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The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of
court A court is any person or institution, often as a government institution, with the authority to Adjudication, adjudicate legal disputes between Party (law), parties and carry out the administration of justice in Civil law (common law), civil, Cr ...
s that adjudicates legal disputes/disagreements and interprets, defends, and applies the
law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its environment, is described by its boundari ...
in legal cases.


Definition

The judiciary is the system of
court A court is any person or institution, often as a government institution, with the authority to Adjudication, adjudicate legal disputes between Party (law), parties and carry out the administration of justice in Civil law (common law), civil, Cr ...
s that interprets, defends, and applies the
law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its environment, is described by its boundari ...
in the name of the
state State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. Department of State * The State (newspaper), ''The State'' (newspaper), a daily newspaper in Columbia, South Carolina, Un ...
. The judiciary can also be thought of as the mechanism for the resolution of disputes. Under the doctrine of the
separation of powers Separation of powers refers to the division of a state State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. Department of State * The State (newspaper), ''The State'' ( ...
, the judiciary generally does not make
statutory law Statutory law or statute law is written law Torah (; he, תּוֹרָה, "Instruction", "Teaching" or "Law") has a range of meanings. It can most specifically mean the first five books (Pentateuch or Five Books of Moses) of the Hebrew Bi ...
(which is the responsibility of the
legislature A legislature is an deliberative assembly, assembly with the authority to make laws for a Polity, political entity such as a Sovereign state, country or city. They are often contrasted with the Executive (government), executive and Judiciary, ...
) or enforce law (which is the responsibility of the
executive Executive may refer to: Role, title, or function * Executive (government), branch of government that has authority and responsibility for the administration of state bureaucracy * Executive, a senior management role in an organization ** Chief exec ...
), but rather interprets, defends, and applies the law to the facts of each case. However, in some countries the judiciary does make
common law In law, common law (also known as judicial precedent or judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions. ''Black's Law Dictionary'' is the most-use ...
. In many
jurisdiction Jurisdiction (from Latin Latin (, or , ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally spoken in the area around Rome, known as Latium. Through the power of the ...
s the judicial branch has the power to change laws through the process of
judicial review Judicial review is a process under which executive Executive may refer to: Role, title, or function * Executive (government), branch of government that has authority and responsibility for the administration of state bureaucracy * Executive, ...
. 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 In parliamentary systems and presidential systems of government, primary legislation and secondary legislation, the latter also called delegated legislation or subordinate legislation, are two forms of law, created respectively by the legislature ...
, the provisions of the
constitution A constitution is an aggregate of fundamental principles A principle is a proposition or value that is a guide for behavior or evaluation. In law, it is a rule Rule or ruling may refer to: Human activity * The exercise of political ...
,
treaties A treaty is a formal, legally binding written agreement between actors in international law International law, also known as public international law and law of nations, is the set of rules, norms, and standards generally accepted in relati ...

treaties
or
international law International law, also known as public international law and law of nations, is the set of rules, norms, and standards generally accepted in relations between nations. It establishes normative guidelines and a common conceptual framework to guide ...
. Judges constitute a critical force for interpretation and implementation of a constitution, thus in
common law In law, common law (also known as judicial precedent or judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions. ''Black's Law Dictionary'' is the most-use ...
countries creating the body of constitutional law.


History

This is a more general overview of h the development of the judiciary and judicial systems over the course of history.


Roman judiciary


Archaic Roman Law (650–264 BC)

The most important part was ''Ius Civile'' (Latin for "civil law"). This consisted of ''
Mos Maiorum The ''mos maiorum'' (; "ancestral custom" or "way of the ancestors," plural ''mores'', cf. English "mores"; ''maiorum'' is the Genitive case, genitive plural of "greater" or "elder") is the unwritten code from which the Ancient Rome, ancient Roman ...
'' (Latin for "way of the ancestors") and ''Leges'' (Latin for "laws"). ''Mos Maiorum'' was the rules of conduct based on social norms created over the years by predecessors. In 451–449 BC, the ''Mos Maiorum'' was written down in the
Twelve Tables The ''Law of the Twelve tables'' ( la, Leges Duodecim Tabularum or ''Duodecimo Tabulae'') was the legislation that stood at the foundation of Roman law Roman law is the legal system of ancient Rome In historiography, ancient Rome is Rom ...
. ''Leges'' were rules set by the leaders, first the kings, later the popular assembly during the Republic. In these early years, the legal process consisted of two phases. The first phase, ''In Iure'', was the judicial process. One would go to the head of the judicial system (at first the priests as law was part of religion) who would look at the applicable rules to the case. Parties in the case could be assisted by jurists. Then the second phase would start, the ''Apud Iudicem''. The case would be put before the judges, which were normal Roman citizens in an uneven number. No experience was required as the applicable rules were already selected. They would merely have to judge the case.


Pre-classical Roman Law (264–27 BC)

The most important change in this period was the shift from priest to
praetor Praetor ( , ), also pretor, was the title A title is one or more words used before or after a person's name, in certain contexts. It may signify either generation, an official position, or a professional or academic qualification. In some langua ...
as the head of the judicial system. The praetor would also make an
edict An edict is a decree or announcement of a law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by i ...
in which he would declare new laws or principles for the year he was elected. This edict is also known as praetorian law.


Principate (27 BC–284 AD)

The
Principate The Principate is the name sometimes given to the first period of the Roman Empire The Roman Empire ( la, Imperium Rōmānum ; grc-gre, Βασιλεία τῶν Ῥωμαίων, Basileía tôn Rhōmaíōn) was the post-Roman Republic, Rep ...
is the first part of the Roman Empire, which started with the reign of
Augustus Caesar Augustus (23 September 63 BC19 August AD 14) was the first Roman emperor The Roman emperor was the ruler of the Roman Empire during the imperial period (starting in 27 BC). The emperors used a variety of different titles througho ...

Augustus
. This time period is also known as the "classical era of Roman Law" In this era, the praetor's edict was now known as ''edictum perpetuum'', which were all the edicts collected in one edict by
Hadrian Hadrian (; la, Caesar Traianus Hadrianus ; 24 January 76 – 10 July 138) was Roman emperor from 117 to 138. He was born into a Roman Italo-Hispanic family, which settled in Spain from the Italian city of Atri, Abruzzo, Atri in Picenum. His ...

Hadrian
. Also, a new judicial process came up: ''cognitio extraordinaria'' (Latin for "extraordinary process"). This came into being due to the largess of the empire. This process only had one phase, where the case was presented to a professional judge who was a representative of the emperor. Appeal was possible to the immediate superior. During this time period, legal experts started to come up. They studied the law and were advisors to the emperor. They also were allowed to give legal advise on behalf of the emperor.


Dominate (284–565 AD)

This era is also known as the "post-classical era of roman law". The most important legal event during this era was the Codification by Justinianus: the
Corpus Iuris Civilis The ''Corpus Juris'' (or ''Iuris'') ''Civilis'' ("Body of Civil Law") is the modern name for a collection of fundamental works in jurisprudence Jurisprudence, or legal theory, is the theoretical study of law. Scholars of jurisprudence s ...
. This contained all Roman Law. It was both a collection of the work of the legal experts and commentary on it, and a collection of new laws. The ''Corpus Iuris Civilis'' consisted of four parts: # ''Institutiones'': This was an introduction and a summary of roman law. # ''Digesta/Pandectae'': This was the collection of the edicts. # ''Codex'': This contained all the laws of the emperors. # ''Novellae'': This contained all new laws created.


Middle Ages

During the late Middle Ages, education started to grow. First education was limited to the monasteries and abbies, but expanded to cathedrals and schools in the city in the 11th century, eventually creating universities. The universities had five faculties: arts, medicine, theology, canon law and ''Ius Civile'', or civil law. Canon law, or ecclesiastical law are laws created by the Pope, head of the Roman Catholic Church. The last form was also called secular law, or Roman law. It was mainly based on the ''
Corpus Iuris Civilis The ''Corpus Juris'' (or ''Iuris'') ''Civilis'' ("Body of Civil Law") is the modern name for a collection of fundamental works in jurisprudence Jurisprudence, or legal theory, is the theoretical study of law. Scholars of jurisprudence s ...
,'' which had been rediscovered in 1070. Roman law was mainly used for "worldly" affairs, while canon law was used for questions related to the church. The period starting in the 11th century with the discovery of the ''Corpus Iuris Civilis'' is also called the
Scholastics Scholasticism was a medieval school of philosophy that employed a critical method of philosophical analysis predicated upon a Latin Catholic theistic curriculum which dominated teaching in the medieval universities in Europe from about 1100 ...
, which can be divided in the early and late scholastics. It is characterised with the renewed interest in the old texts.


''Ius Civile''


= Early scholastics (1070–1263)

= The rediscovery of the Digesta from the ''Corpus Iuris Civilis'' led the university of Bologna to start teaching Roman law. Professors at the university were asked to research the Roman laws and advise the Emperor and the Pope with regards to the old laws. This led to the
Glossator The scholars of the 11th- and 12th-century legal schools in Italy Italy ( it, Italia ), officially the Italian Republic ( it, Repubblica Italiana, links=no ), is a country consisting of a Northern Italy, continental part, delimited by the Al ...
s to start translating and recreating the ''Corpus Iuris Civilis'' and create literature around it: * ''Glossae'': translations of the old Roman laws * ''Summae'': summaries * ''Brocardica'': short sentences that made the old laws easier to remember, a sort of mnemonic * ''Quaestio Disputata'' (''sic et non''): a dialectic method of seeking the argument and refute it. Accursius wrote the '' Glossa Ordinaria'' in 1263, ending the early scholastics.


= Late scholastics (1263–1453)

= The successors of the Glossators were the Post-Glossators or Commentators. They looked at a subject in a logical and systematic way by writing comments with the texts, treatises and ''consilia'', which are advises given according to the old Roman law.


Canon Law


= Early Scholastics (1070–1234)

= Canon law knows a few forms of laws: the ''canones'', decisions made by Councils, and the ''decreta'', decisions made by the Popes. The monk Gratian, one of the well-known decretists, started to organise all of the church law, which is now known as the ''
Decretum Gratiani The ''Decretum Gratiani'', also known as the ''Concordia discordantium canonum'' or ''Concordantia discordantium canonum'' or simply as the ''Decretum'', is a collection of canon law Canon law (from grc, κανών, , a 'straight measuring rod, ...
'', or simply as ''Decretum''. It forms the first part of the collection of six legal texts, which together became known as the ''
Corpus Juris Canonici The ''Corpus Juris Canonici'' ( lit. 'Body of Canon Law') is a collection of significant sources of the canon law Canon law (from grc, κανών, , a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastic ...
''. It was used by
canonist Canon law (from grc, κανών, , a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical authority (Church leadership), for the government of a Christian organization or church and its members. It is th ...
s of the Roman Catholic Church until Pentecost (19 May) 1918, when a revised ''1917 Code of Canon Law, Code of Canon Law'' (''Codex Iuris Canonici'') promulgated by Pope Benedict XV on 27 May 1917 obtained legal force.


= Late Scholastics (1234–1453)

= The Decretalists, like the post-glossators for ''Ius Civile'', started to write treatises, comments and advises with the texts.


Ius Commune

Around the 15th century, a process of reception and acculturation started with both laws. The final product was known as ''Jus commune, Ius Commune''. It was a combination of canon law, which represented the common norms and principles, and Roman law, which were the actual rules and terms. It meant the creation of more legal texts and books and a more systematic way of going through the legal process. In the new legal process, appeal was possible. The process would be partially Inquisitorial system, inquisitorial, where the judge would actively investigate all the evidence before him, but also partially Adversarial system, adversarial, where both parties are responsible for finding the evidence to convince the judge. After the 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.


Functions of the judiciary in different law systems

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 of law. Common law decisions set precedent for all courts to follow. This is sometimes called Precedent, ''stare decisis''.


Country-specific functions

In the Courts of the United States, United States court system, the Supreme Court of the United States, 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 United States federal courts, US federal court system, federal cases are tried in trial courts, known as the United States district court, US district courts, followed by appellate courts and then the Supreme Court. State court (United States), State courts, which try 98% of litigation,American Bar Association (2004)
How the Legal System Works: The Structure of the Court System, State and Federal Courts
. In ''ABA Family Legal Guide''.
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. In France, the final authority on the interpretation of the law is the Council of State (France), Council of State for administrative cases, and the Court of Cassation (France), Court of Cassation for civil and criminal cases. In the China, 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 Court of cassation, 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.


Judicial systems by country


Japan

Japan's process for selecting judges is longer and more stringent than in various countries, like 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, Saitama, 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 Supreme Court of Japan. Judges require ten years of experience in practical affairs, as a public prosecutor or practicing attorney. In the Judicial system of Japan, Japanese judicial branch there is the Supreme Court, eight high courts, fifty district courts, fifty family courts, and 438 summary courts.


Mexico

Justices of the Mexican Supreme Court are appointed by the President of 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 11 ministers of the Supreme Court, 32 circuit tribunals and 98 district courts. The Supreme Court of 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 of the United States, United States Supreme Court justices are appointed by the President of the United States and approved by the United States Senate. The Supreme Court justices serve for a life term or until retirement. The Supreme Court is located in Washington, D.C. The Federal judiciary of the United States, United States federal court system consists of 94 United States federal judicial district, federal judicial districts. The 94 districts are then divided up into United States courts of appeals, twelve regional circuits. The United States has five different types of courts that are considered subordinate to the Supreme Court: United States bankruptcy courts, United States Court of Appeals for the Federal Circuit, United States Court of International Trade, United States courts of appeals, and United States district courts. Immigration courts are not part of the judicial branch; immigration judges are employees of the Executive Office for Immigration Review, part of the United States Department of Justice in the executive branch. Each U.S. state, state, District of Columbia, district and territories of the United States, inhabited territory also has its own state court (United States), court system operating within the legal framework of the respective jurisdiction, responsible for hearing cases regarding state law (United States), state and territorial law. All these jurisdictions also have their own state supreme courts, supreme courts (or equivalent) which serve as the highest courts of law within their respective jurisdictions.


See also

* Bench (law) * Supreme court * Political corruption * Judicial independence * Judicial review * Rule according to higher law * Rule of law


Further reading

* Cardozo, Benjamin N. (1998). ''The Nature of the Judicial Process''. New Haven: 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''. Chicago: University of Chicago Press. * Marshall, Thurgood (2001). ''Thurgood Marshall: His Speeches, Writings, Arguments, Opinions and Reminiscences''. Chicago: Lawrence Hill Books. * 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: Greenwood Press. * * Tribe, Laurence (1985). ''God Save This Honorable Court: How the Choice of Supreme Court Justices Shapes Our History''. New York: Random House. * Zelermyer, William (1977). ''The Legal System in Operation''. St. Paul, MN: West Publishing.


References

{{Authority control Judiciaries, Separation of powers