Comparative Judicial Systems Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

The fundamental purpose for judicial systems or the court systems is to provide an institutional mechanism for the resolution of disputes. While the specific characteristics of judicial institutions vary across countries, they all operate to ensure that a neutral party (i.e., the individual judge or group of judges) exists to resolve conflicts between separate parties. As Martin Shapiro (1981) observes, courts serve as the lynchpin in a triadic system of conflict resolution—where two parties experience a dispute and rely on a neutral third party to resolve the dispute. To better understand how courts fulfill their conflict resolution responsibilities, this entry provides information on the composition and organization of judicial systems around the world. It focuses specifically on the legal structures of courts, the role of judges and attorneys during court proceedings, and the relation of the judiciary to other branches of government.

Legal Structures Of Courts

When deciding how to organize their judicial systems, countries initially must address two important questions. The first question involves the legal foundation of the judicial system. What types of law will be emphasized or even permitted in judicial proceedings? In civil-law systems, emphasis is placed on statutory laws and specific legal codes that typically codify elements of customary law. Of note, civil-law systems are the most prevalent law system worldwide, found typically in continental Europe and the former colonies of those countries, including all of South America minus Guyana, the Caribbean, most of Africa, and most of Asia and Southeast Asia. Consequently, in civil-law systems, a tremendous amount of legal deference is afforded to legislatures and parliaments, with courts playing a more subservient role in the development of law.

In common-law systems, which are primarily associated with the United Kingdom and the United States, emphasis is placed not just on legislative statutes, but also on judge-made law. Common-law countries allow for rulings from relevant past judicial decisions, called precedent, to determine the proper outcome of contemporary disputes. Common-law systems are additionally found in Australia, Canada, India, and parts of Africa including Kenya, Tanzania, Zambia, and Zimbabwe. Arguably, the introduction of judge-made law presents these courts with additional avenues to have a substantial influence on broader policies. Some countries, primarily found in the Middle East, also have adopted a system of law based on sharia, or Islamic law. In these countries, the legal foundations of the judicial system are derived from the Quran (or Koran), and courts apply religious principles to resolve disputes.

The second question to be considered when establishing a judicial system that countries must address is whether their judicial systems involve the jurisdiction of specific courts. The term jurisdiction refers to the authority vested in courts to resolve certain disputes. Some countries, such as the United States, provide their courts with general jurisdiction—the authority to hear any and all legal disputes. Other countries, such as France, have a set of courts with general jurisdiction to resolve the majority of disputes, but also rely on a special constitutional court derived from the Kelsenian court model to resolve more important conflicts related to constitutional provisions or protections. Essentially, the constitutional courts in this model do not address specific complaints involving the rights of individual citizens, but rather they rule on the constitutionality of the acts of public powers, seeking to protect the constitutional order.

The Role Of Judges And Attorneys

The role of judges and attorneys differs dramatically— especially during trials—depending on whether the country employs an adversarial or inquisitorial system. Countries using the former system pit one litigant directly against the other as adversaries to resolve disputes. In these adversarial systems, the attorneys for each litigant actively argue their clients’ positions both in terms of the evidence introduced to the court and the legal arguments developed. Thus, each litigant’s attorney tries to prove a particular set of facts, circumstances, and law while simultaneously trying to discredit the opponent’s version. Given the active nature of the attorneys, the role of the judge in adversarial systems is somewhat more passive. Judges remain the neutral arbiter, interjecting themselves into the court proceedings only to rule on matters of procedure. In this way, the judge acts as a referee over the attorneys, ensuring they follow the proper rules of litigation.

In countries employing an inquisitorial system, judges possess a more active role and work with attorneys to uncover what actually happened. Rather than rely on attorneys to provide evidence and legal arguments as opponents, inquisitorial systems allow the judges to assume more control over court proceedings. They can call on court-appointed experts to provide neutral testimony, instead of relying on attorneys to call their own experts, who may provide testimony favorable to only the attorney’s litigant. Additionally, judges routinely ask questions of attorneys and litigants directly, in order to clarify legal or evidentiary aspects. Consequently, the role of the judge in these countries is more assertive than what is observed in adversarial systems, where the role of the attorney is more active.

The Relation Of The Judiciary To Other Branches Of Government

The ability of courts to serve effectively as the lynchpins in the conflict resolution process also depends on their relationship to the other branches of government. In particular, effective judicial systems must possess suitable levels of independence and legitimacy, especially when their decisions affect other governmental institutions and powers. At a fundamental level, judicial independence is necessary to ensure the decision-making process of courts and judges is not influenced or biased by external considerations for a more detailed discussion of judicial independence. Many countries provide specific provisions for judicial independence in their constitutions, while simultaneously giving courts the authority to nullify statutes or actions of governmental institutions by claiming them to be unconstitutional. This latter authority is called judicial review.

For other branches of government to comply with court decisions—especially those decisions that declare governmental actions or statutes unconstitutional—courts must also enjoy suitable levels of legitimacy. This concept refers to the reservoir of good will developed by the judiciary among the other branches of government and also among the general populace of the country. Courts with higher levels of legitimacy can expect and receive widespread compliance with their decisions, even rulings that are unpopular. Courts with low levels of legitimacy must tread carefully as they resolve controversial disputes. Further, court systems with the ability to uphold and defend their own interpretation of the law and rulings on constitutionality or judicial review are more commonly associated with democratic regimes and less likely to be as effective in socialist, totalitarian, or theocratic systems.

Bibliography:

Becker,Theodore L. Comparative Judicial Politics: The Political Functionings of Courts. Chicago: Rand McNally, 1970.
Gibson, James L., Gregory A. Caldeira, and Vanessa A. Baird. “On the Legitimacy of National High Courts.” American Political Science Review 92 (June 1998): 343–358.
Jacob, Herbert, Erhard Blankenburg, Herbert M. Kritzer, Doris Marie Provine, and Joseph Sanders, eds. Courts, Law, and Politics in Comparative Perspective. New Haven, Conn.:Yale University Press, 1996.
Russell, Peter H., and David M. O’Brien. Judicial Independence in the Age of Democracy: Critical Perspectives from around the World. Charlottesville: University of Virginia Press, 2001.
Shapiro, Martin. Courts: A Comparative and Political Analysis. Chicago: University of Chicago Press, 1981.
Stone Sweet, Alec. Governing with Judges: Constitutional Politics in Europe. New York: Oxford University Press, 2000.
Tate, C. Neal, and Torbjörn Vallinder, eds. The Global Expansion of Judicial Power. New York: New York University Press, 1995.

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