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Judiciary

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For the American band, seeJudiciary (band).

TheSupreme Court Buildinghouses theSupreme Court of the United States,thehighest courtin thefederal judiciary of the United States.

Thejudiciary(also known as thejudicial system,judicature,judicial branch,judiciative branch,andcourt or judiciary system) is the system ofcourtsthat adjudicates legal disputes/disagreements and interprets, defends, and applies thelawin legal cases.

Meaning

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The judiciary is the system ofcourtsthat interprets, defends, and applies thelawin the name of thestate.The judiciary can also be thought of as the mechanism for the resolution of disputes. Under the doctrine of theseparation of powers,the judiciary generally does not makestatutory law(which is the responsibility of thelegislature) or enforce law (which is the responsibility of theexecutive), but rather interprets, defends, and applies the law to the facts of each case. However, in some countries the judiciary does makecommon law.

In manyjurisdictionsthe judicial branch has the power to change laws through the process ofjudicial review.Courts with judicial review power may annul the laws and rules of the state when it finds them incompatible with a higher norm, such asprimary legislation,the provisions of theconstitution,treatiesorinternational law.Judges constitute a critical force for interpretation and implementation of a constitution, thus incommon lawcountries creating the body of constitutional law.

History

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See also:Legal history

This is a more general overview of the development of the judiciary and judicial systems over the course of history.

Roman judiciary

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See also:Roman lawandByzantine law

Archaic Roman Law (650–264 BC)

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The most important part wasIus Civile(Latin for "civil law" ). This consisted ofMos Maiorum(Latin for "way of the ancestors" ) andLeges(Latin for "laws" ).Mos Maiorumwas a set of rules of conduct based on social norms created over the years by predecessors. In 451–449 BC, theMos Maiorumwas written down in theTwelve Tables.[1][2][3]L' were rules set by the leaders, first the kings, later the popular assembly during the Republic. In these early years, the legal process consisted of two phases. The first phase,In Iure,was the judicial process. One would go to the head of the judicial system (at first the priests as law was part of religion) who would look at the applicable rules to the case. Parties in the case could be assisted by jurists.[4]Then the second phase would start, theApud Iudicem.The case would be put before the judges, which were normal Roman citizens in an uneven number. No experience was required as the applicable rules were already selected. They would merely have to judge the case.[5]

Pre-classical Roman Law (264–27 BC)

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The most important change in this period was the shift from priest topraetoras the head of the judicial system. The praetor would also make anedictin which he would declare new laws or principles for the year he was elected. This edict is also known as praetorian law.[6][7]

Principate (27 BC – 284 AD)

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ThePrincipateis the first part of the Roman Empire, which started with the reign ofAugustus.This time period is also known as the "classical era of Roman Law" In this era, the praetor's edict was now known asedictum perpetuum,which were all the edicts collected in one edict byHadrian.Also, a new judicial process came up:cognitio extraordinaria(Latin for "extraordinary process" ).[8][9]This came into being due to the largess of the empire. This process only had one phase, where the case was presented to a professional judge who was a representative of the emperor. Appeal was possible to the immediate superior.

During this time period, legal experts started to come up. They studied the law and were advisors to the emperor. They also were allowed to give legal advice on behalf of the emperor.[10]

Corpus Iuris Civilis,1607

Dominate (284–565 AD)

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This era is also known as the "post-classical era of Roman law". The most important legal event during this era was the Codification by Justinianus: theCorpus Iuris Civilis.[11]This contained all Roman Law. It was both a collection of the work of the legal experts and commentary on it, and a collection of new laws. TheCorpus Iuris Civilisconsisted of four parts:

  1. Institutiones:This was an introduction and a summary of Roman law.
  2. Digesta/Pandectae:This was the collection of the edicts.
  3. Codex:This contained all the laws of the emperors.
  4. Novellae:This contained all new laws created.

Middle Ages

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See also:Canon law of the Catholic Church

During the late Middle Ages, education started to grow. First education was limited to the monasteries and abbeys, but expanded to cathedrals and schools in the city in the 11th century, eventually creating universities.[12]The universities had five faculties: arts, medicine, theology, canon law andIus Civile,or civil law. Canon law, or ecclesiastical law are laws created by the Pope, head of the Roman Catholic Church. The last form was also called secular law, or Roman law. It was mainly based on theCorpus Iuris Civilis,which had been rediscovered in 1070. Roman law was mainly used for "worldly" affairs, while canon law was used for questions related to the church.[13]

The period starting in the 11th century with the discovery of theCorpus Iuris Civilisis also called theScholastics,which can be divided in the early and late scholastics. It is characterised with the renewed interest in the old texts.

Ius Civile

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Early scholastics (1070–1263)
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The rediscovery of the Digesta from theCorpus Iuris Civilisled the university of Bologna to start teaching Roman law.[14]Professors at the university were asked to research the Roman laws and advise the Emperor and the Pope with regards to the old laws. This led to theGlossatorsto start translating and recreating theCorpus Iuris Civilisand create literature around it:

  • Glossae:translations of the old Roman laws
  • Summae:summaries
  • Brocardica:short sentences that made the old laws easier to remember, a sort of mnemonic
  • Quaestio Disputata(sic et non): a dialectic method of seeking the argument and refute it.[15]

Accursius wrote theGlossa Ordinariain 1263, ending the early scholastics.[16]

Late scholastics (1263–1453)
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The successors of the Glossators were thePost-Glossatorsor Commentators. They looked at a subject in a logical and systematic way by writing comments with the texts, treatises andconsilia,which are advises given according to the old Roman law.[17][18]

Canon Law

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Gratian
Early Scholastics (1070–1234)
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Canon law knows a few forms of laws: thecanones,decisions made by Councils, and thedecreta,decisions made by the Popes. The monk Gratian, one of the well-knowndecretists,started to organise all of the church law, which is now known as theDecretum Gratiani,or simply asDecretum.It forms the first part of the collection of six legal texts, which together became known as theCorpus Juris Canonici.It was used bycanonistsof theRoman Catholic Churchuntil Pentecost (19 May) 1918, when a revisedCode of Canon Law(Codex Iuris Canonici) promulgated byPope Benedict XVon 27 May 1917 obtained legal force.[19][20][21]

Late Scholastics (1234–1453)
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TheDecretalists,like the post-glossators forIus Civile,started to write treatises, comments and advises with the texts.[22][23]

Ius Commune

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Around the 15th century, a process of reception and acculturation started with both laws. The final product was known asIus Commune.It was a combination of canon law, which represented the common norms and principles, and Roman law, which were the actual rules and terms. It meant the creation of more legal texts and books and a more systematic way of going through the legal process.[24]In the new legal process, appeal was possible. The process would be partiallyinquisitorial,where the judge would actively investigate all the evidence before him, but also partiallyadversarial,where both parties are responsible for finding the evidence to convince the judge.[25]

Lady Justice(Latin:Justicia), symbol of the judiciary.[26][27]Statue at Shelby County Courthouse, Memphis, Tennessee

After theFrench Revolution,lawmakers stopped interpretation of law by judges, and the legislature was the only body permitted to interpret the law; this prohibition was later overturned by theNapoleonic Code.[28]

Functions of the judiciary in different law systems

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In common law jurisdictions, courts interpret law; this includes constitutions, statutes, and regulations. They also make law (but in a limited sense, limited to the facts of particular cases) based upon priorcase lawin areas where the legislature has not made law. For instance, thetortofnegligenceis not derived from statute law in most common law jurisdictions. The termcommon lawrefers to this kind of law. Common law decisions set precedent for all courts to follow. This is sometimes calledstare decisis.

Country-specific functions

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In theUnited States court system,theSupreme Courtis the final authority on the interpretation of the federal Constitution and all statutes and regulations created pursuant to it, as well as the constitutionality of the various state laws; in theUS federal court system,federal cases are tried intrial courts,known as theUS district courts,followed byappellate courtsand then the Supreme Court.State courts,which try 98% oflitigation,[29]may have different names and organization; trial courts may be called "courts of common plea", appellate courts "superior courts" or "commonwealth courts".[30]The judicial system, whether state or federal, begins with a court of first instance, is appealed to an appellate court, and then ends at the court of last resort.[31]

InFrance,the final authority on the interpretation of the law is theCouncil of Statefor administrative cases, and theCourt of Cassationfor civil and criminal cases.

In thePeople's Republic of China,the final authority on the interpretation of the law is theNational People's Congress.

Other countries such asArgentinahave mixed systems that include lower courts, appeals courts, acassation court(for criminal law) and a Supreme Court. In this system the Supreme Court is always the final authority, but criminal cases have four stages, one more than civil law does. On the court sits a total of nine justices. This number has been changed several times.

Judicial systems by country

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For judicial systems of individual countries other than Japan, Mexico, and the US (for which see below), and some US states, see "Judiciary of...".

Japan

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Main article:Judicial system of Japan

Japan's process for selecting judges is longer and more stringent than in various countries, like theUnited Statesand inMexico.[32]Assistant judges are appointed from those who have completed their training at the Legal Training and Research Institute located inWako.Once appointed, assistant judges still may not qualify to sit alone until they have served for five years, and have been appointed by theSupreme Court of Japan.Judges require ten years of experience in practical affairs, as a public prosecutor or practicing attorney. In theJapanese judicial branchthere is the Supreme Court, eight high courts, fifty district courts, fifty family courts, and 438 summary courts.[33][34]

Mexico

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Justices of theMexican Supreme Courtare appointed by thePresident of Mexico,and then are approved by theMexican Senateto serve for a life term. Other justices are appointed by the Supreme Court and serve for six years. Federal courts consist of the 11 ministers of the Supreme Court, 32 circuit tribunals and 98 district courts. The Supreme Court of Mexico is located inMexico City.Supreme Court Judges must be of ages 35 to 65 and hold a law degree during the five years preceding their nomination.[35]

United States

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Main articles:Federal judiciary of the United StatesandList of courts of the United States

United States Supreme Courtjustices are appointed by thePresident of the United Statesand approved by theUnited States Senate.The Supreme Court justices serve for life term or until retirement. The Supreme Court is located inWashington, D.C.TheUnited States federal court systemconsists of 94federal judicial districts.The 94 districts are then divided up intotwelve regional circuits.The United States has five different types of courts that are considered subordinate to the Supreme Court:United States bankruptcy courts,United States Court of Appeals for the Federal Circuit,United States Court of International Trade,United States courts of appeals,andUnited States district courts.[36][37]

Immigration courts are not part of the judicial branch; immigration judges are employees of theExecutive Office for Immigration Review,part of theUnited States Department of Justicein the executive branch.

Eachstate,districtandinhabited territoryalso has its owncourt systemoperating within the legal framework of the respective jurisdiction, responsible for hearing cases regardingstate and territorial law.All these jurisdictions also have their ownsupreme courts(or equivalent) which serve as the highest courts of law within their respective jurisdictions.

See also

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References

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  1. ^Lesaffer, Randall (25 June 2009).European legal history: a cultural and political perspective.Translated by Arriens, Jan. Cambridge, UK. pp. 67, 68.ISBN9780521877985.OCLC299718438.{{cite book}}:CS1 maint: location missing publisher (link)
  2. ^Jolowicz, H.F. (1952).Historical Introduction to the Study of Roman Law.Cambridge. p. 108.{{cite book}}:CS1 maint: location missing publisher (link)
  3. ^Crawford, M.H. 'Twelve Tables' in Simon Hornblower, Antony Spawforth, and Esther Eidinow (eds.)Oxford Classical Dictionary(4th ed.)
  4. ^Cicero, Marcus Tullius (2011).De Oratore.Cambridge University Press.ISBN9780521593601.OCLC781329456.
  5. ^Lesaffer, Randall (25 June 2009).European legal history: a cultural and political perspective.Translated by Arriens, Jan. Cambridge, UK. pp. 69–75, 92–93.ISBN9780521877985.OCLC299718438.{{cite book}}:CS1 maint: location missing publisher (link)
  6. ^Lesaffer, Randall (25 June 2009).European legal history: a cultural and political perspective.Translated by Arriens, Jan. Cambridge, UK. pp. 85–86.ISBN9780521877985.OCLC299718438.{{cite book}}:CS1 maint: location missing publisher (link)
  7. ^Schulz, Fritz (1953).History of Roman Legal Science.Oxford: Oxford University. p. 53.
  8. ^Lesaffer, Randall (25 June 2009).European legal history: a cultural and political perspective.Translated by Arriens, Jan. Cambridge, England. pp. 105–106.ISBN9780521877985.OCLC299718438.{{cite book}}:CS1 maint: location missing publisher (link)
  9. ^"Roman Legal Procedure".Encyclopaedia Britannica.3 May 2019.Archivedfrom the original on 27 May 2019.Retrieved16 May2019.
  10. ^du Plessis, Paul J.; Ando, Clifford; Tuori, Kaius, eds. (2 November 2016). "The Oxford Handbook of Roman Law and Society".Oxford Handbooks Online:153.doi:10.1093/oxfordhb/9780198728689.001.0001.ISBN9780198728689.
  11. ^Lesaffer, Randall (25 June 2009).European legal history: a cultural and political perspective.Translated by Arriens, Jan. Cambridge, UK. pp. 109–113.ISBN9780521877985.OCLC299718438.{{cite book}}:CS1 maint: location missing publisher (link)
  12. ^Backman, C.R. (2014).Worlds of Medieval Europe.Oxford University Press. pp. 232–237, 247–252.
  13. ^Lesaffer, Randall (25 June 2009).European legal history: a cultural and political perspective.Translated by Arriens, Jan. Cambridge, UK. pp. 248–252.ISBN9780521877985.OCLC299718438.{{cite book}}:CS1 maint: location missing publisher (link)
  14. ^Lesaffer, Randall (25 June 2009).European legal history: a cultural and political perspective.Translated by Arriens, Jan. Cambridge, UK. pp. 252–254.ISBN9780521877985.OCLC299718438.{{cite book}}:CS1 maint: location missing publisher (link)
  15. ^van Asselt, Willem J. (April 2011).Introduction to Reformed Scholasticism.Pleizier, Theo., Rouwendal, P. L. (Pieter Lourens), 1973–, Wisse, Maarten, 1973–. Grand Rapids, Mich.ISBN9781601783196.{{cite book}}:CS1 maint: location missing publisher (link)
  16. ^Lesaffer, Randall (25 June 2009).European legal history: a cultural and political perspective.Translated by Arriens, Jan. Cambridge, UK. pp. 254–257.ISBN9780521877985.OCLC299718438.{{cite book}}:CS1 maint: location missing publisher (link)
  17. ^Lesaffer, Randall (25 June 2009).European legal history: a cultural and political perspective.Translated by Arriens, Jan. Cambridge, UK. pp. 257–261.ISBN9780521877985.OCLC299718438.{{cite book}}:CS1 maint: location missing publisher (link)
  18. ^Skyrms, J.F. (1980)."Commentators on The Roman Law".Books at Iowa.32:3–14.doi:10.17077/0006-7474.1414.
  19. ^Benedict XV, Pope,doi:10.1163/1877-5888_rpp_sim_01749
  20. ^Backman, C.R. (2014).Worlds of Medieval Europe.Oxford University Press. pp. 237–241.
  21. ^Lesaffer, Randall (25 June 2009).European legal history: a cultural and political perspective.Translated by Arriens, Jan. Cambridge, UK. pp. 261–265.ISBN9780521877985.OCLC299718438.{{cite book}}:CS1 maint: location missing publisher (link)
  22. ^Lesaffer, Randall (25 June 2009).European legal history: a cultural and political perspective.Translated by Arriens, Jan. Cambridge, UK. p. 265.ISBN9780521877985.OCLC299718438.{{cite book}}:CS1 maint: location missing publisher (link)
  23. ^Izbicki, T.M. (2015).The Eucharist in Medieval Canon Law.Cambridge University Press. pp. xv.ISBN9781107124417.
  24. ^Dębiński, Antoni (2010).Church and Roman law.Lublin: Wydawnictwo KUL. pp. 82–96.ISBN9788377020128.
  25. ^Lesaffer, Randall (25 June 2009).European legal history: a cultural and political perspective.Translated by Arriens, Jan. Cambridge, UK. pp. 265–266, 269–274.ISBN9780521877985.OCLC299718438.{{cite book}}:CS1 maint: location missing publisher (link)
  26. ^Hamilton, Marci.God vs. the Gavel,p. 296 (Cambridge University Press 2005): "The symbol of the judicial system, seen in courtrooms throughout the United States, is blindfolded Lady Justice."
  27. ^Fabri, Marco.The challenge of change for judicial systems,p, 137 (IOS Press 2000): "the judicial system is intended to be apolitical, its symbol being that of a blindfolded Lady Justice holding balanced scales."
  28. ^Cappelletti, Mauro et al.The Italian Legal System,p. 150 (Stanford University Press 1967).
  29. ^American Bar Association (2004).How the Legal System Works: The Structure of the Court System, State and Federal CourtsArchived16 July 2010 at theWayback Machine.InABA Family Legal Guide.
  30. ^The American Legal SystemArchived13 February 2010 at theWayback Machine.
  31. ^Public Services Department."Introduction to the Courth system"(PDF).Syracuse University College of Law.Archived fromthe original(PDF)on 27 July 2011.
  32. ^Grider, Alisa."How the Judicial System Works Around The World".Archivedfrom the original on 19 October 2014.Retrieved23 May2006.
  33. ^Mosleh, Peter."Japan's Judiciary".Southern Methodist University. Archived fromthe originalon 26 May 2013.Retrieved20 April2013.
  34. ^"The Japanese Judicial System".Archivedfrom the original on 16 January 2013.Retrieved20 April2013.
  35. ^"Mexico-Judicial Legislative".Archivedfrom the original on 19 June 2013.Retrieved20 April2013.
  36. ^"The Judicial Branch".whitehouse.gov.Retrieved20 April2013– viaNational Archives.
  37. ^"Federal Courts".Archivedfrom the original on 22 April 2013.Retrieved20 April2013.

Further reading

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  • Cardozo, Benjamin N. (1998).The Nature of the Judicial Process.New Haven:Yale University Press.
  • Feinberg, Kenneth, Jack Kress, Gary McDowell, and Warren E. Burger (1986).The High Cost and Effect of Litigation,3 vols.
  • Frank, Jerome (1985).Law and the Modern Mind.Birmingham, AL: Legal Classics Library.
  • Levi, Edward H. (1949)An Introduction to Legal Reasoning.Chicago:University of Chicago Press.
  • Marshall, Thurgood (2001).Thurgood Marshall: His Speeches, Writings, Arguments, Opinions and Reminiscences.Chicago: Lawrence Hill Books.
  • McCloskey, Robert G., and Sanford Levinson (2005).The American Supreme Court,4th ed. Chicago: University of Chicago Press.
  • Miller, Arthur S. (1985).Politics, Democracy and the Supreme Court: Essays on the Future of Constitutional Theory.Westport, CT: Greenwood Press.
  • Sandefur, Timothy (2008). "Judiciary". InHamowy, Ronald(ed.).Archived copy.The Encyclopedia of Libertarianism.Thousand Oaks, CA:SAGE;Cato Institute.pp. 265–67.doi:10.4135/9781412965811.n160.ISBN978-1-4129-6580-4.LCCN2008009151.OCLC750831024.Archivedfrom the original on 9 January 2023.Retrieved15 December2016.{{cite encyclopedia}}:CS1 maint: archived copy as title (link)
  • Tribe, Laurence (1985).God Save This Honorable Court: How the Choice of Supreme Court Justices Shapes Our History.New York: Random House.
  • Zelermyer, William (1977).The Legal System in Operation.St. Paul, MN: West Publishing.
[edit]
Library resourcesabout
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  • Media related toJudiciariesat Wikimedia Commons
  • Quotations related toJudiciaryat Wikiquote
  • The dictionary definition ofjudiciaryat Wiktionary simphiwe mthembu @ustalkedsimphiwe on ig
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