Unit 7 Flashcards
Judiciary
What is the judiciary? How is it traditionally conceived?
Judiciary is set of bodies authorised to adjudicate disputes in an impartial way through the interpretation and application of law. It is the third branch of government (along with legislature and executive). It ensures fair and consistent application of law.
Traditionally there are main conceptions of judiciary, but they have converged in time. These are common law and civil law.
Civil law, or sometimes called bureaucratic, is the result of French Revolution. It is marked by strict separation of powers. Judges should only apply the law and not interpret it. The law-making and then the interpretation lies in the Parliament. Judges are public officials, bureaucrats and they should passively interpret the law.
Common law, or sometimes called professional, recognises a more active role of the judiciary. Judicial precedents are also sources of the law, therefore judges contribute to the law-making. Judges are chosen from successful legal professionals (barristers or solicitors).
Why should judges be independent and accountable? To what extend legislatures rectify judicial precedents?
Judicial independence and their accountability needs to be balanced. The more judges are independent, the less they are accountable and vice versa.
In all constitutional systems judges are expected to be independent. Judicial independence is crucial for upholding the rule of law and ensuring that judges can make impartial decisions based solely on law. Independence has to be external, meaning from other political institutions and socio-economic actors and internal, from within the judiciary.
Accountability of judges means that judges can face consequences if they disregard given mandate. Accountability becomes necessary when judges exercise judicial discretion, because judicial discretions blurs the difference between judicial and legislative power. However judicial discretion is often necessary because of the formulation of norms; judicial politics or legislative inertia.
There are two main ways legislature can rectify unwanted judicial precedents. First they can modify the legislation by repealing the former and adopting a new one with a clear interpretation. In this case the new legislation is used only for cases that start after the enactment. The other possible way is authentic interpretation in which Parliament gives a binding interpretation on an act. In this case the binding interpretation has to be used even for ongoing cases sing no legislation has been repealed.
What are the main variables influencing the organisation of a judicial system?
Jurisdiction can be either uniform of specialised. Uniform means that all disputes are adjudicated with a single and unified body of judges. This is typical for common law countries. There is only one highest, Supreme Court. Specialised jurisdiction is typical for civil law countries. There depending on who are the subjects of the dispute the case is decided by a different court. Generally there are administrative courts, which decide disputes between public authorities and individuals. But for example in Germany there are 5 different types of courts, each with its own Supreme Court.
Both in common law and civil law countries jurisdiction is organised hierarchically. The highest court is the Supreme Court. The reasons for hierarchy are two. Higher courts serve as an element of correction. Dispute can through appeals potentially get up to the Supreme Court. And also higher courts can establish uniform interpretation on the whole judicial system. In common law stare decisis applies (rule of binding precedent), which means that lower courts are obliged to follow the higher court precedents. In civil law countries the precedents from higher courts are not legally binding, however they have enough authority that lower courts mostly follow them.
In federal systems judiciary can be organised in two ways. There can either be a parallel jurisdiction, which is typical for federations shaped by dual federalism. Typical example can be USA where there is federal jurisdiction and then each state has its own system of courts. The other option is integration model, of which the typical example is Germany. There the lower courts are on the state level and the Supreme Court is then on federal level. All cases therefore start at the state level jurisdiction and only through appeals can get to the federal level.
What are the guarantees implied in the notion of functional independence? In what sense should judges be ‘accountable to the law’?
Functional independence is the independence on the bench. It safeguards the independence of the judge adjudication a case.
Ad hoc justice is prohibited. That safeguards that all cases are decided based on pre-existing jurisdiction and no special rules are created for deciding a specific case.
The position is judges is incompatible with some other positions. There are general incompatibility rules such as that judges cannot serve in other branches of government and cannot be part of political bodies. But there are also incompatibility rules connected to a specific case at issue meaning that when a judge is in a relationship with the case or the parties of the case, they should abstain from adjudicating it.
Judges have to operate as third parties. All parties of the case have to have the same procedural rights and judges has to hear all the parties before giving a decision.
Judges also have to be irremovable. There are special procedures by special bodies that can result in a removal of a judge from their position.
Accountability to law means that the work of judges is under the scrutiny of legal professionals and executive. Judgements need to be accessible in order to be revised and each judge has to obligation to justify their decisions. Accountability to law relies on two elements. Orientation to the law, meaning that judges should approach cases with a mental disposition to deal with legal materials as judges. And judgement have to be substantially and methodologically correct, that means that their structure and outcome must fall within the range of the defensible interpretations and methods.
What are the guarantees implied in the notion of institutional independence?
Institutional independence entails a set of guarantees protecting the judiciary from both external and internal interferences in the recruitment, career, renumeration and discipline of judges.
Recruitment both in civil law and common law countries is based on the abilities. However in common law countries these abilities are connected with previous professional experience as barristers or solicitors; in civil law countries judges are recruited based on their results of public examinations. In UK judges are appointed by Lord Chancellor on the basis of a list drafted by a Judicial Appointment Commission. In USA there are different procedures on federal and state level. Federal judges are appointed by President with the consent of Senate (however this selection is informally influenced by Department of Justice, American Bar Association and Senators). State judges are usually elected either in partisan or non-partisan elections. In some cases a ‘Missouri plan’ is applied, governor of state appoints a judge who serves for a probation period after which the people vote whether he can continue his term. In France judges are selected in an examination to École Nationale de la Magistrature in which the pupils are trained by members of the judiciary. After their training judges are appointed by Judicial Council. In Germany students with law degree after passing first state exam can serve in various legal positions, after second more practical state exam they can become lawyers or judges. On state level judges are appointed by the Minister of Justice of the Land assisted with Judicial Council. On federal level procedure is more politicised since judges are appointed by Minister of Justice assisted with MoJ from all the Länder and equal number of members of Bundestag.
In common law countries judicial career does not exist. There are only vacant positions needed to be filled. In the UK there has been a rudimentary career system in which the vacancies in higher levels are filled rather by former serving judges than legal professionals. In civil law countries young judges start from lower levels of judiciary and get promoted based on their seniority and merit. Decisions on career promotions are taken by higher-ranking judges, who scrutinise and asses the work of their younger colleagues. This leads to conformism of the younger judges to the older precedents and methods.
Renumeration of judges should be similar to that of high public officials. Also it is protected from reductions and bonuses.
Activity and conduct of judges is assessed and they can be held accountable in case of misbehaviour. There are specific procedures to hold judges accountable. In the UK there is an impeachment procedure to hold judges accountable, however it is seldom used. There is a more informal procedure in which judges are invited to a private meeting with Lord Chief Justice which is followed by the resignation of the judge. In the USA federal judges can be impeached through the same procedure as the President, however again this method is seldom used, because there are Judicial Committees that adjudicate misbehaviour. On state level in USA there are fourteen possible ways, judge cane be impeached, removed by governor, removed through recall based on popular petition or held accountable through elections.
Illustrate the role and the functions of the national council of the judiciary.
Judicial councils are administrative bodies with the power over careers of judges and the administration of courts. It is staffed mainly by judges (but not only). Councils do not perform judicial activities. They were established to ensure institutional independence of courts, because originally the career and administration of courts was in the hands of Minister of Justice, therefore it could be quite politicised. This model was first used after WWII in France where it was deemed successful and was therefore transported to other countries.
There are different models of Judicial Councils. The predominant and original is judge-controlled model; this prioritises the independence over accountability of judges, because it is composed almost exclusively of judges elected within the judiciary. Problems of this models are low-accountability and possible lack of management competences. To counteract the low-accountability of judge-controlled JC politician-controlled JC have been established; however this model undermines the primary point of establishing of JC which was depoliticising judiciary and can undermine the independence of judiciary. Inter-branch model is employed in Slovakia; in this model in JC are all 3 branches equally represented and therefore the the decisions are results of negotiations between these three powers. The last is fourth-branch model employed in Ireland since 2022; JC operates independently from all 3 branches of government and is formed even by lay-members who bring another point of view.
Why are the independence and accountability of public prosecutors peculiar? How can they be achieved?
Public prosecutors are institutions promoting criminal procedures. They are at the intersection between judicial and executive branches of government.
Activity similar to judges is when public prosecutor deciding whether to press charges, must carefully weigh evidence and when seeking punishment for convicted individuals, prosecutors must determine an appropriate level of punishment. On the other hand activity similar to executive is in strategic choices in allocation of investigative resources and in negotiations with defence attorneys.
In common law countries public prosecutor is always part of the executive. This makes the figure highly politicised and can be captured by influential actors and there can be a problem in the fairness of investigation. On the other hand public prosecutor is open to popular scrutiny and can be held accountable.
In civil law public prosecutors operate within the judiciary and there is different influence by the Minister of Justice. The advantage is more fair execution of public prosecution. However prosecutors cannot be held accountable and can use this highly medialised position for their own benefit.
