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The judiciary refers to the courts or institutions that administer the law on behalf of the state or the sovereign. It also refers collectively to the judges, magistrates, and other personnel who function in courts and resolve disputes under law or legal principles. The judiciary’s role in government and the process by which judges decide disputes vary among countries and over time.

Legal Systems

The role of judges is shaped in part by the legal system in which they operate. Comparative legal scholars have identified several different families or systems of law: the Anglo-American systems of common law; the Roman-inspired French, Germanic, and Scandinavian civil-law systems; socialist legal systems; Chinese or Far Eastern systems of law; and Hindu or Islamic religiously based families of law. Most research in political science examines the role of judges in common-law or civil-law legal systems.

Common-law systems date back as early as eleventh century England and are today found in most nations that trace their legal heritage to Britain. Such systems formally recognize the creative, policy-making role of judges. Judicial decisions are a source of law alongside government regulations, statutes, and constitutional provisions. In cases of government regulations, if a judge finds no authoritative statement of the law, they can “make” law by enunciating a new rule, principle, or legal interpretation that allows them to resolve the dispute at hand but is also applicable to future cases by creating a precedent, the body of which is called common law. In common-law systems, precedent binds future decisions under the doctrine of stare decisis, a Latin term meaning “standing by things once decided.” Precedent has vertical and horizontal dimensions. Vertical precedent holds that decisions of higher courts are binding on lower courts, while horizontal precedent holds that a court’s interpretation of the law should be consistently applied by the same court in future cases. Common-law systems thus recognize the creative, lawmaking role of judges while also ensuring uniformity and stability in the law through the doctrine of stare decisis.

In civil-law legal systems, judges interpret law but are in theory prohibited from creating law. Courts are not empowered to issue rulings more general than the case being judged, and only legislative enactments (rather than judicial precedents) are legally binding. Civil-law systems have their origin in Roman law and Emperor Justinian’s Corpus Juris Civilis issued in the sixth century. In later centuries, continental legal scholars adopted a similar approach and developed extensive legal codes, the most well-known being the Napoleonic Code. Within these systems, it was believed that because the law was written very specifically, there was no need for judicial interpretation. Judges base their decisions on the provisions of codes or statutes from which solutions in particular cases must be derived. Civil-law systems do not recognize the doctrine of stare decisis but rather the concept of jurisprudence constant that requires judges to rule in a predictable and nondiscretionary way. Judges in socialist legal traditions also are expected to strictly apply legislative codes but legal interpretation is explicitly recognized as part of the political process and judges are not considered independent interpreters of the law. In the People’s Republic of China, for example, the final authority over the interpretation of the law is the National People’s Congress rather than judges.

In practice, civil-law judges are often just as creative as common-law judges. When applying textual provisions of a code, civil-law judges must often look to underlying rationales in the structure or purpose of the code to resolve disputes. The culture and behavior of judges in civil and common-law systems nevertheless differ considerably. Civil-law judges are more constrained in interpreting statutes and more reticent to look to principles beyond legal texts. Judicial opinions in common-law systems also tend to be longer and contain elaborate reasoning, whereas opinions in civil-law countries are short and formal in nature, as judges are apt to cite only legislation but not prior case law.

Legal academic scholarship about judges and the role of the judiciary tends to be prescriptive, focusing on normative theories of jurisprudence and the development of legal doctrines. Although not without a normative component, political science scholarship tends to be empirically inclined, focusing on how judges actually behave and on the social and political impact of judicial decisions. Political science scholarship has covered a broad range of issues and topics but three strands of research are central to the field: judicial independence, judicial policy-making, and judicial decision-making.

Judicial Independence

An independent judiciary is critical to democracy but the degree to which the judiciary is conceptually and functionally independent of other branches of government varies. In parliamentary democracies that fuse different governmental functions in a single institution, the judicial function is often conceptualized as part of the executive. Judges and government ministers both apply laws made by parliament; while ministers apply the law through general policies or regulations, judges apply it in particular cases between individual litigants. In these countries there is less concern about judicial separation and more emphasis on the idea of judicial impartiality. In Great Britain, for example, the Law Lords is the highest court in the land and a part of Parliament. By contrast, countries that embrace a stricter separation of powers tend to emphasize the idea of separateness as well as judicial impartiality. In these systems judges are usually conceptualized as performing a distinct function of government and are barred from simultaneous service in other branches. In the United States, for example, federal judges are barred from membership or service in the executive or legislative branches; the only exception is the chief justice’s role in presiding over presidential impeachment trials in the Senate.

The relationship between the judiciary and other branches of government is also influenced by differences in the legal system. In some common-law countries, the judiciary is expected to balance or check the power of other branches of government. By contrast in many civil-law systems, such as France, the purpose of separating powers was to assign specialized roles to legislation and judging. Formal recognition of the policy-making role of judges also leads many common-law countries to provide some form of direct democratic control over the appointment of judges. Federal judges in the United States are nominated by the president and confirmed by the Senate, and in many American states judges are directly elected. In British Commonwealth countries such as Australia, Canada, and England, judges are often selected by the elected executive (though usually assisted by selection commissions). By contrast, in civil-law systems judicial selection usually is removed from direct political influence. The bench usually is appointed in the same fashion as other parts of the administrative bureaucracy. In France, for example, there is a specialized graduate school for judges; in Japan judges are selected by the court-administered Legal Training Research Institute.

Scholars have adopted various approaches to analyze judicial independence. A large body of research examines the formal institutional structures that tie courts to the elected branches. In addition to differences in the way judges are selected, provisions for judicial tenure also differ. In many civil-law systems, judges are considered professional civil servants and spend their entire careers on the bench, although their tenure on any one court may be limited. In common-law systems, judges are sometimes given life tenure as a means of securing their independence, although in many jurisdictions judges are elected or appointed to fixed terms of office. Studies indicate that the mode of selection and the provisions for tenure have important consequences for the way judges behave and their independence from other branches or elected elites. In a classic 1957 study of the U.S. Supreme Court for example, Robert Dahl found that the political process of appointing justices ensured that the court acted in line with the party coalition that controlled the national government. Similarly, studies of state judiciaries have found that judges who stand for periodic election are more likely to behave in ways that reflect public opinion and popular attitudes than those with life tenure. Other institutional mechanisms that political scientists have studied as affecting judicial independence include provisions for removal and discipline of judges, control over judicial administration and budgets, and the formal powers granted to courts and judges by the constitution.

Rather than focusing on specific institutional arrangements, some scholars studying judicial independence have analyzed whether judges can act without political manipulation or examined strategic interactions between courts and other branches. This latter approach assumes that political elites foster or thwart judicial independence to advance their political goals. Judicial independence is fluid rather than fixed and waxes or wanes depending on the interests of other political elites. A 2003 study by Tom Ginsburg comparing the judicial role in Asian democracies found that political elites were more likely to foster an independent judiciary in countries with multiparty electoral competition than in countries dominated by a single party because judicial independence provides a form of “insurance” to prospective electoral losers. Other scholars have employed formal theory or game-theoretic approaches to explain why elected elites might foster judicial independence as a way of gaining important informational advantages not otherwise available to them.

Judicial Policy Making

A second major research focus in political science is the scope and impact of judicial policy making. The power of judges to make policy depends on several factors. For example, common-law judges are generally more active policy makers than civil-law judges, and appellate courts are more powerful than trial courts. The most salient feature of a court’s ability to make policy is the power of constitutional review: the authority to examine the actions of the legislative or executive arms of the government and determine whether such actions are consistent with the country’s constitution.

Elements of constitutional review date back to as early as the Holy Roman Empire in the twelfth century, where judicial-type bodies were empowered to deal with jurisdictional disputes between rulers. Nascent forms of constitutional review later emerged in France in the thirteenth century and in Portugal under Philip’s Code in the seventeenth century. The modern concept of judicial review however emerged in the early nineteenth century as a distinctively American institution. Chief Justice John Marshall’s famous opinion in Marbury v. Madison in 1803 is generally credited with establishing judicial review in the United States (although there is some dispute among contemporary scholars about its importance). Today more than 150 countries around the world have empowered courts to exercise some form of constitutional review.

Judicial constitutional review takes several forms. In some countries such as Canada or the United States, constitutional review can only be exercised in concrete cases or controversies and only a posteriori or after the fact. Laws or government actions can be held unconstitutional only when they have already occurred and only when they involve a specific dispute between separate litigants. By contrast, in other countries, such as France, judicial review takes place in the abstract and only before the law or government action occurs. In principle review is advisory, prospective, and usually abstract or in reference to a general constitutional question rather than particular parties. In countries such as Germany or South Korea, courts can exercise judicial review only after a law has taken effect, though they can do so either in the abstract or in concrete cases.

Systems of judicial review also differ in either concentrating or diffusing the power. Approximately one-third of countries allowing judicial review follow the American model wherein the power is diffused throughout the judicial system and can be exercised by ordinary courts (e.g., Canada, Japan, and the United States). Another third follow the Austrian or continental model, wherein review is handled only by specialized constitutional courts or special chambers of high courts (e.g., France, Germany, and New Zealand).The countries have some form of mixed system that combines elements of concentrated and diffused review, such as allowing only specialized courts to decide claims of unconstitutionality but allowing other courts to decline to apply laws deemed unconstitutional (e.g., Brazil, Portugal, and Taiwan).

Legal academic scholarship has focused largely on what law professor Alexander Bickel called the counter majoritarian difficulty, or the normative problem of reconciling judicial review with democratic theory. Political science scholarship has generally focused instead on the empirical conditions that give rise to judicial review and the substantive interests that it advances. For example, a large body of empirical scholarship has demonstrated that far from protecting disempowered minorities, judicial review often serves to entrench or advance the interests of political and economic elites. Other studies have demonstrated that judicial review can effect policy change only when it is supported and implemented by other powerful political actors.

Judicial Decision Making

One of the most sophisticated strands of political science research examines judicial decision making. In contrast to legal academic scholarship, which characterizes judicial decisions as driven by legal doctrines, political science has focused on the political and social forces that influence judicial choice. This body of literature has examined various extralegal influences on judges, including intracourt relations, management of workloads, career advancement, or the role of personal characteristics such as race, sex, and religion. Until recently most research on decision making focused on the U.S. Supreme Court and adopted behavior list approaches. Indeed C. Herman Pritchett is generally credited with pioneering the field in his seminal 1948 work The Roosevelt Court. By examining individual voting patterns, Pritchett demonstrated that justices on the court voted in blocs, with some consistently voting in a liberal direction and others voting in a conservative direction. The systematic voting patterns led him to argue the justices based their decisions on ideological or political policy preferences rather than the law. Later scholars applied the techniques of dimensional analysis to develop increasingly sophisticated measures of judicial ideology. Political scientists Jeffrey Segal and Harold Spaeth distilled the insights of this line of empirical research in their major 1993 work The Supreme Court and the Attitudinal Model. While the attitudinal model is specifically tailored to the unique institutional features of the U.S. Supreme Court (and is not readily transferable to study of other courts such as trial courts bound by appellate decisions or courts that do not permit separate votes or opinions), its key insight of modeling decision making as a function of individual judicial policy preferences has been extended to research of decision making on many other courts and by judges in many other countries.

Rather than focus narrowly on individual attitudes, recent scholarship has examined the role of institutions in structuring judicial choice. One line of this research builds on Walter Murphy’s 1964 classic study, The Elements of Judicial Strategy, which posits that judges are motivated to maximize individual policy preference but recognizes that they must act strategically with other judges and other political actors to achieve their goals. Often employing formal or game-theoretic modeling, researchers adopting this approach have examined both exogenous institutional constraints on judicial choice, such as the relative power of other branches or the relative dependence of a court on other courts, as well as endogenous constraints on choice, such as the institutional rules, procedures, and norms internal to a court.

A different line of institutionally focused research on decision making adopts historical and interpretive analysis. It seeks to demonstrate how judicial preferences are not only constrained but also constituted by institutional norms and structures. Rather than reflecting policy preferences, judicial decisions are viewed as the product of institutionalized norms and perspectives that are distinctive to courts and the judiciary. Rather than separating legal and political attitudes in the judicial mind, this research connects the two, demonstrating how judicial beliefs about the law are shaped by political and social forces over time. This scholarship shares an affinity with previous political science scholarship that was often labeled political jurisprudence. It too sought to analyze judicial decisions in light of how broader political and social changes influenced legal doctrines and institutions. The key distinction is the extent to which the later research adopts a more rigorous and self-conscious methodology grounded in new institutionalist theories of political change.

Other approaches to judicial decision making have included psychological analyses that demonstrate that judges seek approval from audiences such as policy elites, law faculty, the public, and the media, or that judges seek to legitimize their policy choices to implementing populations by appealing to legal norms. Like other areas of judicial behavior research, studies of decision making are methodologically diverse and theoretically rich.

Bibliography:

Baum, Lawrence. Judges and Their Audiences: A Perspective on Judicial Behavior. Princeton, N.J.: Princeton University Press, 2006.
Cameron, Charles M., Jeffrey A. Segal, and Donald Songer. “Strategic Auditing in a Political Hierarchy: An Informational Model of the Supreme Court’s Certiorari Decisions. American Political Science Review 94, no. 1 (2000): 101–116.
Clayton, Cornell, and Howard Gillman. Supreme Court Decision-making: New Institutionalist Approaches. Chicago: University of Chicago Press, 1999.
Dahl, Robert. “Decision-making in a Democracy:The Supreme Court as a National Policy-maker.” Journal of Public Law 6 (Fall 1957): 279–295.
Honorary reprint, Emory Law Journal 50, no. 2 (2001): 563–582.
Epp, Charles. The Rights Revolution: Rights and Community in Modern America. New York: Oxford University Press, 1998.
Epstein, Lee, and Jack Knight. The Choices Justices Make. Washington, D.C.: CQ Press, 1998.
Ginsburg, Tom. Judicial Review in New Democracies: Constitutional Courts in Asian Cases. New York: Cambridge University Press, 2003.
Graber, Mark A. “The Non-majoritarian Difficulty: Legislative Deference to the Judiciary.” Studies in American Political Development 7, no. 2 (1993): 35–72.
Hansford, Thomas G., and James F. Spriggs II. The Politics of Precedent on the U.S. Supreme Court. Princeton, N.J.: Princeton University Press, 2006.
Hirschl, Ran. Toward Juristocracy:The Origins and Consequences of the New
Cambridge, Mass.: Harvard University Press, 2004.
Keck,Tom. The Most Activist Supreme Court in History: The Road to Modern Judicial Activism. Chicago: University of Chicago Press, 2004.
Lax, Jeffrey R. “Constructing Legal Rules on Appellate Courts.” American Political Science Review 101, no. 3 (2007): 591–604.
Maltzman, Forrest, James F. Spriggs II, and Paul J.Wahlbeck. Crafting Law on the Supreme Court. New York: Cambridge University Press, 2000.
Pickerill, J. Mitchell, and Cornell W. Clayton. “The Rehnquist Court and the Political Dynamics of Federalism.” Perspectives on Politics 2, no. 2 (2004): 233–248.
Ramsayer, J. Mark, and Eric Rasmussen. “Why Are Japanese Judges So Conservative in Politically Charged Cases?” American Political Science Review 95, no. 2 (2001): 331–344.
Rosenberg, Gerald N. The Hollow Hope: Can Courts Bring About Social Change? Chicago: University of Chicago Press, 1993.
Segal, Jeffrey A., and Harold J. Spaeth. The Supreme Court and the Attitudinal Model. New York: Cambridge University Press, 1993.
Shapiro, Martin. Law and Politics in the Supreme Court. New York: Free Press, 1964.
Smith, Rogers. “Political Jurisprudence, the ‘New Institutionalism,’ and the Future of Public Law.” American Political Science Review 82, no. 1 (1988): 89–108.
Whittington, Keith. Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History. Princeton, N.J.: Princeton University Press, 2007.
Zweigert, Konrad, and Hein Krotz. An Introduction to Comparative Law. Translated by Tony Weir. 3rd ed. New York: Oxford University Press, 1998.

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