Judicial Branch
The judicial branch is one of the three branches of government, responsible for interpreting and applying the law. It consists of the court system, including the Supreme Court, and plays a crucial role in upholding the Constitution and ensuring the fair administration of justice. The judiciary's independence is essential for maintaining the system of checks and balances within a democratic government.
6 Key excerpts on "Judicial Branch"
eBook - ePub- Frederick G. Whelan(Author)
- 2018(Publication Date)
- Routledge(Publisher)
...Among the key functions of the judiciary are assuring the consistency of a legal system through judicial review and adjudication of constitutional questions; courts that are active in these areas may be accused of improper activism by critics of their decisions. Finally, judicial legitimacy may be enhanced by courts’ adherence to norms of publicity, transparency, and reason-giving. The idea that jurisprudence embodies an ideal of impartial legal reason is compromised, however, both by the issuance of dissenting opinions by some divided courts and by the concealment of dissent in others. Notes 1 Although courts ostensibly operate in the field of law as distinct from politics, higher courts are realistically regarded as political–in the sense of policy-making–institutions, in some of their decisions. A skeptic may question whether the legal character of these decisions is a fiction (perhaps a useful one). 2 This is also true in part of the ancient world: Aristotle held that a law-abiding democracy was among the best forms of this type of government. The rule of law, liberal freedoms, and constitutionalism all impose checks or limits on simple majoritarianism. 3 Partisan affiliation is as likely in the case of government-appointed judges as of elected ones. Campaign contributions to elected judges might corrupt or appear to detract from impartiality, however. 4 However, the “executive power of the law of nature” that Locke assigns to everyone in the state of nature includes adjudication of injuries and crimes as well as enforcement and punishment, and it is primarily this combined power that individuals transfer to civil society; Second Treatise sec. 7–11, 87). Later Locke acknowledges the tripartite division that distinguishes judicial from executive power (sec...
- Peter Joyce(Author)
- 2015(Publication Date)
- Teach Yourself(Publisher)
...13 The Judicial Branch of government In this chapter, we will consider the operations of the Judicial Branch of government. In particular we will examine the functions and operations of the courts and the role performed by judges who administer the law. What do the courts do? Key idea (1) The main role of the courts is to adjudicate a dispute between two parties. These two parties may be private citizens who are in dispute with each other. Alternatively, the state may be party to a case that comes before the courts. No two liberal democratic countries have an identical judicial system. Differences especially exist concerning the conduct of trials. The UK and America utilize the adversarial system in which two parties seek to prove their case by discrediting that put forward by their opponents. The trial is presided over by a judge whose main function is to ensure fair play. Many European countries utilize an inquisitorial system. Here the gathering of evidence is the responsibility of the judge and the main function of the trial is to resolve issues uncovered in the earlier investigation. The judge will actively intervene in the trial in order to arrive at the truth. CIVIL AND CRIMINAL LAW There are two types of dispute that may come before a court – civil and criminal. Civil law is concerned with the resolution of disagreements in which, typically, one party seeks some form of redress (such as damages) from a second party. Criminal law embraces activities that have broader social implications and which thus require the state to initiate a prosecution with a view to punishing the offender. Slander is an example of a civil action, murder is a criminal charge. In many countries, civil and criminal matters are heard in different courts. This is not invariably the case, however. In France civil and criminal matters are heard in the one court, the ordre judiciaire, utilizing the same judicial personnel...
eBook - ePubThe 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...
eBook - ePubThe Constitution of the United Kingdom
A Contextual Analysis
- Peter Leyland(Author)
- 2021(Publication Date)
- Hart Publishing(Publisher)
...First, the judicial review procedure that has developed under the rule of law results in the Judicial Branch overseeing the activities of the executive branch to prevent abuses of power. In this regard, the issue of judicial independence has been addressed at important moments in constitutional history to allow the courts to perform such a role. For example, the Act of Settlement of 1701 (see Chapter 1) protected judges from summary dismissal, and the Constitutional Reform Act 2005 (see Chapter 7) sets in place a system for judicial appointments that seeks to minimise executive interference. Second, in the UK there is no separation between the legislative and executive branches since ministers must be Members of Parliament. Such a fusion between legislative and executive functions at the heart of the system (as exemplified in the former position of the Lord Chancellor: see Chapter 7) has led commentators to consider whether formal and informal ‘checks and balances’ which exist as part of constitutional practice are sufficient to achieve adequate constitutional accountability by ensuring the containment of a powerful executive branch. PARLIAMENTARY SOVEREIGNTY Defining Legal Sovereignty The legal sovereignty of Parliament was regarded by Dicey as the founding principle of the constitution. In his words, it meant that ‘Parliament … has under the English constitution the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament’, and it is ‘the very keystone of the law of the constitution’, 4 in the sense that the sovereignty of Parliament is a fundamental rule upon which no legal limits could be placed. This emphasis on the absolute power of Parliament is because in the absence of a codified constitution the all-powerful position of Parliament in its capacity to act as law-maker assumes special importance...
eBook - ePubThe United States Supreme Court
A political and legal analysis, second edition
- Robert J. McKeever(Author)
- 2016(Publication Date)
- Manchester University Press(Publisher)
...The Court has duties and responsibilities that are crucial in a constitutional democracy and to these it must respond. It cannot, however, rival the mandate and capacities of the elected branches of government and must not therefore attempt too much, too often. What exactly these obligations and constraints demand of the Court will vary over time and political context. But this study suggests that the Court works best when it observes the following guidelines: First, the Supreme Court is essentially a judicial body with political power. This means that its methods and criteria for decision-making should be those of the law, not politics. For by retaining its distinctive character as a court of law and by avoiding becoming just another political body, the Court also has its best chance of preserving its authority. The Court is usually at its most vulnerable when its decisions are perceived as blatantly partisan. Nevertheless, there is no bright line that separates law from politics. Thus the Court cannot always be indifferent to the political aspects and consequences of its decisions. When the occasion demands, therefore, law may have to give way to politics and the Court must recognise when a particular interpretation of a statute or the Constitution no longer serves the interest of society. Second, the Supreme Court’s power is very limited and can be used effectively to nullify legislative and executive policies only on rare occasions. The fact is that the Court is an interloper in the business of legislation. Neither the Constitution nor democratic theory provides a ‘welcome mat’ for judicial legislation, but it is tolerated and even applauded on occasion because it can contribute to good government. However, like guests who outstay their welcome, the Court breeds resentment when it is perceived as usurping the prerogatives of the legislative and executive branches...
eBook - ePubThe Constitution of Czechia
A Contextual Analysis
- David Kosar, Ladislav Vyhnánek(Authors)
- 2021(Publication Date)
- Hart Publishing(Publisher)
...In doing so the Constitutional Court for the first time in the history of European integration clearly and openly declared an EU act ultra vires and thus not applicable on national territory. 39 Since then the Constitutional Court has danced around the CJEU and EU law more generally. After the reshuffle of its Justices in 2013 the new ‘Zeman Court’ seems to be more euro-friendly, but the Constitutional Court still has not submitted a single preliminary reference to the CJEU and has avoided discussion about the constitutional rank of the EU Charter of Fundamental Rights. X. CONSTITUTIONAL POLITICS OF THE Judicial Branch There has been no consensus on structuring the Czech judiciary since the early 1990s. In fact, the relationship between politicians and judges has grown more hostile over time. As a result, virtually any ‘judicial design issue’ ends up before the Constitutional Court and that Court has adopted the most stringent level of judicial review in these matters. The interferences of the Constitutional Court in ‘judicial design issues’ are so numerous that it is impossible to deal with all of them here. 40 However, three areas have been particularly contested: (1) the appointment and dismissal of court presidents; (2) the (non-)establishment of a judicial council; and (3) judicial salaries. The single most contested issue concerning the Judicial Branch has been the power of the Ministry of Justice and the Czech President to dismiss court presidents. This is not surprising, given the role of court presidents under communism and due to their significant powers nowadays. During the communist era, court presidents operated as the ‘transmission belts’ of the Communist Party, and their main role was to ‘transmit’ orders to individual judges in sensitive cases. This was in theory possible until the early 2000s as well, since Czech Ministers of Justice 41 could, de jure, dismiss court presidents without providing any reason for so doing...
