|
JUDICIARY
In law, the judiciary or judicature is the system of courts which administer justice in the name of the sovereign or state, and provide a mechanism for the resolution of disputes.
The term is also used to refer collectively to the judges, magistrates and other adjudicators who form the core of a judiciary, as well as the support personnel who keep the system running smoothly.
Under the doctrine of the separation of powers, the judiciary is the branch of government primarily responsible for interpreting the law.
- In common law jurisdictions, case law is created by the courts' interpretations as a result of the principle of stare decisis;
- In civil law jurisdictions, courts interpret the law, but are, at least in theory, prohibited from creating law, and thus, still in theory, do not issue rulings more general than the actual case to be judged; in practice, jurisprudence plays the same role as case law;
- In socialist law, the primary responsibility for interpreting the law belongs to the legislature.
This difference can be seen by comparing the United States, France and the People's Republic of China:
Differences between civil, socialist and common law
The idea found in civil and socialist law that the judiciary does not interpret the law in creative ways has its origins in Roman law. It is said that the famed Byzantine Emperor Justinian had the Corpus Juris Civilis compiled and all other decisions by jurists burned to create certainty in the law. Again in the 19th century, French legal scholars at the time of the development of the Code Napoleon advocated the same kind of approach — it was believed that since the law was being written down precisely, it should not need interpretation; and if it did need interpretation, it could be referred to those who wrote the code. Napoleon, who was an advocate of this approach felt that the task of interpreting the law should be left with the elected legislature, not with unelected judges. This contrasted with the pre-revolutionary situation in France, where unelected parlements defending the interests of the high bourgeoisie would often slow the enforcement of royal decisions, including much needed reforms.
However, this idea was found difficult to implement in practice. In France, and other countries that Napoleon had conquered, or where there was a reception of the Civil Code approach, judges once again assumed an important role, like their English counterparts. In civil law jurisdictions at present, judges interpret the law to about the same extent as in common law jurisdictions – though it may be acknowledged in theory in a different manner than in the common law tradition which directly recognizes the limited power of judges to make law. For instance, in France, the jurisprudence constante of the Cour de cassation or the Conseil d'État is equivalent in practice with case law.
In theory, in the French civil law tradition, a judge does not make new law; he or she merely interprets the intents of "the Legislator." The role of interpretation is traditionally approached more conservatively in civil law jurisdictions than in common law jurisdictions. When the law fails to deal with a situation, doctrinal writers and not judges call for legislative reform, though these legal scholars sometimes influence judicial decisionmaking. Civil law judges also refer to the interpretation of codal provisions and they look for an underlying rationale not only in the particular text, but its relationship to the whole structure of the code as an organizing structure that reflects order in a civil society.
Socialist law adopted the status of civil law, but added to it a new line of thought derived from Communism — the interpretation of the law is ultimately political, and should serve the purposes of Communism, and hence should not be left to a non-political organ (even though in practice, the judiciary was never much of a neutral organ above politics).
See also
|