Role of Judiciary

10 Key excerpts on "Role of Judiciary"

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  Encyclopedia of Crime, Law Enforcement, Courts, and Corrections

  • Anne Wade(Author)
  • 2023(Publication Date)
  • Society Publishing

    (Publisher)

  While deciding the disputes that come before it, the judges interpret and apply laws. Every law needs a proper interpretation for getting applied to every specific case. This function is performed by the judges. The law means what the judges interpret it to mean. 10.12.3. Role in Law-Making The judiciary also plays a role in law-making. The decisions given by the courts really determine the meaning, nature, and scope of the laws passed by the legislature. The interpretation of laws by the judiciary amounts to law- making as it is these interpretations which really define the laws. Moreover, ‘the judgments delivered by the higher courts, which are the Courts of Records, are binding upon lower courts (Vasilenko-Zakharova and Zubach, 2022). The latter can decide the cases before them based on the decisions made by the higher courts. Judicial decisions constitute a source of law. Encyclopedia of Crime, Law Enforcement, Courts, and Corrections 294 10.12.4. Equity Legislation Where a law is silent or ambiguous or appears to be inconsistent with some other law of the land, the judges depend upon their sense of justice, fairness, impartiality, honesty, and wisdom for deciding the cases. Such decisions always involve law-making. It is usually termed as equity legislation. 10.12.5. Protection of Rights The judiciary has the supreme responsibility to safeguard the rights of the people. A citizen has the right to seek the protection of the judiciary in case his rights are violated or threatened to be violated by the government or by private organizations or fellow citizens. In all such cases, it becomes the responsibility of the judiciary to protect his rights of the people. 10.12.6. Guardian of the Constitution The judiciary acts as the guardian of the Constitution. The Constitution is the supreme law of the land, and it is the responsibility of the judiciary to interpret and protect it.

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  The Constitution of New Zealand

  A Contextual Analysis

  • Matthew SR Palmer, Dean R Knight(Authors)
  • 2022(Publication Date)
  • Hart Publishing

    (Publisher)

  7

  Judiciary

  Introduction – Rule of Law and Forms of Law – Judiciary as an Institution – Judicial Independence and Accountability – Conclusion

  I. INTRODUCTION

  T he judicial branch of government decides what the law means and how it applies to any particular case brought to court. In doing that, judges make law: the ‘common law’. That simple description indicates what is different about the judicial function compared with the legislative and the executive functions. The power of interpreting law, and creating common law, can be significant. But the judiciary’s powers are exercised in the specific context of individual cases. The judges do not initiate cases; they judge the cases brought to court. They must give reasons for, and put their names to, each decision. A court’s decision is always subject to at least one appeal as of right, and the senior appellate courts are composed of panels of judges. As we saw in the last chapter, court decisions can be overridden by legislation if Parliament chooses.

  In this chapter, consistent with our emphasis on function over form, we start with the adjudicative function of judges and the rule of law. We then turn to the judiciary as an institution within New Zealand’s constitutional system, including its structure and processes, as well as the daily practice of what judges do. Finally, we canvass aspects of the reality of judicial independence and judicial accountability in New Zealand.

  II. THE RULE OF LAW AND FORMS OF LAW

  The question ‘what is law’ is as old as law itself. In simple terms we think of it as publicly stated rules about human behaviour that are enforced by state-imposed sanctions. In reality there is a continuum of sorts. There are many sources of expectations of human behaviour, including those formed and expressed by the evolution of social norms and explicitly demanded by different groups within a society. Here, we look at the different ways the courts determine the nature and meaning of law in the course of adjudication. First, we explain the rule of law as a constitutional principle in New Zealand.

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  The Development of Human Rights Law by the Judges of the International Court of Justice

  • Shiv R.S. Bedi(Author)
  • 2007(Publication Date)
  • Hart Publishing

    (Publisher)

  Part I Perspective: Legislative Role of the Judge and Human Rights Law 2 Legislative Role of the Judge: A Vital Role in the Life of the Law Judgment is a process of mind that some claim to know and others continue to discover. Each judgment is either a step forward or a step backward in the development of law. As a result, since each judgment is the product of the minds of several individuals—how each understands and interprets the law—judges cannot avoid being vital force in the life of the law. (Judge Manfred Lachs 1 ) The Jurisprudence of the Court develops and strengthens the law concerning human rights: Moreover, apart from the legal attribute of binding obligations which can now be said to be associated with human rights, the International Court of Justice has not hesi-tated to refer to the general concept of human rights in its judgments whenever an opportunity has suitably offered itself in a case brought before the Court. Again, if the Court has ever omitted to refer to the concept of human rights or failed fully to deal with it in a case, the Members of the Court have, at no point, failed to elaborate that aspect in their independent or separate supporting opinions, or even give vent to their thinking in dissenting opinions which fact is quite remarkable. 2 (Judge Nagendra Singh) The above words of Judge Lachs (Poland), a former President of the International Court of Justice were uttered during an address delivered at the Syracuse University College of Law on 30 September 1982. I have chosen these words at the outset and italicized them for their plain truth: ‘ judges cannot avoid being a vital force in the life of the law .’ Whether in enacting the law or applying it, judges will apply reason to unearth any underlying source(s) of law as part of the process of finding the rules to be applied. Any process of legislation takes fully into consider-ation all existing relevant judicial precedents on the enactment in question.

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  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.

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  Introduction to Criminal Psychology

  • Anne Wade(Author)
  • 2020(Publication Date)
  • Society Publishing

    (Publisher)

  After the evidence has been presented to the courts, the judge responsible for making the decision, has the responsibility of evaluating the offense committed and making a fair judgement. In summary, the Judicial system has the responsibility of doing thorough research to obtain enough evidence which will guide the judge in coming up How The Judiciary Works? 131 with a fair ruling of the case. This is done by ensuring that the judge evaluates the case and refers to the constitution, which is a collection of the nation’s laws and the required punishments to the law break. If the offense the judge is dealing with does not have a punishment stated in the constitution, the judge discusses the case with fellow legal experts, reviews the evidence presented to them, reviews the records of all the court proceedings which have been held during all the period the suspect was being heard and then makes a fair judgement. This is quite evident that the judicial system prevents wrongful judgement to the innocent individuals and ensures that the right punishment is administered to the one found guilty of the offense. In some cases, the Judiciary is responsible for protecting the witnesses who must testify in a court of law and help in the making of a fair judgement. For instance, in a court proceeding which deals with the accusations of a powerful individual for a certain crime, be it a criminal offense or a civil offense; the convincing of witnesses to testify against the powerful people is quote hard. This is where the judicial system always has to prove it legitimacy to the entire society; that is, prove that they will not be influenced by politics or the power of the suspect in making the wrong judgement. Hence, the witnesses must be protected and assured of their security and the security of their families.

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  Jewish and Israeli Law - An Introduction

  • Shimon Shetreet, Walter Homolka(Authors)
  • 2021(Publication Date)
  • De Gruyter

    (Publisher)

   Sec. 27(a), Courts Law 1984.  Guideline 60. This regulation applies only to the lower courts. 232 Chapter 6: Judicial Role in Society pertise in certain areas of the law. Another point to be taken into account in the assignment of cases is consideration of a fair reflection of social classes, ethnic and religious groups, and ideological inclinations. It is particularly important in sensitive cases for panels to be either altogether neutral or balanced.⁹⁹ As Lord Hailsham said in his Lionel Cohen Lecture,¹⁰⁰ there is a continuous tension between judicial independence and public accountability of judges in a democracy. This tension should be reconciled by the exercise of wisdom and good judgment so that the proper balance between these very important princi- ples is maintained.¹⁰¹ D. Attempts to Resolve the Controversy between the Judicial Role and the Other Branches The High Court of Justice has reached its limit on the border separating it from the political branches. Many have claimed that the borderlines have been push- ed into territory that lies beyond the appropriate domain of the judiciary. This claim reflects a widely held public sentiment, of which the court cannot operate in disregard.¹⁰² The Court has developed a number of judicial strategies for this task. One strategy is to rule on a case, but to postpone the operative order to a later date to allow the Executive and the Legislature to respond to the Court decision. This pattern was followed in the case of Pessaro-Glodstein¹⁰³ in which the Su- preme Court declared that non-orthodox conversion in Israel was legitimate and state authorities exercising civil powers (as distinguished from religious ha- lacha on marriage and divorce) could not refuse recognition of such conversion. The Court postponed operative application, giving the Executive and the Legis- lature a grace period to respond to the ruling.

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  Criminal Justice Structures & Mandates NQF3 SB

  TVET FIRST

  • M Johnson J van Vuuren(Author)
  • 2019(Publication Date)
  • Macmillan

    (Publisher)

  93 Module 4 Topic 4: The role and functions of the judiciary in respect of empowering legislation The role and functions of the judiciary in respect of empowering legislation Module 4 Overview In this module, you will evaluate the role and functions of the judiciary in respect of empowering legislation. Units in this module • Unit 4.1: Overview of the criminal courts in South Africa • Unit 4.2: Role and functions of lower courts • Unit 4.3: Role and functions of superior courts Unit 4.1: Overview of the criminal courts in South Africa 4.1.1 Role of the courts in the criminal justice system By now, you should have an understanding of the functioning and structure of the criminal justice system and the separation of powers between the legislative, executive and judicial arms of government to ensure checks and balances. South Africa is a democratic state founded on the principles of fairness. This also applies in the judiciary. The judiciary functions independently from the legislature and the executive. These branches of government may not interfere with the judiciary. In this module we will pay specific attention to the role of the judiciary – that is, the courts. We will explain the role the courts play in the criminal justice system and elaborate on the role and functions of the different courts and the presiding officers in the fair adjudication of a case. Did you know? With reference to the role and functions of the courts, section 65 of the Constitution determines the following: (1) The judicial authority of the Republic is vested in the courts. (2) The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice. (3) No person or organ of state may interfere with the functioning of the courts.

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  The Judge, the Judiciary and the Court

  Individual, Collegial and Institutional Judicial Dynamics in Australia

  • Gabrielle Appleby, Andrew Lynch(Authors)
  • 2021(Publication Date)
  • Cambridge University Press

    (Publisher)

  121 Benjamin Cardozo, The Paradoxes of Legal Science (Columbia University Press, 1928) 7. 122 Anthony R Blackshield, ‘Five Types of Judicial Decision’ (1974) 12(3) Osgood Hall Law Journal 539, 541. See also Julius Stone, Legal System and Lawyers’ Reasonings (Stevens & Sons, 1964) 209–12, 229–34; See also Aharon Barak, ‘On Society, Law and Judging’ (2011) 47(2) Tulsa Law Review 297, 299. 123 Blackshield (n 122) 543. 124 Barak (n 27) 30. Fuller described this as a ‘problem of system’: Lon L Fuller, Anatomy of the Law (Greenwood Press, 1968) 94. 125 John Doyle, ‘The Judicial Role in a New Millennium’ (2001) 10 Journal of Judicial Administration 133, 135.    service of government; it is a core institution of government. 126 At the simplest level, as the primary dispute settlement mechanism of the State, judicial decisions helps to minimise the social disorder and chaos caused by unresolved conflicts. Moreover, judicial decisions reinforce the law by its visible application, increasing its vitality, clarity, predictability and coherence. By slowly altering the law to ensure it reflects the social values, judicial decisions make the law more dynamic and responsive, and better able to guide social conduct. The judicial function provides the spark of vitality that enlivens law within any society. It does this by blending together two distinct aspects: through dispute resolution it governs, and through governance it resolves disputes. IV Revisiting the Judicial Function The unique way in which the two aspects of dispute resolution and social governance are woven together into a coherent single function is the truly distinct nature of the judicial function.

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  The Danger of Being a Gentleman (Works of Harold J. Laski)

  And Other Essays

  • Harold J. Laski(Author)
  • 2014(Publication Date)
  • Taylor & Francis

    (Publisher)

  That is why revolutionary epochs have always been associated with hostility to the judiciary; for the mind of the judiciary is always bent to a service the revolution has come to change. At bottom, the judicial function is a political one. It seeks to protect the State-purpose from invasion. Thereby, it is bound, from its nature, to look to the past rather than to the future; its members cannot prepare the ground for new forms of social organization which depart at all radically from the central tradition. And judges, as Mr. Justice Holmes has pointed out, 31 tend in any case to be elderly men who do not easily welcome innovations to which they are unaccustomed. By the time they reach positions of judicial authority they are unlikely to depart at all widely from the groove in which earlier years have set their opinions. Mr. Justice Miller has told us how difficult, in his experience, it was for lawyers who had been counsel for railroad interests to forget, when they reached the Bench, that this affiliation had ceased. 32 But below a simple illustration of this kind there lies the deeper truth that what Mr. Justice Holmes has termed the “inarticulate major premisses” of the judiciary are toughly resistant to new ideas. Collected Papers, p. 295. Cf. the article on his opinions by Professor Fairman, Political Science Quarterly, Vol. 50, p. 15. V What conclusions emerge from this discussion? The essence of the judicial function, I have argued, is to give a logical form to conclusions which already flow, in their large outline, from the nature of any given State. The judge, no doubt, has a certain elbow-room within this outline; but the degree of his movement is always severely limited by it. That limitation, moreover, is further emphasized by two things

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  American Government

  Conflict, Compromise, And Citizenship

  • Christopher J Bosso, John Portz, Michael Tolley(Authors)
  • 2018(Publication Date)
  • Routledge

    (Publisher)

  Römer v. Evans (1996) on the status of homosexuals—all have influenced the political debate over the government’s role in promoting improved race relations, law and order, gender equality, and the rights of other minorities. In each of these cases the Court has acted as a political as well as a judicial institution.

  In fact, candidates for office at every level of government have had to respond to these decisions in one way or another, whether by voicing their agreement with the Court or by registering their disagreement and promising to promote change if elected. The Supreme Court has helped to establish public policy and will continue to help define and influence the political agenda for generations to come. In short, judicial politics is a dimension of American politics in general, another avenue for resolving the disputes that inevitably arise in a large and complex society.

  SUMMARY

  • ◗ Courts are as much political as legal institutions, as can be seen in the four functions they fulfill: social control, dispute settlement, social engineering, and regime maintenance.
  • ◗ The judiciary consists of a dual system of state and federal courts, a structure that reflects the political system’s principle of federalism.
  • ◗ The process of advancing a case through the federal judiciary is an arduous one, with relatively few cases obtaining review by the Supreme Court. Should at least four of the nine justices agree to hear the case, the Court then holds oral argument, after which the justices discuss the case among themselves. In cases in which there is no unanimity, the respective sides produce majority and dissenting opinions that explain their differing perspectives. Sometimes a justice who votes with the majority will produce a concurring opinion, in which he or she offers a somewhat different perspective than the majority opinion.
  • ◗ The professional qualifications of judicial nominees are important, but other factors, including political ones, also have an influence. Partisanship and ideological conflict help explain the occasional struggles over presidents’ nominations to the Supreme Court.
  • ◗ Marbury v. Madison

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