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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, C ...
s that adjudicates legal disputes/disagreements and interprets, defends, and applies the
law Law is a set of rules that are created and are law enforcement, enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. ...
in legal cases.


Definition

The judiciary is the system of courts that interprets, defends, and applies the
law Law is a set of rules that are created and are law enforcement, enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. ...
in the name of the state. 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 (polity), state's government into branches, each with separate, independent power (social and political), powers and responsibilities, so that the powers of one branch are not in conflic ...
, the judiciary generally does not make
statutory law Statutory law or statute law is written law passed by a body of legislature. This is opposed to Oral law, oral or customary law; or regulatory law promulgated by the Executive (government), executive or common law of the judiciary. Statutes may or ...
(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), 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, 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."The common law is not a brooding omnipres ...
. In many
jurisdiction Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels. Jur ...
s 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 Primary legislation and secondary legislation (the latter also called delegated legislation or subordinate legislation) are two forms of law, created respectively by the legislative and executive branches of governments in representative dem ...
, the provisions of the
constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity A polity is an identifiable Politics, political entity – a group of people with a collective identity, who ...
,
treaties A treaty is a formal, legally binding written agreement between actors in international law. It is usually made by and between sovereign state A sovereign state or sovereign country, is a polity, political entity represented by one centr ...
or
international law International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between State (polity), states. It establishes normative guidelines and a common conceptua ...
. 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, 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."The common law is not a brooding omnipres ...
countries creating the body of constitutional law.


History

This is a more general overview of 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'' (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 Laws of the Twelve Tables was the legislation that stood at the foundation of Roman law. Formally promulgated in 449 BC, the Tables consolidated earlier traditions into an enduring set of laws.Crawford, M.H. 'Twelve Tables' in Simon Hornblowe ...
. ''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 as the head of the judicial system. The praetor would also make an edict 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 from the beginning of the reign of Augustus in 27 BC to the end of the Crisis of the Third Century in AD 284, after which it evolved into the so-called Dominate. ...
is the first part of the Roman Empire, which started with the reign of
Augustus Caesar Augustus (born Gaius Octavius; 23 September 63 BC – 19 August AD 14), also known as Octavian, was the first Roman emperor; he reigned from 27 BC until his death in AD 14. He is known for being the founder of the Roman Pri ...
. 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 Trâiānus Hadriānus ; 24 January 76 – 10 July 138) was Roman emperor from 117 to 138. He was born in Italica (close to modern Santiponce in Spain), a Roman ''municipium'' founded by Italic peoples, Italic settlers ...
. 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. 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,'' 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, 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, France and Germany are identified as glossators in a specific sense. They studied Roman law based on the ''Digest (Roman law), Digesta'', the ''Codex Justinianus, Codex'' of Justin ...
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 The ''Glossa Ordinaria'', which is Latin Latin (, or , ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally a dialect spoken in the lower Tiber area (then known as L ...
'' 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
decretist In the history of Canon law (Catholic Church), canon law, a decretist was a student and interpreter of the ''Decretum Gratiani''. Like Decretum Gratiani, Gratian, the decretists sought to provide "a harmony of discordant canons" (''concordia discor ...
s, started to organise all of the church law, which is now known as the '' Decretum Gratiani'', 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''. It was used by canonists of the
Roman Catholic Church The Catholic Church, also known as the Roman Catholic Church, is the largest Christian church, with 1.3 billion baptized Catholics worldwide . It is among the world's oldest and largest international institutions, and has played a ...
until Pentecost (19 May) 1918, when a revised '' 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 '' 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, where the judge would actively investigate all the evidence before him, but also partially adversarial, where both parties are responsible for finding the evidence to convince the judge. After the
French Revolution The French Revolution ( ) was a period of radical political and societal change in France France (), officially the French Republic ( ), is a country primarily located in Western Europe. It also comprises of Overseas France, ...
, 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 Case law, also used interchangeably with common law In law, common law (also known as judicial precedent, 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 writt ...
in areas where the legislature has not made law. For instance, the
tort A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishab ...
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 ''stare decisis''.


Country-specific functions

In the United States court system, the
Supreme Court A supreme court is the highest 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 ju ...
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 - A lawsuit is a proceeding by a party or parties against another in the Civil law (common law), civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in re ...
,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 France (), officially the French Republic ( ), is a country primarily located in Western Europe. It also comprises of Overseas France, overseas regions and territories in the Americas and the Atlantic Ocean, Atlantic, Pacific Ocean, Pac ...
, the final authority on the interpretation of the law is the Council of State for administrative cases, and the Court of Cassation for civil and criminal cases. In the
People's Republic of China China, officially the People's Republic of China (PRC), is a country in East Asia. It is the world's List of countries and dependencies by population, most populous country, with a Population of China, population exceeding 1.4 billion, slig ...
, the final authority on the interpretation of the law is the
National People's Congress The National People's Congress of the People's Republic of China (NPC; ), or simply the National People's Congress, is constitutionally the supreme state authority and the legislature, national legislature of the People's Republic of Chi ...
. Other countries such as
Argentina Argentina (), officially the Argentine Republic ( es, link=no, República Argentina), is a country in the southern half of South America. Argentina covers an area of , making it the List of South American countries by area, second-largest ...
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.


Judicial systems by country


Japan

Japan Japan ( ja, 日本, or , and formally , ''Nihonkoku'') is an island country in East Asia. It is situated in the northwest Pacific Ocean, and is bordered on the west by the Sea of Japan, while extending from the Sea of Okhotsk in the north ...
's process for selecting judges is longer and more stringent than in various countries, like the
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...
and in
Mexico Mexico (Spanish language, Spanish: México), officially the United Mexican States, is a List of sovereign states, country in the southern portion of North America. It is borders of Mexico, bordered to the north by the United States; to the so ...
. 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 Supreme Court of 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 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 Mexico City ( es, link=no, Ciudad de México, ; abbr.: CDMX; Nahuatl: ''Altepetl Mexico'') is the capital city, capital and primate city, largest city of Mexico, and the List of North American cities by population, most populous city in North Amer ...
. Supreme Court Judges must be of ages 35 to 65 and hold a law degree during the five years preceding their nomination.


United States

United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point ...
justices are appointed by the
President of the United States The president of the United States (POTUS) is the head of state and head of government of the United States of America. The president directs the executive branch of the federal government and is the commander-in-chief of the United St ...
and approved by the
United States Senate The United States Senate is the Upper house, upper chamber of the United States Congress, with the United States House of Representatives, House of Representatives being the Lower house, lower chamber. Together they compose the national Bica ...
. The Supreme Court justices serve for life term or until retirement. The Supreme Court is located in Washington, D.C. The United States federal court system consists of 94 federal judicial districts. The 94 districts are then divided up into 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 The United States courts of appeals are the intermediate appellate courts of the United States federal judiciary. The courts of appeals are divided into 11 numbered circuits that cover geographic areas of the United States and hear appeals fro ...
, 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 The United States Department of Justice (DOJ), also known as the Justice Department, is a United States federal executive departments, federal executive department of the United States government tasked with the enforcement of federal law and a ...
in the executive branch. Each state,
district A district is a type of administrative division that, in some countries, is managed by the local government. Across the world, areas known as "districts" vary greatly in size, spanning regions or county, counties, several municipality, municipa ...
and inhabited territory also has its own court system operating within the legal framework of the respective jurisdiction, responsible for hearing cases regarding state and territorial law. All these jurisdictions also have their own supreme courts (or equivalent) which serve as the highest courts of law within their respective jurisdictions.


See also

* Bench (law) *
Supreme court A supreme court is the highest 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 ju ...
*
Political corruption Political corruption is the use of powers by government officials or their network contacts for illegitimate private gain. Forms of corruption vary, but can include bribery, lobbying, extortion, cronyism, nepotism, parochialism, patronage, inf ...
*
Judicial independence Judicial independence is the concept that the judiciary should be independent from the other Separation of powers, branches of government. That is, courts should not be subject to improper influence from the other branches of government or from pri ...
* Judicial review * Rule according to higher law *
Rule of law The rule of law is the political philosophy that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. The rule of law is defined in the ''Encyclopedia Britannica ...


References


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 The University of Chicago Press is the largest and one of the oldest university presses in the United States. It is operated by the University of Chicago and publishes a wide variety of academic titles, including ''The Chicago Manual of Style'', ...
. * 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.


External links

* * * {{Authority control Separation of powers