The JUDICIARY (also known as the JUDICIAL SYSTEM or COURT SYSTEM) is
the system of courts that interprets and applies the law in the name
of the state . The judiciary also provides a mechanism for the
resolution of disputes . In some nations, under doctrines of
separation of powers , the judiciary generally does not make 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. In other nations, the judiciary
can make law, known as Common
Law , by setting precedent for other
judges to follow, as opposed to Statutory
Law made by the legislature.
Judiciary is often tasked with ensuring equal justice under 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 or international law . Judges
constitute a critical force for interpretation and implementation of a
constitution, thus de facto in common law countries creating the body
of constitutional law. For a people to establish and keep the 'Rule of
Law' as the operative norm in social constructs great care must be
taken in the election or appointment of unbiased and thoughtful legal
scholars whose loyalty to an oath of office is without reproach. If
law is to govern and find acceptance generally courts must exercise
fidelity to justice which means affording those subject to its
jurisdictional scope the greatest presumption of inherent cultural
relevance within this framework.
In the US during recent decades the judiciary became active in
economic issues related with economic rights established by
constitution because "economics may provide insight into questions
that bear on the proper legal interpretation". Since many countries
with transitional political and economic systems continue treating
their constitutions as abstract legal documents disengaged from the
economic policy of the state, practice of judicial review of economic
acts of executive and legislative branches have begun to grow.
In the 1980s, the Supreme
Court of India for almost a decade had been
encouraging public interest litigation on behalf of the poor and
oppressed by using a very broad interpretation of several articles of
Budget of the judiciary in many transitional and developing countries
is almost completely controlled by the executive. The latter
undermines the separation of powers, as it creates a critical
financial dependence of the judiciary. The proper national wealth
distribution including the government spending on the judiciary is
subject of the constitutional economics . It is important to
distinguish between the two methods of corruption of the judiciary:
the state (through budget planning and various privileges), and the
The term "judiciary" is also used to refer collectively to the
personnel, such as judges , magistrates and other adjudicators, who
form the core of a judiciary (sometimes referred to as a "bench "), as
well as the staffs who keep the system running smoothly.
In some countries and jurisdictions, judiciary branch is expanded to
include additional public legal professionals and institutions such as
prosecutors , state lawyers , ombudsmen , public notaries , judicial
police service and legal aid officers . These institutions are
sometimes governed by the same judicial administration that governs
courts, and in some cases the administration of the judicial branch is
also the administering authority for private legal professions such as
lawyers and private notary offices.
* 1 History
* 2 Various functions
* 3 Judicial systems
* 4 See also
* 5 References
* 6 Further reading
* 7 External links
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 .
In civil law jurisdictions at present, judges interpret the law to
about the same extent as in common law jurisdictions – however it is
different from the common law tradition which directly recognizes the
limited power to make law. For instance, in
France , the jurisprudence
constante of the
Court of Cassation or the Council of State is
equivalent in practice with case law . However, the Louisiana Supreme
Court notes the principal difference between the two legal doctrines:
a single court decision can provide sufficient foundation for the
common law doctrine of stare decisis, however, "a series of
adjudicated cases , all in accord, form the basis for jurisprudence
constante." Moreover, the Louisiana
Court of Appeals has explicitly
noted that jurisprudence constante is merely a secondary source of
law, which cannot be authoritative and does not rise to the level of
* 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
* 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.
Jurisprudence plays a
similar role to case law.
* In the
United States court system , the 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 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 , may have
different names and organization; trial courts may be called "courts
of common plea", appellate courts "superior courts" or "commonwealth
courts". 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.
France , the final authority on the interpretation of the law
is the Council of State for administrative cases, and the
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.
Japan 's process for selecting judges is longer and more stringent
than the process in the
United States and in
Mexico . 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
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
Justices of the Mexican Supreme
Court are appointed by the President
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
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.
United States Supreme
Court justices are appointed by the President
United States and approved by the
United States Senate . As in
Mexico, justices serve for a life term or until retirement. The
Court of the
United States is located in
Washington D.C. . The
United States federal court system consists of 94 federal judicial
districts . The 94 districts are then divided into twelve regional
United States has five different types of courts that
are considered subordinate to the Supreme Court: United States
bankruptcy courts ,
Court of Appeals for the Federal
Court of International Trade , United States
Courts of Appeals , and
United States District Courts .
Rule according to higher law
Rule of law
Rule of law
* ^ Hamilton, Marci. God vs. the Gavel, p. 296 (Cambridge
University Press 2005): "The symbol of the judicial system, seen in
courtrooms throughout the United States, is blindfolded Lady Justice."
* ^ Fabri, Marco. The challenge of chanf for judicial systems, p,
137 (IOS Press 2000): "the judicial system is intended to be
apolitical, its symbol being that of a blindfolded Lady Justice
holding balanced scales."
* ^ Posner R. The
Constitution as an Economic Document. The George
Law Review, November 1982, Vol. 56. No. 1
* ^ Jeremy Cooper, Poverty and Constitutional Justice, in
Philosophy of Law: Classic and Contemporary Readings, edited by Larry
May and Jeff Brown, Wiley-Blackwell, UK, 2010.
* ^ Barenboim, Peter (October 2009). Defining the rules. Issue 90.
The European Lawyer.
* ^ Cappelletti, Mauro et al. The Italian Legal System, p. 150
(Stanford University Press 1967).
* ^ Willis-Knighton Med. Ctr. v. Caddo-Shreveport Sales ">(PDF).
Syracuse University College of
* ^ Grider, Alisa. "How the Judicial System Works Around The
World". Retrieved 23 May 2006.
* ^ Mosleh, Peter. "Japan\'s Judiciary". Southern Methodist
University. Retrieved April 20, 2013.
* ^ "The Japanese Judicial System". Retrieved April 20, 2013.
* ^ "Mexico-Judicial Legislative". Retrieved April 20, 2013.
* ^ "The Judicial Branch". The White House. Retrieved April 20,
* ^ "Federal Courts". Retrieved April 20, 2013.
* Cardozo, Benjamin N. (1998).
The Nature of the Judicial Process .
Yale University Press .
* Feinberg, Kenneth, Jack Kress, Gary McDowell, and Warren E. Burger
(1986). The High Cost and Effect of Litigation, 3 vols.
* Frank, Jerome (1985).
Law and the Modern Mind. Birmingham, AL:
Legal Classics Library.
* Levi, Edward H. (1949) An Introduction to Legal Reasoning.
University of Chicago Press .
* Marshall, Thurgood (2001). Thurgood Marshall: His Speeches,
Writings, Arguments, Opinions and Reminiscences. Chicago: Lawrence
* McCloskey, Robert G., and Sanford Levinson (2005). The American
Supreme Court, 4th ed. Chicago: University of Chicago Press.
* Miller, Arthur S. (1985). Politics,
Democracy and the Supreme
Court: Essays on the Future of Constitutional Theory. Westport, CT:
* Sandefur, Timothy (2008). "Judiciary". In Hamowy, Ronald . The
Encyclopedia of Libertarianism. Thousand Oaks, CA: SAGE ; Cato
Institute . pp. 265–67. ISBN 978-1-4129-6580-4 . LCCN 2008009151 .
OCLC 750831024 . doi :10.4135/9781412965811.n160 .
* Tribe, Laurence (1985). God Save This Honorable Court: How the
Choice of Supreme
Court Justices Shapes Our History. New York: Random
* Zelermyer, William (1977). The Legal System in Operation. St.
Paul, MN: West