Law Judges And Judicial Power Essay Research

Law- Judges And Judicial Power Essay, Research Paper

Judges exercise judicial power. They play an integral role in the judicial process, as they apply the law and in some cases create the law. While doing this they must take consideration of current political, social, moral and economic considerations and adhere to a certain consensus of society. The role of the judge is taken for granted by many people who view their role as an administrative one. Judges, especially those of the Supreme and High Courts are under extreme pressure and do not just decide cases in a machine like fashion- by reading and administering precedents.

What is it that Judges do when they decide cases:

A judge makes binding decisions affecting the rights and duties of people and institutions. In carrying out these duties, the judge can use three main sources of Australian law. These are; Acts of Parliament or legislation, the common law and precedents, and the constitution. Judges have these tools to work with, and they decide cases based on their interpretations of them. Faced with a case, a judge seeks the relevant legislation and statutes, looks upon the constitution if required and seeks precedent in order to maintain the law as it stands.

Benjamin Cardozo wrote that:

Sometimes the rule of constitution or of statute is clear, and then the difficulties vanish. Even when they are present, they lack at times some of that element of mystery which accompanies creative energy. We reach the land of mystery when constitution and statute are silent, and the judge must look to the common law for the rule that fits the case.

Cardozo adds that once a judge is in this position, where legislation is silent , he turns to precedent for answers. Looking at precedent cases is an imperative role for the judge. Taking the view of the layman, past cases must be adhered to in order for justice to be served. For example, say I was to buy canned fruit from the supermarket. While pouring the fruit into my plate after dinner I notice an insect within the fruit. Naturally I am disgusted and want to have nothing to do with this fruit and the manufacturer who supplied the fruit. I know in my head, even without studying law that this is violation of my right as a consumer, and that in the past people who encountered such incidence where able to gain monetary compensation. Students of law would automatically relate this incident to the classic case of Donoghue v. Stevenson. Judges would know this and would, if the facts of the case permit, rule in my favour, as was done in Donoghue v. Stevenson. If a case was decided against a person when they were a defendant, they would expect the same result when they are the plaintiff. To judge differently would cause outrage. That is how the justice system builds up authority, and it is expected that the judges would abide by these authorities, unless there are special circumstances that do not permit it.

This is only one aspect of a judge s duty in relation to precedents. As Cardozo stated, It is when the colors do not match when the there is no decisive precedent, that the serious business of the judge begins. He must then fashion the law for the litigants before him. This is where a vast amount of pressure is placed upon the judge to make a righteous decision. Following the constitution and statutes is more systematic, however creating law and setting authority is a duty of judge that is intrinsically complex and fragile.

So to what extent do judges make the law? The common law is a judge made law. It has been developed by the courts and continues to be adapted to meet new situations and changing circumstances. The legislation and constitution may sometimes be unclear or ambiguous due to their nature. The constitution was written in a way to adapt to future changes and is therefor subject to interpretation. It is up to the court to decide between different interpretations.

What role should they play in making and/or applying law:

J.H. Merryman postulated the following on the way the civil judges are viewed:

The picture of the judicial process that emerges is one of fairly routine activity. The judge becomes a kind of expert clerk His function is merely to find the right legislative provision, couple it with the fact situation, and bless the solution that is more or less automatically produced from the union. The net image is that of the judge as an operator of a machine designed and built by legislators. His function is a mechanical one.

This is not a highly flattering description of the judge, but is it accurate? Judges can play a vital role in the making and application of the law. As mentioned above, judges are lawmakers who interpret statutes and the constitution, they create law when there is no precedent and interpret the precedent when there is a need to so. Judges have molded the common law into what it is today. Professor Cappelletti, placed the judge in righteous position when he wrote:

Judges are compelled to be Law makers They have to interpret, i.e. to integrate, to clarify, mould , to transform and, not infrequently, to create ex novo the law This fact, however, does not make them legislators. There remains, I think, an essential difference between the judicial and the legislative process Good judges can certainly be, and can appear to be, creative, dynamic, activist