Court of law

by **Admin** Mon Dec 07, 2009 1:35 pm

1.Functions of courts
1.1. Keeping the peace
The primary function of any court system—to help keep domestic peace—is so obvious that it is rarely considered or mentioned. If there were no institution that was accepted by the citizens of a society as an impartial and authoritative judge of whether a person had committed a crime and, if so, what type of punishment should be meted out, vigilantes offended by the person’s conduct might well take the law into their own hands and proceed to punish the alleged miscreant according to their uncontrolled discretion. If no agency were empowered to decide private disputes impartially and authoritatively, people would have to settle their disputes by themselves, with power rather than legitimate authority likely being the basis of such decisions. Such a system might easily degenerate into anarchy. Not even a primitive society could survive under such conditions. Thus, in this most basic sense, courts constitute an essential element of society’s machinery for keeping peace.

1.2. Deciding disputes
In the course of helping to keep the peace, courts are called upon to decide controversies. If, in a criminal case, the defendant (one charged with a crime) denies committing the acts charged against him, the court must choose between his version of the facts and that presented by the prosecution. If the defendant asserts that his actions did not constitute criminal behaviour, the court (often aided by a jury) must decide whether his view of the law and facts or the prosecution’s is correct. In a civil case, if the defendant disputes the plaintiff’s account of what happened between them—for example, whether they entered into a certain contract or agreement—or if he disputes the plaintiff’s view of the legal significance of whatever occurred—for example, whether the agreement was legally binding—the court again must choose between the contentions of the parties. The issues presented to, and decided by, the court may be either factual, legal, or both.

Courts do not, however, spend all their time resolving disputes between opposing parties. Many cases brought before the courts are not contested (e.g., a “no-fault” divorce or a routine debt-collection case). As no dispute exists over the facts or the law, the court’s role in such cases is more administrative than adjudicatory. Moreover, the mere existence of a court may render the frequent exercise of its powers unnecessary. The fact that courts operate by known rules and with reasonably predictable results leads many of those who might otherwise engage in legal action to reach a compromise, because people are typically unwilling to incur the expense of going to court if they believe that there is a good chance that they will lose.

Most people arrested and charged with a crime plead guilty. If they do so with full understanding and without any coercion, the judge generally accepts their admission of guilt. The sole question for the court is to decide whether the defendant should go to jail, pay a fine, pay restitution to the victim, or be subjected to other corrective treatment (the judgment may entail more than one of these punishments). In civil-law countries, some judicial inquiry into the question of guilt or innocence is typically required even after a confession, but the inquiry is generally brief and tends to be perfunctory. The main problem to be resolved is the sentence that should be imposed.

The vast majority of civil cases are also uncontested or, at least, are settled prior to trial. In some instances, serious negotiations begin only after a lawsuit has been filed. Many suits are settled by the parties themselves, without the intervention of the court. Because courts are usually under strong caseload pressures, they encourage such settlements. Consequently, in many Western systems, only a small fraction of civil cases are actually tried. Indeed, in many countries a notable trend of the late 20th and early 21st century has been the decreased reliance upon trials to settle disputes.

The decline in court usage reflects several legal and social trends, most notably the increased desire of the parties to seek immediate relief and the increased options in the systems available to do just that. In the United States, for example, most divorce cases are uncontested, both parties usually being eager to terminate the marriage and often agreeing on related questions concerning support and the custody of children. All the court does in such cases is review what the parties have agreed upon and give the agreement official approval and the legitimacy of law. In other instances, disputes are settled through various methods of alternative dispute resolution, such as arbitration, in which the parties agree that the decision of the arbitration (or arbitration panel or tribunal) will carry the full, binding force of law. Arbitration is commonly used in commercial and labour disputes.

Many other uncontested matters come before courts, such as the adoption of children, the distribution of assets in trusts and estates, and the establishment of corporations. Occasionally questions of law or fact arise that have to be decided by the court, but normally all that is required is judicial supervision and approval. Thus, much of what courts do is administrative in nature.

1.3. Judicial lawmaking
All courts apply preexisting rules (statutes) formulated by legislative bodies, though the procedures vary greatly between common-law and civil-law countries. In applying these rules, however, courts must also interpret them, typically transforming the rules from generalities to specifics and sometimes filling gaps to cover situations never addressed by lawmakers when the legislation was first drafted. As courts decide disputes in individual cases, they create an important by-product beyond peaceful settlements—that is, they develop rules for deciding future cases. The judicial decisions embodying these interpretations then become controlling for future cases, sometimes to the extent that they virtually supplant the legislative enactments themselves. In common-law systems, such decisions are called precedents, and they are rules and policies with just as much authority as a law passed by a legislature. Thus, law is made not only by legislatures but also by the courts.

The common-law system of creating precedents is sometimes called stare decisis (literally, “to stand by decided matters”). Judges are generally expected to follow earlier decisions, not only to save themselves the effort of working out fresh solutions for the same problems each time they occur but also, and primarily, because the goal of the law is to render uniform and predictable justice. Fairness demands that if one individual is dealt with in a certain way today, then another individual engaging in substantially identical conduct under substantially identical conditions tomorrow or a month or year hence should be dealt with in the same way. Reduced to its essentials, precedent simply involves treating similar cases similarly. This system of stare decisis is sometimes referred to as “judge-made law,” as the law (the precedent) is created by the judge, not by a legislature.

In civil-law countries, all judicial decisions are, in theory, based upon legislative enactments, and the doctrine of judicial precedent does not apply. Judges merely “apply” the law created by the legislature. Practice, however, often departs from theory. Although the civil code adopted in these countries is quite comprehensive, attempting to cover nearly every aspect of human conduct and purporting to supply ready-made answers for all problems that can arise, many of the provisions are exceedingly vague (because they are abstract) and are sometimes almost meaningless until applied to concrete situations, when judicial interpretation gives them specific meaning. Furthermore, the legislative codes cannot anticipate all situations that may arise and come before the courts (e.g., the situation in which advances in medical technology enable doctors to keep a legally dead person alive). The gaps in legislation must be and are filled by judicial decisions, as a court is unlikely to refuse to decide a case merely on the grounds that it has not been told in advance the answers to the questions presented to it. Decisions dealing with circumstances unforeseen by the legal codes and giving specific meaning to vague legislative provisions are published in legal volumes in most civil-law countries and are frequently referred to by lawyers and relied upon by judges. They are not considered “binding” in the sense that judges are legally obliged to follow earlier decisions, but they are also not forgotten or disregarded. In actual practice, they have almost as much influence as statutory interpretations in countries that formally adhere to the doctrine of stare decisis.

Judicial lawmaking is more pervasive and more frankly acknowledged in common-law countries than in civil-law ones. In addition to rendering decisions that authoritatively interpret statutes, the courts of common-law countries have created a vast body of law without any statutory foundation whatever. Whenever judges are confronted with a dispute for which there is no clear statutory answer—and this occurs with considerable regularity—they must render decisions in accordance with their own conceptions of justice. Later judges follow these rulings, deciding similar cases in the same manner but distinguishing earlier cases when dissimilar factors are discovered in the cases before them. The later cases also become precedents to be followed in still later cases presenting substantially similar patterns of fact (thus, several precedents may be relevant to a particular case, though they may conflict with each other). The total accumulation of all these judicial decisions is what constitutes “the common law”—the consequence of judges’ deciding cases and setting forth their reasons. In common-law countries, legislation is accordingly more limited in scope than it is in civil-law countries. It does not purport to provide for all possibilities, because large areas of conduct are governed solely by judge-made law.

To speak of precedent as “binding” even in common-law systems is somewhat misleading. As already noted, earlier decisions can be and are distinguished when judges conclude that they are based upon situations differing from those before the court in later cases. Even more significant, earlier decisions can be overruled by the courts that rendered them (though not by courts lower in the judicial hierarchy) when the judges conclude that the decisions have proved to be so erroneous or unwise as to be unsuited for current or future application. The Supreme Court of the United States, for example, has overruled many of its own earlier decisions, much to the consternation of those who are unable to accept the inevitability of judicial lawmaking. Many of these reversals have been in the field of constitutional law, in which simple legislative correction of an erroneous judicial interpretation of the Constitution is impossible and in which the only alternative is the exceedingly slow, cumbersome, costly, and difficult process of constitutional amendment. Nevertheless, the power to overrule decisions is not restricted to constitutional interpretations; it also extends to areas of purely statutory and purely judge-made law as well, areas in which legislative action would be equally capable of accomplishing needed changes. Even in the United Kingdom, which does not have a codified constitution and which has traditionally followed a far more rigid doctrine of stare decisis than the United States, the House of Lords, in its role as the highest court, sometimes departs from precedent.

The desirability of judicial lawmaking has long been the subject of lively debate in both civil- and common-law countries. It is universally accepted that courts in democracies should not arrogate to themselves unrestricted legislative power, because the judiciary is rarely subject to the same democratic accountability as legislatures. But when existing statutes and precedents are outmoded or manifestly unfair as applied to specific cases before the courts, should not judges be able to change the law in order to achieve what they conceive to be just results or to avoid what they consider unjust results? Few observers—especially among judges—believe that rigid adherence to the letter of the law is more important than achieving fair and just resolutions of disputes.

The extent to which the judges should be bound by statutes and case precedents as against their own ethical ideas and concepts of social, political, and economic policy is an important question, as is the matter of which should prevail when justice and law appear to judges to conflict with each other. These are questions upon which reasonable persons disagree vigorously, even when they are in basic agreement on the proposition that some degree of judicial lawmaking is inevitable. The proper tempo and scope of judicial change are what is mainly at issue. How quickly should judges act to remedy injustice, and when should they consider an existing rule to be so established that its alteration calls for constitutional amendment or legislative enactment rather than judicial decision? As many dissenting opinions attest, judges themselves disagree on the answers to these questions, even when they are sitting on the same bench hearing the same case.

Nor should it be assumed that so-called “literal” or “strict” interpretation of documents such as constitutions precludes judicial policy making. The inherent ambiguity of constitutional interpretation can be seen clearly by considering the First Amendment to the Constitution of the United States, which states that “Congress shall make no law…abridging the freedom of speech.” This prescription, upon first glance, seems entirely clear. Nevertheless, few people—not least the framers of the Constitution—have interpreted it as meaning that Congress cannot pass any law that abridges any form of speech. Nearly everyone accepts that treasonous or seditious speech, for example, can be proscribed. Most would also accept at least some legal restrictions on libelous speech, and many would accept restrictions on so-called hate speech. Indeed, once one begins to consider the wide variety of actions that might qualify as speech (including “nonverbal,” or symbolic, speech), it is easy to conclude that the U.S. Constitution itself has little literal meaning beyond what is given to it by the interpretations of judges.

2. Court structure and organization
2.1. Types of courts
2.1.1. Courts in federal systems
Many countries, such as the United Kingdom, France, and Japan, have unitary judicial systems in which all courts (i.e., regular courts as distinguished from administrative bodies) fit into a single national hierarchy of tribunals along the lines just described. Other countries, organized on a federal basis, tend to have more complicated court structures, reflecting the fragmentation of governmental powers between the central authority and local authorities. In the United States, for example, there are 51 separate judicial systems, one for each state and another for the federal government. To a limited extent, the jurisdiction of the federal courts is exclusive of that exercised by the state courts, but there are large areas of overlap and duplication. Unless state laws or state constitutions conflict with national laws or the national constitution, state courts are the final arbiters of the meaning of state law. At the top level is the Supreme Court of the United States, which hears appeals not only from the lower federal courts but also from state courts insofar as they present federal questions arising under the Constitution of the United States or under federal statutes or treaties. If a case in a state court involves only a question of state law—for example, the interpretation of a state statute—the ultimate authority is the state supreme court, and no appeal is possible to the U.S. Supreme Court.

Court structure in a federal form of government need not be as complicated as that in the United States. It is possible to have only one set of courts for the country, operated by the central government and handling all cases that arise under state law as well as federal law. Germany is also a federal republic, dividing power between the federal and state systems. At the national level, there are five supreme courts and one constitutional court. The supreme courts represent separate jurisdictions (civil and criminal, general administrative, employment and trade-union disputes, social policy, and financial matters and taxation).

Another possibility is for each state or province to have its own system of courts, handling all questions of federal as well as state law, and for the central government to maintain only a single supreme court to decide questions as to the relationship of the central authority and the local authorities or as to the relationship between the local authorities themselves. This pattern is found in Canada and Australia.

Another complication resulting from a federal form of government is that questions involving conflict of laws arise with great frequency. Such questions concern the choice to be made between the law of one jurisdiction and that of another as the rule for a decision in a particular case. Even in a unitary system, such problems cannot be avoided; for example, a court in the United Kingdom may be called upon to try a case arising from a transaction that took place in France and to decide whether British or French law should govern. Such problems arise much more often, however, in federal systems, where laws differ from state to state and people move about very freely. Their activities in one state sometimes become the subject of a lawsuit in another, and the court is required to decide which law should apply.

2.1.2. Transnational courts
Although courts with jurisdictions that traverse national boundaries have been in existence for quite some time (e.g., the International Court of Justice [ICJ] was established in 1945, replacing an international court that was created after World War I), generally they have been too weak to warrant much attention. More recently, however, transnational courts such as the European Court of Justice (the high court of the EU) and the European Court of Human Rights have become quite powerful, and the ICJ has garnered an enhanced reputation. These courts generally enforce treaty obligations and related interstate agreements.

The European Court of Justice is sometimes credited with having created a variety of new individual rights for citizens of the EU, often superseding national laws (e.g., rights to gender equality). Indeed, the European Court of Justice has been successful in declaring the laws of the EU to be superior to national laws and thereby undermining the long-established principles of parliamentary sovereignty (as in the United Kingdom). Many observers believe that no single institution has been more instrumental in creating a united Europe than the European Court of Justice.

The International Criminal Court (ICC), which began sittings in 2002, represents a specialized type of transnational court devoted to prosecuting criminal activity. Created in part in response to the war crimes committed in the former Yugoslavia and Rwanda in the 1990s (separate international tribunals were established to prosecute allegations of war crimes in each conflict), the ICC was empowered to try individuals accused of war crimes, genocide, and crimes against humanity. Because of the nonparticipation of several major countries (e.g., China, Russia, and the United States), however, many observers questioned whether the ICC could effectively prosecute and deter such crimes.

2.2. Judges
A court is a complex institution that requires the participation of many people: judges, the parties, their lawyers, witnesses, clerks, bailiffs, probation officers, administrators, and many others, including, in certain types of cases, jurors. Nevertheless, the central figure in any court is the judge.

The role and power of judges vary enormously, not only from country to country but often within a single country as well. For example, a rural justice of the peace in the United States—often untrained in the law, serving part-time, sitting alone in work clothes in a makeshift courtroom, collecting small fees or receiving a pittance for a salary, trying a succession of routine traffic cases and little else—obviously bears little resemblance to a justice of the Supreme Court of the United States—a full-time, well-paid, black-robed professional, assisted by law clerks and secretaries, sitting in a marble palace with eight colleagues and deciding at the highest appellate level only questions of profound national importance. Yet both persons are judges.

2.2.1. Lay judges
In most civil-law countries, judges at all levels are professionally trained in the law, but in many other countries they are not. In England, part-time lay judges greatly outnumber full-time professional judges. Called magistrates or justices of the peace, they dispose of more than 95 percent of all criminal cases and do so with general public satisfaction and the approbation of most lawyers (see magistrates’ court). Professional judges handle only the relatively small number of very serious crimes; most of their time is devoted to civil cases. England places unusually heavy reliance on lay judges, but they are far from unknown in the courts of many other countries, particularly at the lowest trial level. This was also true in the former Soviet Union and remains so in the United States. In some countries of the Middle East (e.g., Israel and Iran), lay judges constitute religious courts and are selected for service on the basis of their knowledge of and fidelity to nonsecular rules and laws. In Finland, panels of lay judges sit with credentialed judges in district court criminal cases (and also may be used in some civil cases pertaining to domestic issues). The Japanese enacted legislation in the early 21st century to introduce lay judges into the country’s legal system. There is considerable diversity in the way lay judges are chosen and used in judicial work. In the United States, for example, lay judges are popularly elected for limited terms, whereas in England they are appointed by the lord chancellor to serve until retirement or removal. In England, lay judges serve intermittently in panels on a rotating basis for short periods, whereas in the United States they sit alone and continuously. In South Africa, lay judges (called assessors) always sit with professional judges; in England, they sometimes do; and in the United States, they never do. In some developing countries, many judges at all levels have little formal legal training. Sometimes they are religious authorities rather than lawyers, since in many countries religion and secular government are not sharply differentiated and the law derives from religious doctrine. The vast majority of countries that use lay judges at the lowest trial level, however, insist upon professionally trained judges in trial courts of general jurisdiction and in appellate courts.

Court structure and organization » Judges » Professional judges in the civil-law tradition
Professional judges in civil-law countries are markedly different in background and outlook from professional judges in common-law countries. Both have legal training and both perform substantially the same functions, but there the similarities cease. In a typical civil-law country, a person graduating from law school makes a choice between a judicial career and a career as a private lawyer. If he chooses the former and is able to pass an examination, he is appointed to the judiciary by the minister of justice (a political officer) and enters service. His first assignment is to a low-level court; thereafter he works his way up the judicial ladder as far as he can until his retirement with a government pension. His promotions and assignments depend upon the way his performance is regarded by a council of senior judges, or sometimes upon the judgment of the minister of justice, who may or may not exercise his powers disinterestedly and on the basis of merit. The Japanese system epitomizes this process. The path to legal success is very narrow, providing little room for error in terms of formal education, legal practice, and judicial experience. In Japan, as in the vast majority of civil-law systems, the civil-law judge is a civil servant.

2.2.2. Professional judges in the common-law tradition
In common-law countries, the path to judicial office is quite different. Upon completion of formal legal education, a person typically spends a significant amount of time in the private practice of law or, less commonly, in law teaching or governmental legal service before becoming a judge. Judges are appointed or elected to office; there is no competitive examination. In England the appointive system prevails for all levels of judges, including even lay magistrates. Appointments are primarily under the control of the lord chancellor, who, although a cabinet officer, is also the highest judge of the United Kingdom. Judges are kept surprisingly free from party politics. In the United States, the appointive method is used in federal courts and some state courts, but ideological and partisan considerations—particularly at the federal level—play a very significant role in appointments to the bench. In the United States, all appointments to the federal bench, and many appointments to the state judiciary, are made by the chief executive (president or governor), though these appointments are generally subject to legislative approval. In many states, however, judges are popularly elected, sometimes on nonpartisan ballots, sometimes on partisan ballots with all the trappings of traditional political contests. A third method of judicial selection, devised in an attempt to de-emphasize partisan considerations (and to give more power to the organized bar) while maintaining some measure of popular control over the selection of judges, has grown in popularity. Called the Missouri Plan, it involves the creation of a nominating commission that screens judicial candidates and submits to the appointing authority a limited number of names of persons considered qualified. The appointing authority must select from the list submitted. The person chosen as judge then assumes office for a limited time and, after the conclusion of this probationary period, stands for “election” for a much longer term. The judge does not run against any other candidate; rather, he is judged only against his own record. The ballot, called a retention ballot, often simply reads “Shall Judge X be retained?” In practice, few judges are removed from office through retention ballots. These different selection systems strike different balances between the principles of democratic accountability and judicial independence.

In common-law countries, a person does not necessarily enter the judiciary at a low level; he may be appointed or elected to the country’s highest court or to one of its intermediate courts without any prior judicial experience. Indeed, even courtroom experience is not a prerequisite for a judgeship in the United States. There is also no regular pattern of promotion, and judges are not assured of a long tenure with ultimate retirement on a pension. In some courts, life tenure is provided, sometimes subject to mandatory retirement at a fixed age. In others, tenure is limited to a stated term of years. At the conclusion of his term, if not mandatorily retired earlier, the judge must be reelected or reappointed if he is to continue.

While in office, common-law judges enjoy greater power and prestige and more independence than their civil-law counterparts. A common-law judge, who occupies a position to which most members of the legal profession aspire, is not subject to outside supervision and inspection by any council of judges or by a minister of justice; nor is he liable to be transferred by such an official from court to court or from place to place. The only administrative control over common-law judges is exercised by judicial colleagues, whose powers of management are generally slight, being limited to matters such as requiring periodic reports of pending cases and arranging for temporary (and usually consensual) transfers of judges between courts when factors such as illness or congested calendars require them. Only judges who misbehave very badly (e.g., by abusing their office) are in danger of disciplinary sanctions, and then usually only by way of criminal prosecution for the alleged misdeeds or by legislative impeachment and trial, resulting in removal from office—a very cumbersome, slow, ill-defined, inflexible, ineffective, and seldom-used procedure. Some parts of the United States have developed more expeditious methods of judicial discipline, in which senior judges are vested with the power to impose sanctions on erring colleagues ranging from reprimand to removal from office. They are also vested with the power to retire judges who have become physically or mentally unfit to discharge their duties.

The ultimate act of discipline is impeachment. In the United States, federal judges may be removed from office based upon an impeachment by the House of Representatives and a conviction by the Senate. Very few judges have been either impeached or convicted (one associate justice of the Supreme Court, Samuel Chase, was impeached but was not convicted). In other parts of the world, including Latin America, impeachment has been institutionalized. In Argentina, for example, a magistrate council investigates judicial misconduct and may remove judges from office.

Except at the very highest appellate level, common-law judges are no less subject than their civil-law counterparts to appellate reversals of their judgments. But appellate review cannot fairly be regarded as discipline. It is designed to protect the rights of litigants; to clarify, expound, and develop the law; and to help and guide lower-court judges, not to reprimand them.
Source: http://www.britannica.com