unit 7 Flashcards
What is the judiciary? How is it traditionally conceived?
The judiciary is an institution responsible for resolving disputes impartially by interpreting and applying laws, with its traditional conception varying between legal systems: in the Civil Law tradition, it focuses on a strict separation between lawmaking and enforcement, with judges acting as passive interpreters, while in the Common Law tradition, judges play an active role in lawmaking through judicial precedents, shaping and interpreting the law based on past decisions.
Why should judges be independent and accountable? To what extent can
legislatures rectify judicial precedents?
Judges should be independent to ensure impartiality and fairness in their decisions, while being accountable to prevent overreach and ensure their rulings align with legal and democratic principles; legislatures can rectify judicial precedents by amending or clarifying laws, though they cannot retroactively alter past decisions except in specific cases.
What are the main variables influencing the organization of a judicial system?
The main variables influencing the organization of a judicial system include the type of jurisdiction (uniform vs. specialized), how administrative law cases are handled, the judicial hierarchy for appeals and legal certainty, and the territorial structure, which is shaped by federal or integrated systems.
What are the guarantees implied in the notion of functional independence? In what
sense should judges be ‘accountable to the law’?
Functional independence ensures judges can adjudicate impartially, protected by guarantees such as prohibition of ad hoc justice, incompatibility rules, irremovability, and adherence to the adversary principle, while judges must also be accountable to the law by interpreting and applying it impartially, balancing discretion with legal obligations, and being subject to scrutiny from the public, legislatures, and the legal profession.
What are the guarantees implied in the notion of institutional independence?
Institutional independence guarantees the judiciary’s protection from external and internal interference, ensuring impartiality through safeguards in areas such as recruitment, career progression, remuneration, discipline, and governance, with judicial councils playing a central role in maintaining this independence through various models.
Illustrate the role and the functions of the national councils of the judiciary.
National councils of the judiciary are administrative bodies that ensure judicial independence and governance by overseeing judges’ careers, appointments, and disciplinary actions, while safeguarding against political interference through various models that balance autonomy and accountability.
Why are the independence and accountability of public prosecutors peculiar? How
can they be achieved?
The independence and accountability of public prosecutors are peculiar because they balance judicial and executive functions, requiring a careful approach that ensures autonomy while implementing transparent oversight and accountability mechanisms to maintain trust and prevent undue influence.
