Judges

11 Key excerpts on "Judges"

• 

  eBook - ePub

  English Legal System

  • Ryan Murphy, Frances Burton(Authors)
  • 2020(Publication Date)
  • Routledge

    (Publisher)

  Where Acts of Parliament (or secondary law) are unclear or could bear multiple meanings, Judges are called upon to determine the meaning of the law. In this sense, the judiciary gives an abstract interpretation of what the statutory provisions mean. Judges are also responsible, where juries are involved, for explaining the applicable law to the jury. Apply the law Once the facts have been established and an interpretation of the law given, it is normally the judge’s role to apply that interpretation to the specific facts in order to resolve the legal issue in question. They must also apply sentencing guidelines in the case of criminal trials. Resolve disputes It should not be forgotten that Judges interpret or apply the law in cases where parties are in dispute. In this narrow sense, Judges presiding over the courts to which applications are made provide a means of independently settling disputes. In a broader sense, and following the Woolf reforms to the civil justice system, Judges are also there to encourage parties to engage with dispute resolution mechanisms short of litigation (such as mediation or arbitration), which are now at the core of dispensation of justice in all westernised jurisdictions grappling with resolution of legal disputes. Create law Through the common law in particular, Judges make law. Their interpretation of statutes can also be considered as a form of law-making. There are distinct chapters in this textbook on Judges’ interpretation of the law and on the case decision method by which Judges make law. As Lord Denning put it ‘[Judges] every day make law, though it is almost heresy to say so.’4 Adjudicate on procedure The English Legal System has a sophisticated and complex body of rules relating to court procedure and a whole branch of law related to rules surrounding evidence. Judges must also adjudicate on these satellite issues as and when they arise in given cases. Check on executive powers Judges can also be called upon to adjudicate on Government action and act as a check that other branches of the state have not exceeded their powers. This is primarily achieved through the system of judicial review. This control of state power is a constitutional check that maintains the proper separation of powers and preserves the rule of law.

  Sign up to read

  Learn more about book
• 

  eBook - ePub

  Constitutional and Administrative Law

  • Hilaire Barnett(Author)
  • 2019(Publication Date)
  • Routledge

    (Publisher)

  The court structure and law fulfils this need. 7 Disputes may be between individuals over matters of private law such as the validity of marriage or the validity of a contract or property transaction. Disputes may also involve public law matters where the individual is aggrieved by a decision or act of a public body and seeks to challenge that act or decision. Statistically, it is the criminal law which accounts for the majority of cases before the courts, with the state prosecuting a suspect for an alleged breach of the law. 8 Interpreting and applying the law In the settlement of disputes, one of the principal functions of Judges is applying the law as laid down in Acts of Parliament or by common law. This, for the most part, is straightforward, but when a case is appealed and reaches the higher courts it is because there is a dispute about the meaning of the law and how it should apply to a given factual situation. It is here that the Judges must, through the process of statutory interpretation and the doctrine of precedent (for details of which see below) interpret what Parliament’s intention was when passing the Act or interpret the precedent case law on a particular matter. In both cases the process of interpretation and application results in the development of the law. On the interpretation and development of the law see further below at pages 574 to 582. Judicial review of administrative action Another major role of the judiciary is ensuring that public bodies who exercise powers conferred by Parliament are kept within those powers. Allied to this is the insistence by the courts that public bodies respect the rules of natural justice and fairness in the exercise of their powers. This jurisdiction is judicial review which is essential to the maintenance of the rule of law and enforcing Parliament’s will

  Sign up to read

  Learn more about book
• 

  eBook - ePub

  The Judicial Branch of the Federal Government

  Purpose, Process, and People

  • Britannica Educational Publishing, Brian Duignan(Authors)
  • 2009(Publication Date)
  • Britannica Educational Publishing

    (Publisher)

  When the judiciary does decide a controversy, a body of regulations governs what parties are allowed before the court, what evidence will be admitted, what trial procedure will be followed, and what types of judgments may be rendered. Judicial proceedings involve the participation of a number of people. Although the judge is the central figure, along with the parties to the controversy and the lawyers who represent them, there are other individuals involved, including witnesses, clerks, bailiffs, administrators, and jurors when the proceeding involves a jury.

  The stated function of the courts is the authoritative adjudication of controversies over the application of laws in specific situations. However, it is unavoidable that courts also make law and public policy, because Judges must exercise at least some measure of discretion in deciding which litigant claims are legally correct or otherwise most appropriate. Lawmaking and policy making by courts are most evident when powerful national supreme courts (e.g., those in the United States, Germany, and India) exercise their power of judicial review to hold laws or major government actions unconstitutional. They also can occur, however, when judiciaries are behaving as administrators, even when they are merely ratifying agreements reached out of court. Patterns of settlement for suits between employers and employees may be more favourable to employees than formal law would seem to require, because they are influenced by de facto changes in the law that may result from the decisions by juries or trial Judges who may regularly be more sympathetic to workers. Formal laws regulating child custody or financial settlements in divorce cases can similarly be altered over time as juries process the claims of the litigants before them in persistent ways.

  After a court decision has been made, it may or may not require enforcement. In many cases the parties accept the judgment of the court and conform their behaviour to it. In other cases a court must order a party to cease a particular activity. The enforcement of such orders is carried out by the executive branch and may require funding from the legislative branch.

  Sign up to read

  Learn more about book
• 

  eBook - ePub

  AS Law

  • Andrew Mitchell(Author)
  • 2008(Publication Date)
  • Routledge-Cavendish

    (Publisher)

  8 Judges This topic enables you:

  • To broaden your knowledge of the courts and how they work.
  • To identify the different types of Judges in the courts, their respective roles and how they are selected, appointed, trained and removed, taking into account recent changes in the Constitutional Reform Act 2005.
  • To recognise the two branches of the legal profession and the traditional bias in judicial appointments towards barristers (a position that is now changing).
  • To understand the theory of the ‘separation of powers’ and the relationship of the judiciary to the other constitutional powers in practice.
  • To supplement earlier knowledge of the doctrine of judicial precedent and the process of statutory interpretation, taking into account the potential for judicial law-making.

  The judge is perhaps the most visible expression of law in the English legal system. In their wigs and gowns for ceremonial occasions or at the head of the court, Judges are often depicted as representing the full majesty of the law. As Berlins and Dyer (2000) have commented: ‘The English judge … is, to some people, the awesome embodiment of wisdom, independence and impartiality in a free society. To others he is an elderly, remote, crusty figure wearing ridiculous fancy dress, speaking strange jargon and holding views more appropriate to the nineteenth century.’ The latter view reflects the suspicion that the background of the Judges means that they are, in some senses, ‘out of touch’ with society. Nevertheless, there have been many famous, and many great, Judges and, as this chapter indicates, some have had a profound influence on the law.

  THE ROLE OF THE JUDGE

  The role of the judge differs

  Sign up to read

  Learn more about book
• 

  eBook - PDF

  Judicial Process

  Law, Courts, and Politics in the United States

  • David Neubauer, Stephen Meinhold(Authors)
  • 2016(Publication Date)
  • Cengage Learning EMEA

    (Publisher)

  Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. Judges At Work The formal powers of Judges extend throughout the judicial process. In criminal cases, the accused face Judges whenever decisions affecting their futures are made. Judges set bail; rule on pretrial motions to suppress evidence; accept pleas of guilty; and, after conviction, set punishment. In civil cases, the parties are not necessarily required to go to court, because they can negotiate a settlement on their own. Still, the judge is often called on to rule on motions; participate in settlement discussions; and, if there is a trial, rule on the admissibility of evidence. If the case is appealed, the Judges of the reviewing court ques-tion the attorneys during the hearings; read the briefs; and, most importantly, decide whether the decision of the lower court should be affirmed or reversed. The work of trial Judges differs dramatically from that of their peers on the appellate courts. The appellate courts are covered in depth in later chapters; hence, the following discussion focuses on trial Judges. Trial Judges at Work Although trial court Judges’ work is much more varied, we think of them primarily as presid-ing at trials. During a trial, serving as an umpire is the judge’s primary task: He or she mainly reacts to the activities of the lawyers in his or her courtroom. Judges are expected to be neu-tral and not intervene to the undue advantage of either side. Because no legal code can fur-nish clear, unambiguous rules for every situation, Judges exercise discretion in determining how the law applies to the particular facts of the case. Most case dispositions result not from a jury verdict but from the voluntary actions of the parties: Criminal defendants plead guilty, and civil defendants negotiate a settlement. Thus, negotiating activities form a common part of the judge’s workday.

  Sign up to read

  Learn more about book
• 

  eBook - ePub

  Politics: A Complete Introduction: Teach Yourself

  • Peter Joyce(Author)
  • 2015(Publication Date)
  • Teach Yourself

    (Publisher)

  ‘Judicial review in the UK comprises an assessment of a decision made by a public body (which includes government departments, local authorities, tribunals. Or any other organization that exercises a public function …)… The basis on which judicial intervention is founded is the doctrine of ultra vires which suggests that a public body has acted beyond its authorized limits … In countries that possess codified constitutions, the judiciary are responsible for ensuring that the constitution is upheld. Senior courts (such as the American Supreme Court or the French Conseil Constitutionnel) perform this function’ (Joyce and Wain, 2010: 112–113).

  Joyce, P. and Wain, N. (2010) A Dictionary of Criminal Justice. London: Routledge.

  However, in the UK, the 1998 Human Rights Act provided the judiciary with the ability to warn parliament that a piece of legislation was contrary to the European Declaration of Human Rights. The Courts were not able to annul or strike down legislation that they considered to be contravening the Declaration but, instead, were able to issue a Declaration of Incompatibility which urged the government and parliament to reconsider the issue. We considered this matter in Chapter 9 .

  Judicial interpretation

  Key idea (4)

  The role of Judges may sometimes extend beyond administering the law and entail them determining its content. This is known as judicial law making (or judicial activism).

  In theory, the role of Judges is to apply the law to the matter that comes before them. However, it is often argued that Judges go beyond this role and effectively determine its contents, which are subsequently binding on courts dealing with similar cases. This situation arises as a result of judicial interpretation of such documents that may effectively give Judges the ability to act in a law-making capacity. Judges differ, however, in the principles which they apply when interpreting the law or constitution. These are now discussed.

  THE STRICT LETTER OF THE LAW

  Some Judges rigidly apply the wording of the statute or constitution to the case that is before them. The judge’s interpretation, therefore, is little more than the citation of existing sources as the basis for the decision which they reach. A case is determined according to the strict letter of the law. This strict interpretation view of the role of the judiciary tends to promote a conservative approach to judicial interpretation. It suggests that issues that are not contained in a country’s law or constitution cannot be inserted into it by Judges. Those who endorse such a view regard this as either the work of legislators or as a matter which should be responded to by the process of constitutional amendment.

  Sign up to read

  Learn more about book
• 

  eBook - PDF

  Toward an Informal Account of Legal Interpretation

  • Allan C. Hutchinson(Author)
  • 2016(Publication Date)
  • Cambridge University Press

    (Publisher)

  Their mandate was to apply the law and to rest content with that; justice would best be served by such an institutional separation of powers and responsibilities. While this humble depiction of the judicial role – “it’s my job to call balls and strikes and not to pitch or bat” – will strike a reassuring chord with some, it fails to understand the history and nature of the judicial role generally. Judges are much more than umpires. Indeed, the whole analogy between judging and umpiring is misleading and inaccurate. As far as their judicial duties go, history demonstrates that Judges are very much part of the political action. It is less about whether they change the rules than about how they do so. Staying with the baseball analogy, 2 John Roberts’ opening statement before the Senate Judiciary Committee, USA Today, www.usatoday.com/news/washington/2005-09-12-roberts-fulltext_x.htm. the good judge 153 while some umpires claim to call balls and strikes “as they see ’em”, others assert that “they ain’t nothin’ til I call ’em.” People might be fated to play a baseball of the Judges’ choosing, but the Judges are also very much part of the game; they play by as well as change the rules as they go along. In legal terms, not only what counts as ‘balls’ and ‘strikes’, but also what counts as ‘baseball’ changes over time. And it is the Judges, for better and worse, who are the purveyors and guardians of many of these changes. That being said, if Judges are not umpires, they are not godly figures either. They have no especial, let alone divine insight into the meaning of legal texts or the nature of social justice – judgeliness is not next to godliness. There is no way to simply read off the meaning of laws, especially constitutions, in an impersonal exercise of professional tech- nique without resort to larger and contested issues of social and political values.

  Sign up to read

  Learn more about book
• 

  eBook - ePub

  Judicial Review of Immigration Detention in the UK, US and EU

  From Principles to Practice

  • Justine N Stefanelli(Author)
  • 2020(Publication Date)
  • Hart Publishing

    (Publisher)

  7

  The Business of Judging

  I. INTRODUCTION

  T his chapter takes its name from a collection of essays by Lord Bingham reflecting on 20 years of his life as a judge.1 It picks up some of the themes explored in Bingham’s book by examining whether the role of Judges and deference impact the way that Judges consider the facts and analyse the law during judicial review. Broadly, this chapter concludes two things. First, Judges who view themselves as playing a key role in the safeguarding of liberty undertake judicial review in a more careful and meaningful manner. Secondly, though deference has traditionally played a role in judicial review of state action, and continues to play a role today, there is no evidence that it has been improperly applied in any of the three jurisdictions under examination.

  II. Judges AS FACT-FINDERS, REVIEWERS OR LAW-MAKERS

  Various scholars have discussed the different roles that Judges might play.2 Which role Judges will perform depends on a number of factors, such as the environment in which they operate, the level of discretion that they enjoy, the specific characteristics of the legal and social systems in which they operate and their education.3

  When hearing habeas corpus applications, US federal district Judges must determine the facts in accordance with the law. This reflects the primary role of district courts as trial courts. In contrast, the role of the Administrative Court in judicial review is normally limited to a determination of whether the state has acted reasonably. Similarly, the task of the CJEU in the preliminary reference procedure is not to determine facts, but rather to interpret the law. However, these courts’ official functions may not necessarily correspond to the behaviour of the courts in individual cases of detention review. Instead, the way in which Judges view their own roles may differ in a way that reflects the level of importance they attach to these sorts of hearings and, ultimately, the right to liberty. This impacts the way they reason their judgments and arrive at conclusions. This section considers the role played by the Judges as demonstrated by the pool judgments, and reflects upon the extent to which such roles explain case outcomes.

  Sign up to read

  Learn more about book
• 

  eBook - ePub

  Power to the People

  • Laura Ingraham(Author)
  • 2008(Publication Date)
  • Regnery

    (Publisher)

  The “political” branches—the legislature and the executive—are the ones that are supposed to make political decisions, because they are accountable to the people. Judges aren’t. So they are supposed to put politics and their own personal preferences aside and uphold the laws the people have enacted through the process of representative government.

  To decide cases according to the law, justices of the Supreme Court must decide whether lower federal courts have ruled correctly in cases involving federal laws. Supreme Court justices, since Marbury v. Madison

  9

  in 1803, are also called upon to look at state and federal laws and decide whether or not those laws are prohibited by the Constitution.

  When they leave home for work at the courthouse, Judges are supposed to leave behind questions such as: “What law would be best?” “How can I help the underprivileged?” Or, “What would maximize societal happiness?” Instead, their job is to ask: “What does the law mean?” “How does the precedent apply?” And, “What does the Constitution say about the matter?” A good judge—a restrained judge—does not set out to make the world a better place. A restrained judge simply does his job, like a neutral umpire. Chief Justice John Roberts said it well during his confirmation hearings before the Senate: “Umpires don’t make the rules, they apply them,” and the umpire’s job is “to call balls and strikes and not to pitch or bat.”

  You can tell you’ve got an unrestrained judge when he derisively dismisses “hypertechnical reliance upon statutory provision” 10 (the Florida Supreme Court in the 2000 election); when he refers to his own “conscience” repeatedly in decisions (California’s Harry Pregerson on the 9th Circuit); and when he writes things like, “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”11

  Sign up to read

  Learn more about book
• 

  eBook - ePub

  The Rule of Law and the Separation of Powers

  • Richard Bellamy(Author)
  • 2017(Publication Date)
  • Routledge

    (Publisher)

  There are eases in law, as in baseball, where the officials are explicitly granted discretion—the judge, for example, in fixing sentences and in certain other remedial or procedural matters, and the umpire in calling official times out and in certain disciplinary matters. This discretion is exercised “within limits” and “cannot be abused,” but we would not say that the participants were entitled to any particular decision on such a question. I have ignored throughout the question of whether the judge, the jury, or the iudex has discretion in determining “what happened,” not because I want to say they do, but because there is no space in which to consider the question. Similarly, I wish to exclude the role of the Supreme Court in deciding constitutional cases from the scope of this essay. There is distinguished opinion that this judicial function is unique, and consideration of the alleged differences would not be manageable here. 7 In what follows I am assuming one similarity : that law, like games and contests, is an arrangement of entitlements, and I am attempting to offer a picture of judicial practice consistent with that assumption. I do not believe that academic lawyers who speak of judicial discretion intend to deny that law is such an arrangement (except possibly as indicated in paragraph 9 below), although, of course, discretion in law as in games means pro tanto an absence of standards and thus of entitlements. The inconsistency arises because they have been unwilling to recognize anything but the rules produced by legislatures and courts as standards, and it has led to the problems and tensions mentioned in paragraph 10 below. 8 There is, of course, an important interaction between judicial recognition of policies and principles and the institutional or public sources of such standards

  Sign up to read

  Learn more about book
• 

  eBook - PDF

  Law and Judicial Duty

  • Philip Hamburger, Philip HAMBURGER(Authors)
  • 2009(Publication Date)
  • Harvard University Press

    (Publisher)

  sures imposed by James and other monarchs, the evolving conception of ju-dicial office and authority was what might be expected in an era dominated by claims about lawmaking authority. In reaction to the claims of sover-eign bodies (monarchical or parliamentary) to make law through their exer-cise of will, lawyers could not help but pay closer attention to the distinc-tive nature of the Judges’ office and their exposition of law. It was not simply that the exposition of law was an exercise of judgment, which was an office belonging to the Judges. In addition, the office of a judge was in-creasingly understood to concern cases. Defined in contrast to lawmaking, which was an exercise of will in imposing general rules, the office of judging seemed at its core to involve the exercise of judgment in particular cases, and these therefore became the circumstances in which Judges could ex-pound the law, including the constitution, with the authority of their office. Judges traditionally could expound law not only in cases but also more generally in consultation with other Judges. The Judges of the common law courts sometimes assembled to consult about advisory opinions or sim-ply to discuss and resolve particularly knotty problems. Edward Coke still revered the authority of the Judges at these discussions and claimed that their “answers and resolutions, although they were not enacted by author-ity of Parliament . . . yet, being resolved unanimously by all the Judges of England, and Barons of the Exchequer, are for matters in law of high-est authority next unto the Court of Parliament.” 16 The Judges, however, 226 Judicial Duty 16 Coke, Institutes, 2: 618. Coke often elevated “off-the-cuff remarks with which he agreed” to the status of “resolutions.” W. J. Jones, Politics and the Bench: The Judges and the Origins of the English Civil War, 51 (London: Allen and Unwin, 1971).

  Sign up to read

  Learn more about book