Chapter Fourteen
Judicial Authority
Dr Khalil Hussein
Professor at Lebanese University
Director of studies at Lebanese Parliament
In the law, the judiciary or judicial system is the system of courts which administer justice in the name of the sovereign or state, a mechanism for the resolution of disputes[1].
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 India, United States, France and the People's Republic of China:
· In Indian democracy, courts have the final say until the constitution itself is amended although a supreme court judgement in 1970's ruled that Parliament doesn't have the authority to change the basic structure of Indian constitution.
· in the United States government, the Supreme Court is the final authority on the interpretation of the federal Constitution and all statutes and regulations created pursuant to it;
· in France, the final authority on the interpretation of the law is the Conseil d'État for administrative cases, and the Court of Cassation for civil and criminal cases;
· 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.
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[2].
In theory, in the French civil law tradition[3], 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).
Judges
A judge or justice is an official who presides over a court. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions.
Judges in the Legal System
There are significant differences between the role of a judge in the common law system descended from British practice, and civil law systems descendant from continental European judicial practice. The descriptions below are necessarily archetypical. Details vary from judicial system to judicial system. In many cases, the judicial systems have experienced convergent evolution, expressly or unconsciously adopting similar practices or operating in a manner that minimizes the impact of formal differences between the archetypical role of each system's judges[4].
Judges in common law legal systems
In common law countries, judges usually operate within the adversarial system of justice, and the trial level, usually preside over court proceedings as the sole judge present, with only narrow exceptions (e.g. in the United States, certain election law cases).
Professional Background
Common law judges are generally appointed or elected from among practicing attorneys after prior careers as practicing attorneys, although many receive brief educational programs specific to judging once taking the bench. Judges are frequently drawn from the ranks of barristers, as opposed to solicitors where a distinction is made between the two as separate legal professions.
Many U.S. states permit non-lawyers to serve as justices of the peace or as inferior jurisdiction judges in rural areas, but this practice is generally limited to less serious criminal offenses and small claims. Federal judges are not required by law to be attorneys, but the practice of appointing attorneys to the federal bench is almost universal[5].
Judges and Juries
In the common law system[6], when there is a jury trial in the trial courts, the jury generally decides questions of fact (guilty or not guilty, whether a party was negligent, etc.) while a single judge decides questions of law (under common-law systems, one of the judge's most important powers is to craft jury instructions).
In a trial before a judge, sometimes called a "bench trial", a single judge decides issues of both law and fact. Outside the United States, only a very narrow category of civil cases are tried before juries and usually criminal cases are tried before juries only in more serious cases. In the United States, cases where a jury is not available are the exception, rather than the norm, even in relatively minor civil and criminal matters. In United States practice, the right to a jury usually hinges on historical distinctions made between law and equity in Britain prior to the adoption of the United States Constitution.
Because both civil and criminal procedure in common law systems developed in the context of a system where the ultimate decisions were usually deferred to a jury (even though this is often not the case outside the United States in civil cases), common law judges are limited in their power to resolve matters prior to a full trial, even if they have all information that they feel they need to resolve a case involving disputed facts.
Historically, in Europe in the Middle Ages, juries often stated the law by consensus or majority and the judge applied it to the facts as he saw them. This practice no longer exists. The power of juries to determine the law in a manner contrary to that dictated by the trial judge, or even ignore the law (which is often called jury nullification), has been controversial in American jurisprudence from very early on in American history. Generally speaking, current practice in U.S. law is to formally deny that such a power exists. But, U.S. law also maintains procedural protections such as a prohibiting testimony regarding jury deliberations, and disallowing government appeals of acquittals by juries in criminal cases, that have the practical effect of making it possible for juries to make their own determinations of law.
U.S. legal practice also has an institution called a grand jury which is presided over on a day to day basis by a prosecutor, rather than a judge, although it is ultimately under the supervision of a judge. This institution investigates crimes via the subpoena power and screens serious criminal charges to determine if a prosecution is justified.
Appellate Judging
In common law practice, appeals are usually decided by a panel of judges, generally three appellate judges chosen at random in an intermediate appellate court and the entire composition of the court in the relevant highest appellate court in the jurisdiction, although decisions made by a subordinate or inferior jurisdiction judge are sometimes reviewed by a single judge.
Judges in civil law system
In the civil law system, serious matters are almost always decided at the trial level by at least three judges, and sometimes more, often in combination with lay persons in serious criminal manners, although one of those judges may take the lead in gathering evidence in a case. In civil law systems typically only the equivalent of U.S. small claims and misdemeanors are handled by a single trial judge[7].
In civil law practice, appeals are usually decided by a panel of multiple judges. State courts can be called district courts. The highest appellate court in a civil law jurisdiction, often translated "supreme court" in English, is typically organized more like an intermediate appellate court in common law practice, in that decisions are usually made by a panel of judges that does not include all judges who are a member of that court. Also unlike common law practice, judges are typically assigned to appeals in the highest appellate court based on specialties in a particular type of law, rather than at random. Typically the only appellate court in a civil law system in which all members of the court will typically decide a case that will operate in a civil law country is the constitutional court.
Non-judges with judicial power
Certain non-judges are vested with judicial power by virtue of their political or religious office, or their position as a responsible government employee.[8]
In Japan, police officers can order punishments for minor offenses without approval from a judge. In U.S. military law, military officers can dispense justice for minor military law infractions without holding a court-martial, and also preside over courts-martial involving more serious offenses. A number of jurisdictions give mayors of municipalities judicial authority similar to a justice of the peace or magistrate. Many courts with probate jurisdiction give court clerks quasi-judicial authority as "registrars" of the court. Members of county commissions and city councils in the United States often have quasi-judicial authority in zoning matters. And, legislators sometimes sit in a judicial capacity, such as when they rule on impeachment charges of governmental officials, and in the United Kingdom, when law lords, who are officially members of the House of Lords, a primarily legislative body, hear appeals in legal cases.
Historically, in the United Kingdom, certain matters, such as annulments of marriages and division of personal property of deceased persons, were the responsibility of ecclesiastical courts, in which clergy presided. Many countries, such as and Pakistan and Iran, continue to have religious courts, particularly in matters of family law, that operate in addition to their ordinary courts with full authority to enter legally binding decisions. Other countries, such as Afghanistan under its newly adopted constitution, have a unitary court system in which some judges have primarily secular training, while others judges have primarily religious training.
Often parties in contractual relationships with each other enter into "arbitration agreements" which vests quasi-judicial authority to resolve disputed between the parties in a non-judge chosen by mutually agreed means. Sometimes these persons are legally trained, and sometimes they are not, but have some relevant subject matter expertise. Civil justice in the Roman Empire, which provided some of the foundational doctrines for Western systems often handled civil disputes through an arbitration-like mechanism. Courts can typically be called upon to enforce a final decision rendered by an arbitrator pursuant to an arbitration agreement if necessary.
Power of judges[9]
In common law countries, such as the United States, and those with roots in the Commonwealth of Nations, judges have a number of powers which are not known to exist, or are not acknowledged to exist, in civil law legal systems, which collectively make the judiciary a more powerful political force than in civil law countries.
One of these powers is the "contempt of court" power. In a common law system, a judge typically has the power to summarily punish with a fine or imprisonment any misconduct which takes place in the courtroom, and to similarly punish violations of the court's orders, after a hearing, when they take place outside the courtroom. This power, in turn, may be used by common law judges to enforce orders for injunctive relief, which is a court order to take or refrain from taking some particular act, directed at the individual who must do so. This power is a vestige of authority that members of the nobility had when they personally presided over disputes between their subjects. It has the effect of giving common law country judges great power to fashion remedies, such as school desegregation orders and restraining orders directed at individuals. Civil law judges, in contrast, outside of specialized courts with narrowly delineated powers, generally lack contempt power or the power to impose injunctive relief.
Another power of every judge in the United States, generally right down to the level of the magistrate, is the power to declare a law unconstitutional and invalid, at least as applied in a particular case. In contrast, most civil law countries limit this power to a special constitutional court, and all other judges are required to follow the enacted laws, even if the judge personally believes those laws to be unconstitutional, in the absence of an order from the constitutional court. However, if a person believes that a law applied against them in court is unconstitutional, they can apply for consideration in the constitutional court and, if the law is indeed declared unconstitutional, file an appeal against the ruling based on the now-invalidated law.
Similarly, in the common law system, cases in which the government administration is at issue, known as public law cases, for example, suits claiming violations of civil rights by government officials, are often heard by the same judges who handle criminal cases and disputes between private individuals. In contrast, in civil law countries, only designated judges or quasi-judges (such as the Conseil d'État in France) can hear public law cases, and ordinary judges can hear only criminal cases and cases involving private parties.
Judges in a common law system are also empowered to make law guided by past precedent, or to choose to ignore past precedent as no longer applicable, based on a concept known as "stare decisis" ,"to stand by what has been decided", in cases where no statute or prior case clearly mandates a particular result, and in cases where past precedents, for some reason, no longer appear to provide firm guidance as to the current state of the law[10].
Civil law judges, likewise, have some powers not usually held by common law judges. Most importantly, a common law judge is usually required to base a decision almost exclusively on the evidence provided by the parties to a case during the course of a trial, or a hearing, or in documents filed with the court. In contrast, a civil law judge frequently has the authority to investigate the facts of a case independently of evidence provided by the parties to that case, in what is known as an "inquisitorial" role.
Oversight of judges
Federal judges in the United States (except those who have recess appointments) serve life terms for their period of "good behavior." Once appointed, state judges in the United States usually serve terms for a fixed period of years, after which they must be re-elected, face a retention election, or face reappointment by an appropriate authority. The law governing judicial elections in the United States is in flux with the general tendency being to discard historical limitations on the ability of a judge to campaign based upon judicial philosophy.
Most judicial systems in the United States have procedures for investigating breaches of judicial ethics and disability. Lapses of judicial ethics include matters such as taking bribes, open defiance of a binding court order, ruling upon a case in which the judge has a personal interest, failure to account for court funds, failure to conduct court proceedings with a suitably judicial demeanor, harassment of judicial employees or a judge's conviction of a serious offense unrelated to judicial service. Disability complaints often involve allegations that a judge is beginning to show symptoms of alcoholism, dementia or an inability to stay awake.
Complaints about a judge's judicial ethics or disability may ordinarily not contest the merits of the determination made by the judge, which can only be contested in the appellate process. Judges in the United States generally have absolute immunity for personal liability in the form of money damages for their discretionary judicial acts.
Almost every state and the federal government provides the legislature with the authority to remove a judge for cause in a quasi-judicial impeachment proceeding in which the legislative body hears evidence and renders a super-majority verdict limited to removal from office. Often the standard is "high crimes and misdemeanors" or failure to engage in "good behavior" while in office.
Many state judicial systems also have either a special commission or board charged with investigating alleged lapses of judicial ethics or disability, or vest that power in their highest court, usually a state supreme court. Such determinations may be appealed to the Supreme Court of the United States only to the extent that they involve the final decision of a state court system and pose a federal law question.
Some violations of judicial ethics, such as taking bribes or converting public funds, are also federal or state crimes investigated and prosecuted by the appropriate prosecutor.
In the federal system, there is no outside grievance body with the authority to discipline a U.S. Supreme Court justice. The U.S. Supreme Court has supervisory authority over the entire federal judiciary, in addition to its appellate responsibilities, and it has used this authority to establish certain procedures for investigating and addressing lapses of judicial ethics by federal judges[11].
In Canada, Justices (Justices of Peace) are appointed provincially to preside over minor cases, while Judges are appointed federally. Neither can be removed from office until they reached the retirement age of 65, 70 or 75 (depending on the type of appointment) unless they are found to have been in serious misconduct, in which case, the House of Commons and Senate (federally appointed) or the Judicial Council (provincially appointed) can pass a motion to remove a judge/justice from office.
Appeal
In law, an appeal is a process for making a formal challenge to an official decision. Depending on circumstances, appeals may be made to the same authority or to a higher judicial authority. In common law jurisdictions, most commonly, this means formally filing a notice of appeal with a lower court, indicating one's intention to take the matter to the next higher court with jurisdiction over the matter, and then actually filing the appeal with the appropriate appellate court[12].
An appellate court is a court that hears cases, in which a lower court - either a trial court or a lower-level appellate court - has already made a decision, but in which at least one party to the action wants to challenge this ruling based upon some legal grounds that are allowed to be appealed either by right or by leave of the appellate court. These grounds typically include errors of law, fact, or due process.
In different jurisdictions, appellate courts are also called appeals courts, courts of appeals, superior courts, or supreme courts.
Who can appeal
A party who files an appeal is called an appellant or petitioner, and a party on the other side is an appellee or respondent. Cross-appeals can also occur, when more than one party to a case is unhappy with the decision in some way, often when the winning party claims that more damages were deserved than were awarded.
The appellant is the party who, having lost part or all their claim in a lower court decision, is appealing to a higher court to have their case reconsidered. This is usually done on the basis that the lower court judge erred in the application of law, but it may also be possible to appeal on the basis of court misconduct, or that a finding of fact was entirely unreasonable to make on the evidence.
The appellant in the new case can be either the plaintiff (or claimant), defendant, or respondent (appellee) from the lower case, depending on who was the losing party. The winning party from the lower court, however, is now the respondent. In unusual cases the appellant can be the victor in the court below, but still appeal[13] the claimant appealed (successfully) on the basis that, although he won in the court below, the lower court had applied the wrong measure of damages and he had not been fully recompensed.
An appellee is the party to an appeal in which the lower court judgment was in its favor. The appellee is required to respond to the petition, oral arguments, and legal briefs of the appellant. In general, the appellee takes the procedural posture that the lower court's decision should be affirmed.
Ability to appeal
An appeal as of right is one that is guaranteed by statute or some underlying constitutional or legal principle. The appellate court cannot refuse to listen to the appeal. An appeal by leave or permission requires the appellant to move for leave to appeal; in such a situation either or both of the lower court and the appellate court may have the discretion to grant or refuse the appellant's demand to appeal the lower court's decision.
In tort, equity, or other civil matters either party to a previous case may file an appeal. In criminal matters, however, the state or prosecution generally has no appeal as of right. And due to the double jeopardy principle, the state or prosecution may never appeal a jury or bench verdict. But in some jurisdictions, the state or prosecution may appeal as of right from a trial court's dismissal of an indictment in whole or in part or from a trial court's granting of a defendant's suppression motion[14].
By convention in some law reports, the appellant is named first. This can mean that where it is the defendant who appeals, the name of the case in the law reports reverses (in some cases twice) as the appeals work their way up the court hierarchy. This is not always true, however. In the United States federal courts, the parties names always stay in the same order as the lower court when an appeal is taken to the circuit courts of appeals, and are re-ordered only if the appeal reaches the United States Supreme Court.
Notice of appeal
A notice of appeal is a form or document that the appellant fills out to start the appeals process. More commonly, and with better possibility of a favorable outcome, the appellant's attorney, law firm, or their paralegal actually types it out, signs it, and files it with the appropriate court clerk's office. Some courts have samples of a notice of appeal on line.
Even if the document is not typed out, it is very important to sign the form, as most court systems will deny an appeal, or may even fine a person who files an unsigned.
In most court systems, the notice of appeal is the "document a person must file with the trial court in order to pursue an appeal." However, in some systems, the appellant must file it instead, or also, with the appellate court and all other parties, such as the appellee. The notice is then defined as "Formal notice served to an appellate court (and to parties involved in a case) by a litigant-party to inform them of its intention to request review of a lower-court's order." For this reason, it is also extremely important to contact the court clerk's offcie, or to read the decision, as to where, with whom, and how to file the notice.
The statute of limitations of actions to appeal is tradtionally very short - measured in days, not years. In the Federal Court system, it is ten days; in many state systems it is 20 to 30 days. When to file can be as important as where, to whom, and how to file the form.
The United States Supreme Court uses a discretionary (for the court, not the appellant) notice of appeal called the writ of certiorari.
How an appeal is processed
Generally speaking the appellate court examines the record of evidence presented in the trial court and the law that the lower court applied and decides whether that decision was legally sound or not. The appellate court will typically be deferential to the lower court's findings of fact (such as whether a defendant committed a particular act), unless clearly erroneous, and so will focus on the court's application of the law to those facts (such as whether the act found by the court to have occurred fits a legal definition at issue).
If the appellate court finds no defect, it "affirms" the judgment. If the appellate court does find a legal defect in the decision, it may "modify" the ruling to correct the defect, or it may nullify "reverse" or "vacate" the whole decision or any part of it. It may in addition send the case back "remand" or "remit" to the lower court for further proceedings to remedy the defect.
In some cases an appellate court may review a lower court decision de novo (or completely), challenging even the lower court's findings of fact. This might be the proper standard of review[15].
Another situation is where appeal is by way of re-hearing. Certain jurisdictions permit certain appeals to cause the trial to be heard afresh in the appellate court. An example would be an appeal from a Magistrates' court to the Crown Court in England and Wales.
Sometimes the appellate court finds a defect in the procedure the parties used in filing the appeal and dismisses the appeal without considering its merits, which has the same effect as affirming the judgment below. (This would happen, for example, if the appellant waited too long, under the appellate court's rules, to file the appeal.) In England and many other jurisdictions, however, the phrase appeal dismissed is equivalent to the U.S. term affirmed; and the phrase appeal allowed is equivalent to the U.S. term reversed.
Generally there is no trial in an appellate court, only consideration of the record of the evidence presented to the trial court and all the pre-trial and trial court proceedings are reviewed - unless the appeal is by way of re-hearing, new evidence will usually only be considered on appeal in very rare instances, for example if that material evidence was unavailable to a party for some very significant reason such as prosecutorial misconduct.
In some systems an appellate court will only consider the written decision of the lower court, together with any written evidence that was before that court and is relevant to the appeal. In other systems, the appellate court will normally consider the record of the lower court. In those cases the record will first be certified by the lower court[16].
The appellant has the opportunity to present arguments for the granting of the appeal and the appellee (or respondent) can present arguments against it. Arguments of the parties to the appeal are presented through their appellate lawyers, if represented, or pro se if the party has not engaged legal representation. Those arguments are presented in written briefs and sometimes in oral argument to the court at a hearing. At such hearings each party is allowed a brief presentation at which the appellate judges ask questions based on their review of the record below and the submitted briefs.
It is important to note that in an adversarial system appellate courts do not have the power to review lower court decisions unless a party appeals it. Therefore if a lower court has ruled in an improper manner or against legal precedent that judgment will stand even if it might have been overturned on appeal.
[1] About this system see Anne Fitzpatrick, The Judicial System, The Creative Company.1998.
,
[2] See Felix Frankfurter, James, The Business of the Supreme Court: A Study in the Federal Judicial System, Transaction Publishers,2000.
,
[3] See Code Napoleon: Or the French Civil Code ,by Barrister of the Inner Temple (Author), Beard Books , 1999.
[4] For example, while common law judicial procedure generally contemplates a single evidentiary trial, many cases are actually resolved through testimony taken from witnesses in isolated depositions prior to trial that support written presentations to a judge. Similarly, while civil law judges must have some statutory point of departure for their legal rulings, there are accepted methods of legal reasoning that often afford them greater latitude to fit the law to the circumstances of an unusual case then a stark statement of the underlying principles of the system would suggest. This can serve a purpose similar to the common law method of legal reasoning known as stare decisis.
[5] See By Cass R. Sunstein, Are Judges Political?: An Empirical Analysis of the Federal Judiciary, Brookings Institution Press.2003.pp43-44.
,
[6] Oliver Wendell Holmes,The Common Law, Kessinger Publishing, 2005.p21.
[7] For example, in Finland and Sweden, there are two kinds of judges in district courts: a legally-trained judge functions as the president of the court, while judges elected for a four-year term from the population, without any special legal training, serve as lay members of the court. Judges in special courts and appellate courts are always legally trained. Lay judges do not function like a common-law jury. In the usual case, three lay judges in district courts hear criminal cases in cooperation with a legally trained judge, each judge – legally trained or not – having an individual vote. However, in some jurisdictions, such as Denmark, criminal cases in severe matters, such as homicide, require a trial by jury, where the jury decides upon the issue of mens rea. Issues of law – and also the assessment of what has factually been proven to have taken place – is the responsility of the judge, who guides the jury by means of a jury instruction. Civil cases, however, are heard exclusively by legally trained judges.
[8] See Robert A. Katzmann, Judges and Legislators: Toward Institutional Comity, Brookings Institution Press.2004.ch3.
,
[9] Carlo Guarnieri (Author), Patrizia Pederzoli (Author), C. A. Thomas (Editor),The Power of Judges: A Comparative Study of Courts and Democracy, Oxford University Press, 2002.ch1.
[10] For example, in a case of "first impression" which has never arisen in a publicly reported case in a state, a judge must choose which rule will apply, usually informed by decisions which have been made in similar cases in other jurisdictions and based on the public policies involved. Judges in civil law systems, in contrast, are strictly forbidden from "making law" and, as a general rule, are not bound by or even encouraged to refer to precedents established in prior similar cases.
[11] Patricia J. Murphy,The U.S. Supreme Court, Compass Point Books,2005.
[12] See Lester B. Orfield, Criminal Procedure From Arrest To Appeal, Imprint unknown – 1972.
,
[13] For example, in Doyle v Olby (Ironmongers) Ltd ,1969, 2 QB 158.
[14] Likewise, in some jurisdictions, the state or prosecution may appeal an issue of law by leave from the trial court and/or the appellate court.
[15] For example, if the lower court resolved the case by granting a pre-trial motion to dismiss or motion for summary judgment which is usually based only upon written submissions to the trial court and not on any trial testimony.
[16] See Herbert Monte Levy, How to Handle an Appeal, Practising Law Institute,2001.ch2.
Judicial Authority
Dr Khalil Hussein
Professor at Lebanese University
Director of studies at Lebanese Parliament
In the law, the judiciary or judicial system is the system of courts which administer justice in the name of the sovereign or state, a mechanism for the resolution of disputes[1].
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 India, United States, France and the People's Republic of China:
· In Indian democracy, courts have the final say until the constitution itself is amended although a supreme court judgement in 1970's ruled that Parliament doesn't have the authority to change the basic structure of Indian constitution.
· in the United States government, the Supreme Court is the final authority on the interpretation of the federal Constitution and all statutes and regulations created pursuant to it;
· in France, the final authority on the interpretation of the law is the Conseil d'État for administrative cases, and the Court of Cassation for civil and criminal cases;
· 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.
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[2].
In theory, in the French civil law tradition[3], 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).
Judges
A judge or justice is an official who presides over a court. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions.
Judges in the Legal System
There are significant differences between the role of a judge in the common law system descended from British practice, and civil law systems descendant from continental European judicial practice. The descriptions below are necessarily archetypical. Details vary from judicial system to judicial system. In many cases, the judicial systems have experienced convergent evolution, expressly or unconsciously adopting similar practices or operating in a manner that minimizes the impact of formal differences between the archetypical role of each system's judges[4].
Judges in common law legal systems
In common law countries, judges usually operate within the adversarial system of justice, and the trial level, usually preside over court proceedings as the sole judge present, with only narrow exceptions (e.g. in the United States, certain election law cases).
Professional Background
Common law judges are generally appointed or elected from among practicing attorneys after prior careers as practicing attorneys, although many receive brief educational programs specific to judging once taking the bench. Judges are frequently drawn from the ranks of barristers, as opposed to solicitors where a distinction is made between the two as separate legal professions.
Many U.S. states permit non-lawyers to serve as justices of the peace or as inferior jurisdiction judges in rural areas, but this practice is generally limited to less serious criminal offenses and small claims. Federal judges are not required by law to be attorneys, but the practice of appointing attorneys to the federal bench is almost universal[5].
Judges and Juries
In the common law system[6], when there is a jury trial in the trial courts, the jury generally decides questions of fact (guilty or not guilty, whether a party was negligent, etc.) while a single judge decides questions of law (under common-law systems, one of the judge's most important powers is to craft jury instructions).
In a trial before a judge, sometimes called a "bench trial", a single judge decides issues of both law and fact. Outside the United States, only a very narrow category of civil cases are tried before juries and usually criminal cases are tried before juries only in more serious cases. In the United States, cases where a jury is not available are the exception, rather than the norm, even in relatively minor civil and criminal matters. In United States practice, the right to a jury usually hinges on historical distinctions made between law and equity in Britain prior to the adoption of the United States Constitution.
Because both civil and criminal procedure in common law systems developed in the context of a system where the ultimate decisions were usually deferred to a jury (even though this is often not the case outside the United States in civil cases), common law judges are limited in their power to resolve matters prior to a full trial, even if they have all information that they feel they need to resolve a case involving disputed facts.
Historically, in Europe in the Middle Ages, juries often stated the law by consensus or majority and the judge applied it to the facts as he saw them. This practice no longer exists. The power of juries to determine the law in a manner contrary to that dictated by the trial judge, or even ignore the law (which is often called jury nullification), has been controversial in American jurisprudence from very early on in American history. Generally speaking, current practice in U.S. law is to formally deny that such a power exists. But, U.S. law also maintains procedural protections such as a prohibiting testimony regarding jury deliberations, and disallowing government appeals of acquittals by juries in criminal cases, that have the practical effect of making it possible for juries to make their own determinations of law.
U.S. legal practice also has an institution called a grand jury which is presided over on a day to day basis by a prosecutor, rather than a judge, although it is ultimately under the supervision of a judge. This institution investigates crimes via the subpoena power and screens serious criminal charges to determine if a prosecution is justified.
Appellate Judging
In common law practice, appeals are usually decided by a panel of judges, generally three appellate judges chosen at random in an intermediate appellate court and the entire composition of the court in the relevant highest appellate court in the jurisdiction, although decisions made by a subordinate or inferior jurisdiction judge are sometimes reviewed by a single judge.
Judges in civil law system
In the civil law system, serious matters are almost always decided at the trial level by at least three judges, and sometimes more, often in combination with lay persons in serious criminal manners, although one of those judges may take the lead in gathering evidence in a case. In civil law systems typically only the equivalent of U.S. small claims and misdemeanors are handled by a single trial judge[7].
In civil law practice, appeals are usually decided by a panel of multiple judges. State courts can be called district courts. The highest appellate court in a civil law jurisdiction, often translated "supreme court" in English, is typically organized more like an intermediate appellate court in common law practice, in that decisions are usually made by a panel of judges that does not include all judges who are a member of that court. Also unlike common law practice, judges are typically assigned to appeals in the highest appellate court based on specialties in a particular type of law, rather than at random. Typically the only appellate court in a civil law system in which all members of the court will typically decide a case that will operate in a civil law country is the constitutional court.
Non-judges with judicial power
Certain non-judges are vested with judicial power by virtue of their political or religious office, or their position as a responsible government employee.[8]
In Japan, police officers can order punishments for minor offenses without approval from a judge. In U.S. military law, military officers can dispense justice for minor military law infractions without holding a court-martial, and also preside over courts-martial involving more serious offenses. A number of jurisdictions give mayors of municipalities judicial authority similar to a justice of the peace or magistrate. Many courts with probate jurisdiction give court clerks quasi-judicial authority as "registrars" of the court. Members of county commissions and city councils in the United States often have quasi-judicial authority in zoning matters. And, legislators sometimes sit in a judicial capacity, such as when they rule on impeachment charges of governmental officials, and in the United Kingdom, when law lords, who are officially members of the House of Lords, a primarily legislative body, hear appeals in legal cases.
Historically, in the United Kingdom, certain matters, such as annulments of marriages and division of personal property of deceased persons, were the responsibility of ecclesiastical courts, in which clergy presided. Many countries, such as and Pakistan and Iran, continue to have religious courts, particularly in matters of family law, that operate in addition to their ordinary courts with full authority to enter legally binding decisions. Other countries, such as Afghanistan under its newly adopted constitution, have a unitary court system in which some judges have primarily secular training, while others judges have primarily religious training.
Often parties in contractual relationships with each other enter into "arbitration agreements" which vests quasi-judicial authority to resolve disputed between the parties in a non-judge chosen by mutually agreed means. Sometimes these persons are legally trained, and sometimes they are not, but have some relevant subject matter expertise. Civil justice in the Roman Empire, which provided some of the foundational doctrines for Western systems often handled civil disputes through an arbitration-like mechanism. Courts can typically be called upon to enforce a final decision rendered by an arbitrator pursuant to an arbitration agreement if necessary.
Power of judges[9]
In common law countries, such as the United States, and those with roots in the Commonwealth of Nations, judges have a number of powers which are not known to exist, or are not acknowledged to exist, in civil law legal systems, which collectively make the judiciary a more powerful political force than in civil law countries.
One of these powers is the "contempt of court" power. In a common law system, a judge typically has the power to summarily punish with a fine or imprisonment any misconduct which takes place in the courtroom, and to similarly punish violations of the court's orders, after a hearing, when they take place outside the courtroom. This power, in turn, may be used by common law judges to enforce orders for injunctive relief, which is a court order to take or refrain from taking some particular act, directed at the individual who must do so. This power is a vestige of authority that members of the nobility had when they personally presided over disputes between their subjects. It has the effect of giving common law country judges great power to fashion remedies, such as school desegregation orders and restraining orders directed at individuals. Civil law judges, in contrast, outside of specialized courts with narrowly delineated powers, generally lack contempt power or the power to impose injunctive relief.
Another power of every judge in the United States, generally right down to the level of the magistrate, is the power to declare a law unconstitutional and invalid, at least as applied in a particular case. In contrast, most civil law countries limit this power to a special constitutional court, and all other judges are required to follow the enacted laws, even if the judge personally believes those laws to be unconstitutional, in the absence of an order from the constitutional court. However, if a person believes that a law applied against them in court is unconstitutional, they can apply for consideration in the constitutional court and, if the law is indeed declared unconstitutional, file an appeal against the ruling based on the now-invalidated law.
Similarly, in the common law system, cases in which the government administration is at issue, known as public law cases, for example, suits claiming violations of civil rights by government officials, are often heard by the same judges who handle criminal cases and disputes between private individuals. In contrast, in civil law countries, only designated judges or quasi-judges (such as the Conseil d'État in France) can hear public law cases, and ordinary judges can hear only criminal cases and cases involving private parties.
Judges in a common law system are also empowered to make law guided by past precedent, or to choose to ignore past precedent as no longer applicable, based on a concept known as "stare decisis" ,"to stand by what has been decided", in cases where no statute or prior case clearly mandates a particular result, and in cases where past precedents, for some reason, no longer appear to provide firm guidance as to the current state of the law[10].
Civil law judges, likewise, have some powers not usually held by common law judges. Most importantly, a common law judge is usually required to base a decision almost exclusively on the evidence provided by the parties to a case during the course of a trial, or a hearing, or in documents filed with the court. In contrast, a civil law judge frequently has the authority to investigate the facts of a case independently of evidence provided by the parties to that case, in what is known as an "inquisitorial" role.
Oversight of judges
Federal judges in the United States (except those who have recess appointments) serve life terms for their period of "good behavior." Once appointed, state judges in the United States usually serve terms for a fixed period of years, after which they must be re-elected, face a retention election, or face reappointment by an appropriate authority. The law governing judicial elections in the United States is in flux with the general tendency being to discard historical limitations on the ability of a judge to campaign based upon judicial philosophy.
Most judicial systems in the United States have procedures for investigating breaches of judicial ethics and disability. Lapses of judicial ethics include matters such as taking bribes, open defiance of a binding court order, ruling upon a case in which the judge has a personal interest, failure to account for court funds, failure to conduct court proceedings with a suitably judicial demeanor, harassment of judicial employees or a judge's conviction of a serious offense unrelated to judicial service. Disability complaints often involve allegations that a judge is beginning to show symptoms of alcoholism, dementia or an inability to stay awake.
Complaints about a judge's judicial ethics or disability may ordinarily not contest the merits of the determination made by the judge, which can only be contested in the appellate process. Judges in the United States generally have absolute immunity for personal liability in the form of money damages for their discretionary judicial acts.
Almost every state and the federal government provides the legislature with the authority to remove a judge for cause in a quasi-judicial impeachment proceeding in which the legislative body hears evidence and renders a super-majority verdict limited to removal from office. Often the standard is "high crimes and misdemeanors" or failure to engage in "good behavior" while in office.
Many state judicial systems also have either a special commission or board charged with investigating alleged lapses of judicial ethics or disability, or vest that power in their highest court, usually a state supreme court. Such determinations may be appealed to the Supreme Court of the United States only to the extent that they involve the final decision of a state court system and pose a federal law question.
Some violations of judicial ethics, such as taking bribes or converting public funds, are also federal or state crimes investigated and prosecuted by the appropriate prosecutor.
In the federal system, there is no outside grievance body with the authority to discipline a U.S. Supreme Court justice. The U.S. Supreme Court has supervisory authority over the entire federal judiciary, in addition to its appellate responsibilities, and it has used this authority to establish certain procedures for investigating and addressing lapses of judicial ethics by federal judges[11].
In Canada, Justices (Justices of Peace) are appointed provincially to preside over minor cases, while Judges are appointed federally. Neither can be removed from office until they reached the retirement age of 65, 70 or 75 (depending on the type of appointment) unless they are found to have been in serious misconduct, in which case, the House of Commons and Senate (federally appointed) or the Judicial Council (provincially appointed) can pass a motion to remove a judge/justice from office.
Appeal
In law, an appeal is a process for making a formal challenge to an official decision. Depending on circumstances, appeals may be made to the same authority or to a higher judicial authority. In common law jurisdictions, most commonly, this means formally filing a notice of appeal with a lower court, indicating one's intention to take the matter to the next higher court with jurisdiction over the matter, and then actually filing the appeal with the appropriate appellate court[12].
An appellate court is a court that hears cases, in which a lower court - either a trial court or a lower-level appellate court - has already made a decision, but in which at least one party to the action wants to challenge this ruling based upon some legal grounds that are allowed to be appealed either by right or by leave of the appellate court. These grounds typically include errors of law, fact, or due process.
In different jurisdictions, appellate courts are also called appeals courts, courts of appeals, superior courts, or supreme courts.
Who can appeal
A party who files an appeal is called an appellant or petitioner, and a party on the other side is an appellee or respondent. Cross-appeals can also occur, when more than one party to a case is unhappy with the decision in some way, often when the winning party claims that more damages were deserved than were awarded.
The appellant is the party who, having lost part or all their claim in a lower court decision, is appealing to a higher court to have their case reconsidered. This is usually done on the basis that the lower court judge erred in the application of law, but it may also be possible to appeal on the basis of court misconduct, or that a finding of fact was entirely unreasonable to make on the evidence.
The appellant in the new case can be either the plaintiff (or claimant), defendant, or respondent (appellee) from the lower case, depending on who was the losing party. The winning party from the lower court, however, is now the respondent. In unusual cases the appellant can be the victor in the court below, but still appeal[13] the claimant appealed (successfully) on the basis that, although he won in the court below, the lower court had applied the wrong measure of damages and he had not been fully recompensed.
An appellee is the party to an appeal in which the lower court judgment was in its favor. The appellee is required to respond to the petition, oral arguments, and legal briefs of the appellant. In general, the appellee takes the procedural posture that the lower court's decision should be affirmed.
Ability to appeal
An appeal as of right is one that is guaranteed by statute or some underlying constitutional or legal principle. The appellate court cannot refuse to listen to the appeal. An appeal by leave or permission requires the appellant to move for leave to appeal; in such a situation either or both of the lower court and the appellate court may have the discretion to grant or refuse the appellant's demand to appeal the lower court's decision.
In tort, equity, or other civil matters either party to a previous case may file an appeal. In criminal matters, however, the state or prosecution generally has no appeal as of right. And due to the double jeopardy principle, the state or prosecution may never appeal a jury or bench verdict. But in some jurisdictions, the state or prosecution may appeal as of right from a trial court's dismissal of an indictment in whole or in part or from a trial court's granting of a defendant's suppression motion[14].
By convention in some law reports, the appellant is named first. This can mean that where it is the defendant who appeals, the name of the case in the law reports reverses (in some cases twice) as the appeals work their way up the court hierarchy. This is not always true, however. In the United States federal courts, the parties names always stay in the same order as the lower court when an appeal is taken to the circuit courts of appeals, and are re-ordered only if the appeal reaches the United States Supreme Court.
Notice of appeal
A notice of appeal is a form or document that the appellant fills out to start the appeals process. More commonly, and with better possibility of a favorable outcome, the appellant's attorney, law firm, or their paralegal actually types it out, signs it, and files it with the appropriate court clerk's office. Some courts have samples of a notice of appeal on line.
Even if the document is not typed out, it is very important to sign the form, as most court systems will deny an appeal, or may even fine a person who files an unsigned.
In most court systems, the notice of appeal is the "document a person must file with the trial court in order to pursue an appeal." However, in some systems, the appellant must file it instead, or also, with the appellate court and all other parties, such as the appellee. The notice is then defined as "Formal notice served to an appellate court (and to parties involved in a case) by a litigant-party to inform them of its intention to request review of a lower-court's order." For this reason, it is also extremely important to contact the court clerk's offcie, or to read the decision, as to where, with whom, and how to file the notice.
The statute of limitations of actions to appeal is tradtionally very short - measured in days, not years. In the Federal Court system, it is ten days; in many state systems it is 20 to 30 days. When to file can be as important as where, to whom, and how to file the form.
The United States Supreme Court uses a discretionary (for the court, not the appellant) notice of appeal called the writ of certiorari.
How an appeal is processed
Generally speaking the appellate court examines the record of evidence presented in the trial court and the law that the lower court applied and decides whether that decision was legally sound or not. The appellate court will typically be deferential to the lower court's findings of fact (such as whether a defendant committed a particular act), unless clearly erroneous, and so will focus on the court's application of the law to those facts (such as whether the act found by the court to have occurred fits a legal definition at issue).
If the appellate court finds no defect, it "affirms" the judgment. If the appellate court does find a legal defect in the decision, it may "modify" the ruling to correct the defect, or it may nullify "reverse" or "vacate" the whole decision or any part of it. It may in addition send the case back "remand" or "remit" to the lower court for further proceedings to remedy the defect.
In some cases an appellate court may review a lower court decision de novo (or completely), challenging even the lower court's findings of fact. This might be the proper standard of review[15].
Another situation is where appeal is by way of re-hearing. Certain jurisdictions permit certain appeals to cause the trial to be heard afresh in the appellate court. An example would be an appeal from a Magistrates' court to the Crown Court in England and Wales.
Sometimes the appellate court finds a defect in the procedure the parties used in filing the appeal and dismisses the appeal without considering its merits, which has the same effect as affirming the judgment below. (This would happen, for example, if the appellant waited too long, under the appellate court's rules, to file the appeal.) In England and many other jurisdictions, however, the phrase appeal dismissed is equivalent to the U.S. term affirmed; and the phrase appeal allowed is equivalent to the U.S. term reversed.
Generally there is no trial in an appellate court, only consideration of the record of the evidence presented to the trial court and all the pre-trial and trial court proceedings are reviewed - unless the appeal is by way of re-hearing, new evidence will usually only be considered on appeal in very rare instances, for example if that material evidence was unavailable to a party for some very significant reason such as prosecutorial misconduct.
In some systems an appellate court will only consider the written decision of the lower court, together with any written evidence that was before that court and is relevant to the appeal. In other systems, the appellate court will normally consider the record of the lower court. In those cases the record will first be certified by the lower court[16].
The appellant has the opportunity to present arguments for the granting of the appeal and the appellee (or respondent) can present arguments against it. Arguments of the parties to the appeal are presented through their appellate lawyers, if represented, or pro se if the party has not engaged legal representation. Those arguments are presented in written briefs and sometimes in oral argument to the court at a hearing. At such hearings each party is allowed a brief presentation at which the appellate judges ask questions based on their review of the record below and the submitted briefs.
It is important to note that in an adversarial system appellate courts do not have the power to review lower court decisions unless a party appeals it. Therefore if a lower court has ruled in an improper manner or against legal precedent that judgment will stand even if it might have been overturned on appeal.
[1] About this system see Anne Fitzpatrick, The Judicial System, The Creative Company.1998.
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[2] See Felix Frankfurter, James, The Business of the Supreme Court: A Study in the Federal Judicial System, Transaction Publishers,2000.
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[3] See Code Napoleon: Or the French Civil Code ,by Barrister of the Inner Temple (Author), Beard Books , 1999.
[4] For example, while common law judicial procedure generally contemplates a single evidentiary trial, many cases are actually resolved through testimony taken from witnesses in isolated depositions prior to trial that support written presentations to a judge. Similarly, while civil law judges must have some statutory point of departure for their legal rulings, there are accepted methods of legal reasoning that often afford them greater latitude to fit the law to the circumstances of an unusual case then a stark statement of the underlying principles of the system would suggest. This can serve a purpose similar to the common law method of legal reasoning known as stare decisis.
[5] See By Cass R. Sunstein, Are Judges Political?: An Empirical Analysis of the Federal Judiciary, Brookings Institution Press.2003.pp43-44.
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[6] Oliver Wendell Holmes,The Common Law, Kessinger Publishing, 2005.p21.
[7] For example, in Finland and Sweden, there are two kinds of judges in district courts: a legally-trained judge functions as the president of the court, while judges elected for a four-year term from the population, without any special legal training, serve as lay members of the court. Judges in special courts and appellate courts are always legally trained. Lay judges do not function like a common-law jury. In the usual case, three lay judges in district courts hear criminal cases in cooperation with a legally trained judge, each judge – legally trained or not – having an individual vote. However, in some jurisdictions, such as Denmark, criminal cases in severe matters, such as homicide, require a trial by jury, where the jury decides upon the issue of mens rea. Issues of law – and also the assessment of what has factually been proven to have taken place – is the responsility of the judge, who guides the jury by means of a jury instruction. Civil cases, however, are heard exclusively by legally trained judges.
[8] See Robert A. Katzmann, Judges and Legislators: Toward Institutional Comity, Brookings Institution Press.2004.ch3.
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[9] Carlo Guarnieri (Author), Patrizia Pederzoli (Author), C. A. Thomas (Editor),The Power of Judges: A Comparative Study of Courts and Democracy, Oxford University Press, 2002.ch1.
[10] For example, in a case of "first impression" which has never arisen in a publicly reported case in a state, a judge must choose which rule will apply, usually informed by decisions which have been made in similar cases in other jurisdictions and based on the public policies involved. Judges in civil law systems, in contrast, are strictly forbidden from "making law" and, as a general rule, are not bound by or even encouraged to refer to precedents established in prior similar cases.
[11] Patricia J. Murphy,The U.S. Supreme Court, Compass Point Books,2005.
[12] See Lester B. Orfield, Criminal Procedure From Arrest To Appeal, Imprint unknown – 1972.
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[13] For example, in Doyle v Olby (Ironmongers) Ltd ,1969, 2 QB 158.
[14] Likewise, in some jurisdictions, the state or prosecution may appeal an issue of law by leave from the trial court and/or the appellate court.
[15] For example, if the lower court resolved the case by granting a pre-trial motion to dismiss or motion for summary judgment which is usually based only upon written submissions to the trial court and not on any trial testimony.
[16] See Herbert Monte Levy, How to Handle an Appeal, Practising Law Institute,2001.ch2.
