Thejudiciary (also known as thejudicial system,judicature,judicial branch,judiciative branch, andcourt or judiciary system) is the system ofcourts that adjudicates legal disputes/disagreements and interprets, defends, and applies thelaw in legal cases.
The judiciary is the system ofcourts that interprets, defends, and applies thelaw in the name of thestate. The judiciary can also be thought of as the mechanism for the resolution of disputes. Under the doctrine of theseparation of powers, the judiciary generally does not makestatutory law (which is the responsibility of thelegislature) or enforce law (which is the responsibility of theexecutive), but rather interprets, defends, and applies the law to the facts of each case. However, in some countries the judiciary does makecommon law.
In manyjurisdictions the judicial branch has the power to change laws through the process ofjudicial 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 asprimary legislation, the provisions of theconstitution,treaties orinternational law. Judges constitute a critical force for interpretation and implementation of a constitution, thus incommon law countries creating the body of constitutional law.
The most important part wasIus Civile (Latin for "civil law"). This consisted ofMos Maiorum (Latin for "way of the ancestors") andLeges (Latin for "laws").Mos Maiorum was a set of rules of conduct based on social norms created over the years by predecessors. In 451–449 BC, theMos Maiorum was written down in theTwelve Tables.[1][2][3]L' 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.[4] Then the second phase would start, theApud 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.[5]
The most important change in this period was the shift from priest topraetor as the head of the judicial system. The praetor would also make anedict in which he would declare new laws or principles for the year he was elected. This edict is also known as praetorian law.[6][7]
ThePrincipate is the first part of the Roman Empire, which started with the reign ofAugustus. This time period is also known as the "classical era of Roman Law" In this era, the praetor's edict was now known asedictum perpetuum which were all the edicts collected in one edict byHadrian. Also, a new judicial process came up:cognitio extraordinaria (Latin for "extraordinary process").[8][9] 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 advice on behalf of the emperor.[10]
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: theCorpus Iuris Civilis.[11] 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. TheCorpus 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.
During the late Middle Ages, education started to grow. First education was limited to the monasteries and abbeys, but expanded to cathedrals and schools in the city in the 11th century, eventually creating universities.[12] The universities had five faculties: arts, medicine, theology, canon law andIus 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 theCorpus 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.[13]
The period starting in the 11th century with the discovery of theCorpus Iuris Civilis is also called theScholastics, which can be divided in the early and late scholastics. It is characterised with the renewed interest in the old texts.
The rediscovery of the Digesta from theCorpus Iuris Civilis led the university of Bologna to start teaching Roman law.[14] 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 theGlossators to start translating and recreating theCorpus 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.[15]
The successors of the Glossators were thePost-Glossators or Commentators. They looked at a subject in a logical and systematic way by writing comments with the texts, treatises andconsilia, which are advises given according to the old Roman law.[17][18]
Canon law knows a few forms of laws: thecanones, decisions made by Councils, and thedecreta, decisions made by the Popes. The monk Gratian, one of the well-knowndecretists, started to organise all of the church law, which is now known as theDecretum Gratiani, or simply asDecretum. It forms the first part of the collection of six legal texts, which together became known as theCorpus Juris Canonici. It was used bycanonists of theRoman Catholic Church until Pentecost (19 May) 1918, when a revisedCode of Canon Law (Codex Iuris Canonici) promulgated byPope Benedict XV on 27 May 1917 obtained legal force.[19][20][21]
Around the 15th century, a process of reception and acculturation started with both laws. The final product was known asIus 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.[24] In the new legal process, appeal was possible. The process would be partiallyinquisitorial, where the judge would actively investigate all the evidence before him, but also partiallyadversarial, where both parties are responsible for finding the evidence to convince the judge.[25]
Lady Justice (Latin:Justicia), symbol of the judiciary.[26][27] Statue at Shelby County Courthouse, Memphis, Tennessee
After theFrench Revolution, lawmakers stopped interpretation of law by judges, and the legislature was the only body permitted to interpret the law; this prohibition was later overturned by theNapoleonic Code.[28]
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 priorcase law in areas where the legislature has not made law. For instance, thetort ofnegligence is not derived from statute law in most common law jurisdictions. The termcommon law refers to this kind of law. Common law decisions set precedent for all courts to follow. This is sometimes calledstare decisis.
In theUnited States court system, theSupreme Court is the final authority on the interpretation of the federal Constitution and all statutes and regulations created pursuant to it, as well as the constitutionality of the various state laws; in theUS federal court system, federal cases are tried intrial courts, known as theUS district courts, followed byappellate courts and then the Supreme Court.State courts, which try 98% oflitigation,[29] may have different names and organization; trial courts may be called "courts of common plea", appellate courts "superior courts" or "commonwealth courts".[30] 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.[31]
InFrance, the final authority on the interpretation of the law is theCouncil of State for administrative cases, and theCourt of Cassation for civil and criminal cases.
Other countries such asArgentina have mixed systems that include lower courts, appeals courts, acassation court (for criminal law) and a Supreme Court. In this system the Supreme Court is always the final authority, but criminal cases have four stages, one more than civil law does. On the court sits a total of nine justices. This number has been changed several times.
Japan's process for selecting judges is longer and more stringent than in various countries, like theUnited States and inMexico.[32] Assistant judges are appointed from those who have completed their training at the Legal Training and Research Institute located inWako. Once appointed, assistant judges still may not qualify to sit alone until they have served for five years, and have been appointed by theSupreme Court of Japan. Judges require ten years of experience in practical affairs, as a public prosecutor or practicing attorney. In theJapanese judicial branch there is the Supreme Court, eight high courts, fifty district courts, fifty family courts, and 438 summary courts.[33][34]
Justices of theMexican Supreme Court are appointed by thePresident of Mexico, and then are approved by theMexican Senate to serve for a fifteen-year 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 inMexico City. Supreme Court Judges must be of ages 35 to 65 and hold a law degree during the five years preceding their nomination.[35]
Eachstate,district andinhabited territory also has its owncourt system operating within the legal framework of the respective jurisdiction, responsible for hearing cases regardingstate and territorial law. All these jurisdictions also have their ownsupreme courts (or equivalent) which serve as the highest courts of law within their respective jurisdictions.
^Lesaffer, Randall (25 June 2009).European legal history: a cultural and political perspective. Translated by Arriens, Jan. Cambridge, UK. pp. 67, 68.ISBN9780521877985.OCLC299718438.{{cite book}}: CS1 maint: location missing publisher (link)
^Jolowicz, H.F. (1952).Historical Introduction to the Study of Roman Law. Cambridge. p. 108.{{cite book}}: CS1 maint: location missing publisher (link)
^Crawford, M.H. 'Twelve Tables' in Simon Hornblower, Antony Spawforth, and Esther Eidinow (eds.)Oxford Classical Dictionary (4th ed.)
^Lesaffer, Randall (25 June 2009).European legal history: a cultural and political perspective. Translated by Arriens, Jan. Cambridge, UK. pp. 69–75,92–93.ISBN9780521877985.OCLC299718438.{{cite book}}: CS1 maint: location missing publisher (link)
^Lesaffer, Randall (25 June 2009).European legal history: a cultural and political perspective. Translated by Arriens, Jan. Cambridge, UK. pp. 85–86.ISBN9780521877985.OCLC299718438.{{cite book}}: CS1 maint: location missing publisher (link)
^Schulz, Fritz (1953).History of Roman Legal Science. Oxford: Oxford University. p. 53.
^Lesaffer, Randall (25 June 2009).European legal history: a cultural and political perspective. Translated by Arriens, Jan. Cambridge, England. pp. 105–106.ISBN9780521877985.OCLC299718438.{{cite book}}: CS1 maint: location missing publisher (link)
^Lesaffer, Randall (25 June 2009).European legal history: a cultural and political perspective. Translated by Arriens, Jan. Cambridge, UK. pp. 109–113.ISBN9780521877985.OCLC299718438.{{cite book}}: CS1 maint: location missing publisher (link)
^Backman, C.R. (2014).Worlds of Medieval Europe. Oxford University Press. pp. 232–237,247–252.
^Lesaffer, Randall (25 June 2009).European legal history: a cultural and political perspective. Translated by Arriens, Jan. Cambridge, UK. pp. 248–252.ISBN9780521877985.OCLC299718438.{{cite book}}: CS1 maint: location missing publisher (link)
^Lesaffer, Randall (25 June 2009).European legal history: a cultural and political perspective. Translated by Arriens, Jan. Cambridge, UK. pp. 252–254.ISBN9780521877985.OCLC299718438.{{cite book}}: CS1 maint: location missing publisher (link)
^van Asselt, Willem J. (April 2011).Introduction to Reformed Scholasticism. Pleizier, Theo., Rouwendal, P. L. (Pieter Lourens), 1973–, Wisse, Maarten, 1973–. Grand Rapids, Mich.ISBN9781601783196.{{cite book}}: CS1 maint: location missing publisher (link)
^Lesaffer, Randall (25 June 2009).European legal history: a cultural and political perspective. Translated by Arriens, Jan. Cambridge, UK. pp. 254–257.ISBN9780521877985.OCLC299718438.{{cite book}}: CS1 maint: location missing publisher (link)
^Lesaffer, Randall (25 June 2009).European legal history: a cultural and political perspective. Translated by Arriens, Jan. Cambridge, UK. pp. 257–261.ISBN9780521877985.OCLC299718438.{{cite book}}: CS1 maint: location missing publisher (link)
^Backman, C.R. (2014).Worlds of Medieval Europe. Oxford University Press. pp. 237–241.
^Lesaffer, Randall (25 June 2009).European legal history: a cultural and political perspective. Translated by Arriens, Jan. Cambridge, UK. pp. 261–265.ISBN9780521877985.OCLC299718438.{{cite book}}: CS1 maint: location missing publisher (link)
^Lesaffer, Randall (25 June 2009).European legal history: a cultural and political perspective. Translated by Arriens, Jan. Cambridge, UK. p. 265.ISBN9780521877985.OCLC299718438.{{cite book}}: CS1 maint: location missing publisher (link)
^Izbicki, T.M. (2015).The Eucharist in Medieval Canon Law. Cambridge University Press. pp. xv.ISBN9781107124417.
^Dębiński, Antoni (2010).Church and Roman law. Lublin: Wydawnictwo KUL. pp. 82–96.ISBN9788377020128.
^Lesaffer, Randall (25 June 2009).European legal history: a cultural and political perspective. Translated by Arriens, Jan. Cambridge, UK. pp. 265–266,269–274.ISBN9780521877985.OCLC299718438.{{cite book}}: CS1 maint: location missing publisher (link)
^Hamilton, Marci.God vs. the Gavel, p. 296 (Cambridge University Press 2005): "The symbol of the judicial system, seen in courtrooms throughout the United States, is blindfolded Lady Justice."
^Fabri, Marco.The challenge of change for judicial systems, p, 137 (IOS Press 2000): "the judicial system is intended to be apolitical, its symbol being that of a blindfolded Lady Justice holding balanced scales."
