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The judiciary is the branch of government charged with resolving, or adjudicating, disputes between citizens, between other government institutions, and between the government and its people. Judicial power may extend to three separate functions: (1) administering the criminal justice system by determining when a violation of the criminal law has occurred and declaring the appropriate sanction for that violation; (2) administering the civil justice system by resolving disputes, enforcing contractual obligations, and protecting property rights; and (3) exercising judicial review of legislative enactments to ensure that new laws comport with constitutional requirements.
The disputes resolved by judicial entities—often called courts or tribunals—are referred to as cases. Courts may rest the authority to resolve a case in a single official, who may be called a magistrate, a judge, or a justice. In the alternative, some courts, called collegial courts, place decision-making authority in a group. In a collegial court, a group of judges will hear a single case and will collectively be responsible for adjudicating its outcome.
The scope of a court’s authority is its jurisdiction. Jurisdiction may be defined geographically, with a judicial entity having authority over a particular city, state, or region. In the alternative—or additionally—a court’s jurisdiction may be defined by subject matter. For example, a court may have authority only over issues of intellectual property or only over issues of criminal law; such a court would be a court of limited jurisdiction, as opposed to a court of general jurisdiction.
Finally, a court’s jurisdiction may be original or appellate in nature. A court’s original jurisdiction extends to those cases it hears before any other court. In contrast, a court’s appellate jurisdiction extends to cases in which it is reviewing the decision of another court. The notion of appellate jurisdiction presupposes a hierarchical judicial system.
For example, in the United States, each state has its own judicial system, and the federal government has a separate—more appropriately, a parallel—judicial system. The federal judiciary is hierarchical: federal district courts, which have original jurisdiction in most disputes, have jurisdiction over a set geographic territory, no larger than a state; U.S. circuit courts of appeals, which function as intermediate appellate courts, also have jurisdiction over a set geographic territory, usually a group of contiguous states; and the U.S. Supreme Court is a single judicial body that has jurisdiction over the entire nation.
The U.S. Supreme Court primarily exercises appellate jurisdiction, reviewing decisions of lower federal courts and state high courts; a citizen involved in a dispute with his neighbor cannot go directly to the U.S. Supreme Court but, rather, can only appeal to the U.S. Supreme Court after attempting to obtain a favorable verdict from at least one lower court, and usually several. The U.S. Constitution, however, carves out a few types of cases, such as cases involving foreign officials, over which the Supreme Court has original jurisdiction; accordingly, such a case could begin and end in the Supreme Court, with no other judicial body ever rendering a decision.
Although judicial systems vary significantly from nation to nation—and even sometimes from jurisdiction to jurisdiction within a single nation—there are a few aspirational characteristics that most judicial bodies share. Among these ideals are objectivity and institutional independence.
The rule of law is a cornerstone of government legitimacy, particularly in democratic states. The judiciary is the voice of the law, and in a just society the application of the law is not affected by favoritism or bias. Accordingly, an ideal judicial system is objective.
Judicial officials are expected to leave their personal preferences out of their decision making, and institutional rules are often designed to eliminate or minimize the possibility, even the appearance, that judges are motivated by anything other than the law. In an effort to expose potential bias, judges frequently must disclose their financial records, and in systems where judges are elected, rules relating to campaign contributions may be especially stringent. Many judicial systems provide rules against ex parte communication—communication about a case with one party or attorney to which the other party or attorney is not privy—and rules against the judge discussing the case with the public or media before an official decision has been rendered. Ultimately, the goal of all of these rules is to eliminate any personal interest in the outcome of the case and to limit the ability of outside parties to sway the judge’s position.
Of course, like every government institution, the judiciary is composed of human beings who cannot leave their humanity at the door. Most judges have studied the law, perhaps worked as attorneys or held other public office, and are generally well-informed individuals. It would be bizarre to expect that they do not have opinions about legal issues, judicial philosophy, and public policy. Moreover, it would be unreasonable to expect that judges can compartmentalize their own opinions to such an extent that they have no effect whatsoever on their judicial decisions.
Studies of judicial behavior, primarily of justices on the U.S. Supreme Court, have persuasively demonstrated that judicial decisions are affected to some extent by ideological concerns. Specifically, to the extent that Supreme Court justices disagree about the outcome of a particular case—an indication that the law is not entirely clear— there are predictable patterns of agreement between the justices and predictable patterns of voting that correspond, roughly, to liberal and conservative viewpoints. There is considerable debate about the conditions under which and the degree to which ideology colors judicial decision-making, but it is generally accepted that ideology is a factor. Indeed, decisions about selecting and electing judges in the United States are highly politically charged because it is generally understood that judges bring their individuality to the task of judging and are not, rather, automatons rigidly applying the law.
To protect the rule of law, judicial officials must be objective; the influence of their personal preferences, biases, and interests on their decisions should be minimal. Yet it is not enough to constrain the members of the judiciary; they must also be protected from threats of reprisal from unpopular decisions. Thus, another common ideal for judicial institutions is that they enjoy institutional independence.
Referring to a government institution as a judiciary generally distinguishes it from a legislature (a deliberative body that develops laws and policies) or an executive (the individual or individuals charged with carrying out the will of the government). The judicial power, however, is not always severed from the legislative and executive powers. For example, the biblical King Solomon was renowned for his ability to resolve disputes, and in the English feudal system of the Middle Ages, landowners adjudicated disputes among their tenants. Similarly, many Native American tribes traditionally vested the authority to resolve disputes and impose criminal sanctions in the tribal council, a body that also possessed legislative and executive powers. Such intermingling of political responsibility and judicial responsibility is generally considered suboptimal because it often means that the individuals exercising judicial authority are subject to political pressures that may taint their judicial decisions.
Even when the judicial power resides in a formally separate institution—a judiciary—the relationship between the judiciary and other institutions of government may impair the ability of the judiciary to uphold the rule of law. Judges who rely on other government actors to secure their wages, to maintain their staffs and their facilities, and even to keep their jobs are understandably vulnerable to political pressures. Freeing the judiciary from these sources of dependence, specifically by institutional arrangements that make it difficult if not impossible for other government institutions to undermine the judiciary’s ability to function, advances judicial independence. While it is easier to insulate the judiciary from public pressure, the separation of the judiciary from electoral influence poses more philosophical problems for democratic states, particularly when the judiciary exercises judicial review. The notion of a government entity that is not answerable to the public effectively exercising a veto over legislative acts runs counter to the idea of majority rule; for precisely that reason, some states opt to select judges through popular elections or allow the public to remove unpopular judges through recall elections.
Advocates of judicial independence argue, in response, that the judiciary provides a critical check on majoritarian government, protecting enduring political values and the interests of political minorities from fleeting political passions or minority tyranny. Proponents of judicial independence suggest appointing judges based on merit, for life tenure or for a fixed, nonrenewable term.
Even when institutional arrangements maximize judicial independence, the interplay between the judiciary and more political forces is apparent. For example, members of the U.S. federal judiciary are appointed by the president but must be confirmed by the Senate, and they enjoy life tenure. Still, historically, the federal courts have shown deference to political sentiment. The U.S. Supreme Court seemed to abandon principle to political pressure when it upheld the constitutionality of the Japanese internment during World War II (1939–1945) and when it shifted its position on economic liberty to allow adoption of the New Deal policies of Franklin D. Roosevelt (1882–1945). Even when the Supreme Court made the politically unpopular move of ordering the desegregation of public schools, the Court’s concern for public opinion was apparent; Chief Justice Earl Warren (1891–1974) carefully crafted his opinion in Brown v. Board of Education (1954) to ensure a unanimous Court, and the Court waited a year after declaring segregated schools unconstitutional before issuing the opinion ordering desegregation. In other words, even when the Supreme Court uses its independence, it often attempts to make concessions for public opinion.
Variation in Judicial Systems
While most judicial systems share a common purpose and certain common ideals, there is tremendous variation in the structure and function of judicial systems when viewed in comparative perspective. The rest of this article will focus on some of the key dimensions along which judicial systems vary.
Criminal Justice: Inquisitorial and Adversarial Systems
The judiciary often bears primary responsibility for the administration of criminal justice: adjudicating guilt and assessing sanctions for the violation of criminal laws. Criminal justice systems and, more specifically, the role of courts in those systems, may be adversarial or inquisitorial; these terms define endpoints on a continuum, with most judicial systems blending elements of both adversarial and inquisitorial procedures.
In a purely adversarial system, prosecutorial and adjudicating powers are completely separated. A prosecuting authority makes the decision to charge a citizen with a crime, gathers evidence of guilt, and argues on behalf of the state. The role of the judiciary is limited to receiving evidence from both the prosecutor and the accused, weighing that evidence, and adjudicating guilt. Thus the party adjudicating guilt and innocence hears both sides of the story, presented as cohesive wholes, in relatively quick succession.
In contrast, in a purely inquisitorial system, both prosecutorial and adjudicating authority are vested in a single institution. In an inquisitorial system, the same individual or institution will be responsible for charging a citizen with a crime and for determining whether the citizen is guilty. Judicial officials in inquisitorial systems gather evidence and directly question witnesses. The danger of an inquisitorial system is that during the course of investigation, the judicial authority will become committed to a particular theory or belief and that subsequent, countervailing evidence will not be accorded sufficient weight. In other words, inquisitorial systems create a real risk that prosecutorial zeal and momentum will cloud the ultimate determination of guilt.
Civil Justice: Common Law and Civil Law Systems
The role of the judiciary in the administration of civil justice— the resolution of disputes between private parties—varies considerably between common law countries and civil law countries. Common law countries are, generally, England and its former colonies, while the civil law tradition has its origins in France.
The common law tradition is premised on the notion that law, as a body of community norms, derives as much from custom and usage as from government edicts. In common law countries, a significant portion of the law is developed by the judiciary through the process of resolving disputes. When confronted with a new dispute, courts will look at past similar disputes—what we call precedent—for guidance. In this incremental fashion, building resolution upon resolution, a body of judgemade common law is created.
In the civil law tradition, the role of the judiciary is considerably more limited. Codified law is far more detailed and governs every aspect of social intercourse. The role of the judiciary is limited to interpreting those laws that have been enacted by the legislative branch of government.
Judicial Review: American and European Models
One dimension along which we can differentiate types of judicial systems is the manner in which they exercise judicial review. Judicial review is the process of evaluating new legislative enactments and executive policies to ensure that they are consistent with constitutional requirements. There are two principal models of judicial review: the European model and the American model.
The European model is characterized by a division between ordinary courts, which are typically hierarchical systems for addressing basic civil and criminal matters, and a constitutional court, which is a single court of limited jurisdiction devoted solely to the business of ruling on the constitutionality of legislative acts. France, Portugal, Germany, and Russia all have a constitutional court system. In these countries, when the legislature passes a new law, it may be challenged directly in the constitutional court. In some countries, such as France, the challenge must come from a state actor. In others, such as Germany, even ordinary citizens may allege a constitutional violation.
The American system is considerably less efficient. The American judicial system is unified: there is a single, hierarchical federal court system—with trial courts, intermediate appellate courts, and a Supreme Court—that handles civil matters, criminal matters, and constitutional questions. Challenges to the constitutionality of legislative enactments must work their way through the complete hierarchy, a long and burdensome process. What’s more, the challenges must arise in the context of an actual case or controversy rather than as a simple allegation of unconstitutionality.
To illustrate, imagine a law forbidding the distribution of pamphlets critical of the government. In a country with a European system of constitutional courts, an individual who believes the law violates the country’s constitution would address this argument directly to the constitutional court; the constitutional court would rule up or down on the issue of constitutionality, and the dispute would be over. In an American-model country, however, an individual who believes the law is unconstitutional would have to create a case—likely by breaking the law, enduring arrest, and then challenging the constitutionality of the law during the course of his or her criminal trial. The challenge may need to be repeated in the trial court, one or more appellate courts, and finally the U.S. Supreme Court.
- Abraham, Henry J. 1998. The Judicial Process: An Introductory Analysis of the Courts of the United States, England, and France. 7th ed. New York: Oxford University Press.
- Baum, Lawrence. 2001. American Courts: Process and Policy. 5th ed. New York: Houghton Mifflin.
- Jacob, Herbert, Erhard Blankenburg, Herbert M. Kritzer, and Doris Marie Provine. 1996. Courts, Law, and Politics in Comparative Perspective. New Haven, CT: Yale University Press.
- Segal, Jeffrey A., and Harold J. Spaeth. 2002. The Supreme Court and the Attitudinal Model Revisited. Cambridge, U.K.: Cambridge University Press.
- Stone-Sweet, Alec. 2000. Governing with Judges: Constitutional Politics in Europe. New York: Oxford University Press.
- Tate, C. Neal, and Torbjörn Vallinder, eds. 1995. The Global Expansion of Judicial Power. New York: New York University Press.