Independent Judiciary

The administration of justice was at one

time a private affair. The States as such
had no machinary for this purpose, instead
disputes were resolved by compromise or
by individual or family retaliation. As a
result blood feuds developed, the milder
ones being settled with money, while the
most serious ones often resulted in one of
the antagonists being driven from the
community. At one time officials of the
church and feudal lords administered justice
in their respective areas and according
to their respective precepts. Later the
State became the arbiter of custom, and
subsequently law-maker and law-adjudicator,
and prosecutor and punisher of offenders.
The judge in the earliest times was
one who was empowered to resolve disputes
by applying the law in the name
of the ruler. Although it is possible to
trace back to the earliest civilizations the
existence of the office of the judge, it remained
for the Greeks to make the distinction
between the responsibilities of judicial
and other institutions of government. The
Romans went a step beyond that when
they elaborated a judicial system, along
with a body of professional jurist.
Under the Roman Republic, judicial power
was first held by the consuls; later, judicial
administration came into the hands of an
elected magistrate, the practor. Finally it
was the Emperor who appointed these
magistrates who were required to be learned
in the law.
With the development of ecclesiastical
tribunals and J feudal courts, the administration
of justice became more complex :
it was complicated further by the decline
of the feudal order and the emergence of
increasingly powerful monarchs, whose royal
courts led to further competition and
controversy. Gradually, royal judicial authority
was able to supplement other forms of
judicial administration. As affairs of the
State grew in scope and as the administration
of property and other personal rights
became more complicated, certain officials,
expert in legal matters, tended to be set
apart from other parts of administration,
ultimately forming a separate branch, which
we now refer to us the judiciary.

These judicial official, especially these

in England, gradually gained independence
from the monarch. On the European continent,
courts continued until relatively recently
to serve as auxciliaries of the executive
branch of government. Administratively,
they still remain branches of the ministries
of justice.
If justice is to be readily available to
citizens, court should exist in every locality
At the same time, meaningful, it must be universal
There cannot be a different set of
legal rules for every locality. Most modern
sates meet these requirments by having
judicial hierarchies. At the base are widely
distributed local courts. At the top one
supreme court ensures unity and centralization.
Between the base and the top of
the judicial hierarchy are a number of
intermediate courts, some having original
jurisdiction in major offences, while others
are concerned with appeals. Not all
systems are soltidily arranged.
There are important differences in the
general pattern from nation to nation, In
Great Britain. for example, there are two
hierarchies of courts, one dealing with
civil cases, the other with criminal cases,
Above the level of the courts of appeal.
Great Britain has one single supreme court
the House of Lords, for both civil and
criminal cases. In France and Germany
there are also two hierarchies, but in these
countries on; hierarchy is concerned with
cases arising under ordinary laws, civil
and criminal, while the other-the administrative
courts takes care of cases that
crise from challenges to the administrative
authority of the state or its agents.
In the United States and most other
countries organized on the federal principle,
there are also two court hierarchies. But
here it is more appropriate to speak of
two systems of courts....national and state
or provincial. The national and state systems
are seperate. One is concerned with
national laws and the national constitution
and the other with state laws and the
particular state constitution. In cases of
conflict between state and national courts,
the supreme court of the nation is the final

arbiter. Among federally organized states,

Germany and India arc two notable exceptions,
in that each has one integrated court
system. The Soviet Union, a federation in
theory only, also does not have two systems
of courts. In the Soviet Union the nationally
supervised courts in the Union Republics
handle most matters, while the one actual
national court, the Supreme court of the
USSR, hears mostly cases on appeal.
Local courts are usually of two types.
Those dealing with petty offences and presided
over by justices of the peace or their
equivalent. Most traffic courts and the
'comradely courts' of the USSR would fall
in this category. In the second group, some,
times referred to as trial court, are the
states superior courts in the United States,
country courts and quarter sessions in the
United Kingdom, the people's courts in the
Soviet Union, the court of major instance
in France, and the district court in Germany.
Most cases of major importance begin
in the trial courts. In Britain and France
the more criminal cases are tried in what
arc called assize courts, which rank below
the appeals courts and yet are a step above
the ordinary courts. In Germany such
crimes are also tried to an assize court,
which is merely a separate chamber of the
local or district court.
Courts of appeal are usually collegial
.that is, they have mare then one judge
and reach their verdicts by majority vote.
They review the law and the procedure in
the lower court, but they do not collect
additional evidence. They may reverse or
affirm the lower court's Judgement, or else
they may return the case for a new trial.
Above the courts of appeal stand the
supreme courts, the highest court of appeal,
for the most part solely occupied with
appeals work, The United States Supreme
Court has limited original jurisdiction,
chiefly in cases involving conflicts between
a state and the national government. In
the Soviet Union, the Supreme Court, in
addition to its appellate work, is charged
with the supervision of the judicial activities
of all the judicial organs of the USSR
and of the Union Republics'.

In all countries there are also some

courts that function outside the usual judicial
hierarchies. The administrative courts
in France and Germany have already been
mentioned. The constitutional courts of
these two countries are also outside of the
hierarchy. The court of claims in the
United States and the special German courts
which deal with labour relations, tax disputes,
and social security cases are other
examples. Mention should also be made
of military courts, which have special jurisdiction
over military personnel.
Numerous persons other than judges
perform functions necessary to the judicial
process. Among them arc the members of
the legal profession, without whom modern
judicial systems could not operate. Their
work is not arranged the same way in each
country. In Britain, for example, lawyers
are divided into solicitors and barristers;
the former prepare cases and wash directly
with clients, while the latter present and
argue cases in court. A similar division of
labour exists in France, but not in the
United States. Those who prosecute in the
name of the state are paid officials of the
government and therefore have a special
responsibility to the courts, but defence
attorneys also are obliged to accept judicial
verdicts in good faith and not to obstruct
justice.
Other non-judicial officials of the courts
include those persons in ministries of justice
in Roman law countries who are involved
in the training of justices and in the
supervision of the court systems. In the
Soviet Union this category would also include
the procurator-general who, among
other toings, may recommend to the Supreme
Court of the USSR that it overrules
verdicts of lower courts. In a sense he is
the supreme overlord of the whole Soviet
judicial structure, watching over the interpretation
and application of law at all
levels. He works through procurators at
all levels of the Soviet judicial hierarchy;
they are primarily his appointers and are
not responsible to local organs of government.
The procurator....general is a trusted,
high-ranking member of the Communist
Party. One occupant of this office once
described the procurator as the "Watchman
of socialist legality, the leader of the policy

of the Communist Party and of Soviet

authority, the champion of socialism.
Those who carry out the decisions of
the courts may he regarded as non-judicial
court offcials. This category includes such
law enforcement officers as marshals and
sheriffs as well as all those persons in positions
of executive authority who during the
course of their normal duties carry out
court rulings State governments in the
United States are court official in the sense
that they are the highest law enforcement
official in their respective state. The president
of the United States, as, the highest law
enforcement official in the nation, is
similarly officer of the court. Receives
in bankruptcy case arc court officials in sofar
as they have been appointed and carry out
their special tests under court supervision.
Judges in the Anglo-American countries
have inherited a number of non-judicial
tasks from the administrative functions of
the British justices of the peace and still
perform these to-day. This is particularly
true in a number of American states, especially
in rural areas and in the Souto, where
the country judges administer poor relief,
mentel institutions, and children's homes.
At the national level judges may and themselves running railroads that have gone into
bankruptcy. In Great Britain, by contrast,
most of these functions have now beea brought
into a form of civil service.
It should be mentioned also that, in
the United States particularly, the court
may be source of political patronage. The
right of judges to appoint bailiffs, registers
in probate, clerks, and so on maybe quite
important in determining the personnel of
state judicial systems. At the national level
too judicial patronage implications in the
anointments of judges. More important
with a change in the national administration
change, take place in the United Sit es
attorneys and United States marshals assigned
to federal district courts.
When w; think of the judicial system
in narrow legalistic terms,
we tend
to neglect its essentially political functions.
For example, when the legal system of a
democratically governed nation and adjudicates

in a manner satisfactory to the bulk

of the nation's citizens. It performs the,
vital political function of guaranting the
stability and continuing of the political
order A similar function is performed by
courts is dictatorships, but since they are
not independent, their authority is no greator
than
the power of the dictatorship
itself to compel
obedience.
The legal
system also
performs an essentially
political function
when
the courts
engage in constitutional umpiring especially
in a federal system. Many judicial decisions
have the effect of law-making This is an
essentially political function.
Written constitutions th it seek in some
specific way to distribute powers geographically
to allocate powers functionally,
to impose limitations on the exercise of
governmental powers, or to guarantee individual
rights inevitably induce controversy
and conflict, the resolution of which is necessary
if the system is to endure. The best
example of this type of constitution is that
of the United States It is in the United
States that we find the earliest development
of the power of judicial review This is
the authority of the courts to resolve controversies
arising from constitutional arrangements.
While any United States court may
assume this function, the ultimate arbiter is
the Untied States Supreme Court American
states courts also exercise judicial review.
The Supreme Court of f each state is the final
arbiter in controversies arising from the
state's constitution, provided that a given
case does not call into question a provision
of the national constitution.
In the United States the most important
form of judicial review consists in the
court's declaring an act of a legislature null
and void because it controversies some provision
of the State or national constitution.
But courts do not seek to pass judgment
on the constitutionality of legislation on
their own initiative or at the request of
some official. An actual case in which the
issue of constitutionality has been raised
must be brought to the courts in the regular
judicial manner.
In Great Britain, when there are no
formal limits on the powers of parliament,
there is no judicial review. Laws may be

interpreted but they may not be declared

null and void- And if a judicial interpretation
is not to Parliament's liking, then it can
remedy the situation at any time by passing
a new law.
France too, for most of its history,
adhered lo the concept of parliamentary
supremacy. The constitution of the Fifth
Republic has introduced judicial review in a
limited sense. The constitutional Council,
which is outside the judicial hunch, may
pass on the validity of organic laws and on
the standing orders of the two houses of
the legislature, which are obliged to submit
these to the council. The council may
also strike down any ordinary law refered
to it by the president, the prime minister,
and presiding officers of the two houses of
parliament. But private persons cannot
challenge the constitutionality of laws. There
is general agreement that the constitutional
council was created mainly to protect the
executive from the legislature.
Germany too has established a special
court
the Federal constitutional court,
which is given explicit powers of judicial
review. But unlike the French constitutional
council, the German court is not restricted
either in its jurisdiction or in its competence
to hear cases that ordinary citizens curing
before it. It does have the power to pass
on the constitutionality of any national or
state statue. It is authorised to pass on
disputes between national and state governments,
as well as on conflicts between organs
of government at the national level. It has
power to decide cases that allege in infringement
or personal rights guaranteed by the
constitution.
In the Soviet Union the presidum of
the Supreme Soviet is in theory charged with
the "interpretation of the laws. But in
practice there is no judicial review in the
Soviet Union. Since the Soviet constitution
is not conceived of as an instrument for
limiting or restraining political power there
is no place in the judicial structure for any
institution performing that function.
INDEPENDENT JUDICIARY (Contd.)
In democratic countries the judicial system
is closely identified with the rule of
law and the preservation of individual freedom,

The purpose of law is to achieve the

rendering of justice individual rights are
protected under the law, fo which all are
subject, and no one is punished except
under for violating the law. Moreover,,
there is a basic belief that the maintenance
of individual freedom is worth the payard
of providing punishment or compensation
after an abuse has been committed Hence,
preventive action is held to a minimum.
If individual rights are to be protected
and government retained from infringing
upon them, an independent judiciary is
indispensable. It is to the credit of demoracy that judges in democratic states have
en able, with rare exceptions, to maintain
the integrity of a system of justice,
Our overriding reason is that a judge in a
democratic country would lose the esteem
of his professional brethren if he abandoned
his impartiality. Of equal importance,
perhaps, is the fact that political leaders
who tolerate opposition also respect the
independence of the judiciary.
Dictatorial regimes, however, must be
able to control the courts just as they control
the legislature- The primary function
pi the judiciary, therefore, is not to preserve
freedom under law. It is rather to secure the
Interests of society as these are conceived by
the regime. Instead of being concerned with
protecting the rights of individuals, the
courts act as instruments for promoting
what is politically and ideologically. The basic
philosophy of the rulers. To this end, there
is considerable by the courts with
the motives and general attitudes of the
citizens
Since the primary emphasis is on the
rights of the state. It is not surprising that
in regard to individuals, dictatorships place
considerable emphasis our duties. A Soviet
law, for example, states that the general
purpose of Soviet courts is "to educate the
citizens of the USSR in a spirit of devotion
to the fatherland and to the cause of socialism,
in the spirit of an exact and unfaltering
performance of Soviet laws, careful attitude
towards socialist property, labour discipline,
honest fulfilment of State and public dutest,
respect towards the rules of the Socialist
commonwealth."
Those
who ignore or

work against these duties are considered to

be enimies of the State, and if their transgressions
are serious enough to be labelied
"political offences', trial before special
courts awaits them.
As an arm of the administrative apparatus
the judicial system in a dictatorship
seeks to pressure the regime and to facilitate
the implementation of its programmes.
Convesely, it seeks to strike down all those
who might stand in the way- To this end
the political parts, particularly in a communist
system, co-ordinates clearly the actions
of the courts. The legal profession too
ceases to be an independently organized
group and comes under government control.
Special cat e exercised in the selection of
judges.
In a dictatorship, as in a democratic
system disputes between individuals must
be settled and the laws that pertain these
disputes must be interpreted and applied.
In this respect every dictatorship provides
its own system of order among private
claimants, performing functions essentially
similar to those exercised by the courts in
democratic countries when they adjudicate
private countroversice.
E*ept for the justices of the pease
still widelly used in England and in some
plaes in America, judges are trained lawyers
In the United States, prospective lawyers
generally attened law school upon
completion of this undergraduate studies
But law school training is not a specialized
advanced academic education. It is technical
training for the specific occupation of
lawyers and enables the person who has
completed course to be admitted 10 the
practice of law, with or without examination
depending upon the State Judges are
in tern selected from anion; these who are
attorneys-at-law.
In the United kingdom, as seem in the
preceding lesson there are two types of
atorneys. Solicitors are general practitioners
or office lawyers, while barristers practice
before the courts English judges are
chosen from the most successful barristersIn Europe the position is slightly different.
Graduates of law faculties of Universities

are expected to choose between the

private practice of law and service in the
courts. Those who wish to be judges, upon
completion of their legal education enter
service under the jurisdiction of the ministry of justice and begin an apprenticeship
in the counts which eventually leads to
their obtaining a position of terms 4* a
member of their country's judici.il service.
Throughout, most of the world judge;
arc appointed to their positions and enjoy
terra; Although it is frequently alleged
that the election of judges is one significant
aspect of democracy, the only democracies
that actually do elect judges are
Switzerland and most American States The
Soviet Union too has elected judges.
In the United States judges of the
district courts, appeal courts the Supreme
Court, and special courts are appointed
for life by the President, subject to approvel
by the Senate. In the United Kingdom,
judges arc appointed in the name of
the monarch upon the recommendation of
the Lord Chancellor, the highest British
judicial and legal officer Judges in Europe
are under the jurisdiction of their respective
ministers of justice, and are assigned to
positions and promoted according to merit.
Judges who are appointed or who
serve for long terms show greater independence
and a more non-partisan attitude
that thou who are elected for short terms.
Except in the Soviet Union, where judges
are clearly recognized as servants of the
goals of the proletarian state, judges in
continental Europe are strongest in their
pretensions to complete objectivity and in
their efforts to avoid what they call subjective
opinion. Although this conscious
effort to be impartial may result in better
decision-making then might otherwise be
the case, it is not without its own problems.
In the United kingdom and the United
States there is now a fairly explicit recognition
of the subjective elements in judicial
behavior. Nevertheless, in both countries
the goal remains judicial independence
and impartiality.
There is now considerable evidence
that judges are not simply mechanisms for

registering what the law is and that the

experiences and ideas of persons holding
judicial office will be reflected in their
opinions. The most dramatic example in
American experience of the significance of
the nature of court personal was President
Francklin D. Roosevelt's difficulties
with the Supreme Court, which finally resulted
in his ill-fated proposal to enlarge the
court.
Throughout the world, judges have a
high socio-economic status. The mere holding
of judicial office puts one almost
everywhere in the top socio-economic ranks
f society. A possible exception is Trance,
when there are poapoationality more judges
than elsewhere and where judges have
been less well paid than they all in other
countries- Also, judges in France may
have a somewhat lower states then their
counterparts elsewhere because they do not
always serve as judges but may de transferred through the various offices of the
magistrature. Thus, a person may serve at
one time as a judge, later as a prosecutor,
then in toe justice ministry,
and then
once againe as a judge. Under the Fifth
Republic efforts have been made to increase
the pay and raise the status of French
judges. In America judges are relatively
well paidPerhaps more significant than the occupational
status of the judgeship arc the
social origins of the judges. Here again a
generalisation holds true for all the countries
Judges usually come from high socio-economic
origins.