitution, statutes such as the State Courts Act and Supreme Court of Judicature Act, and the common law. Independence of the judiciary is the principle that the judiciary should be separated from legislative and executive power, and shielded from inappropriate pressure from these branches of government, and from private or partisan interests. It is crucial as it serves as a foundation for the rule of law and democracy.

Supreme Court of Albania

The Supreme Court of the Republic of Albania is the highest court of Albania and is the final court of appeal in the judicial system of Albania. It is composed of seventeen judges, the Chief Justice and sixteen Members.

Medieval Roman law is the continuation and development of ancient Roman law that developed in the European Late Middle Ages. Based on the ancient text of Roman law, the Corpus iuris civilis, it added many new concepts, and formed the basis of the later civil law systems that prevail in the vast majority of countries. Some exceptions are, for example, common law countries of the English-speaking world

Scots law Hybrid legal system of Scotland, containing civil law and common law elements

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Judiciary of Saudi Arabia

The judiciary of Saudi Arabia is a branch of the government of Saudi Arabia that interprets and applies the laws of Saudi Arabia. The legal system is based on the Islamic code of Sharia, with its judges and lawyers forming part of the country's religious leadership or ulama. There are also non-Sharia government tribunals which handle disputes relating to specific royal decrees. Final appeal from both Sharia courts and government tribunals is to the King of Saudi Arabia and all courts and tribunals follow Sharia rules of evidence and procedure.

Randall Christoph Herman Lesaffer is a Belgian historian of international law. He has been professor of legal history at Tilburg University since 1999, where he also served as dean of Tilburg Law School from 2008 to 2012. His work focuses on the Early Modern Age.

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