The judiciary, also referred to as the judicature, consists of justices, judges and magistrates among other types of adjudicators. Under the doctrine of the separation of powers, it is one of the three branches of government. The primary function of the judiciary is to adjudicate legal disputes. The judiciary is also responsible for interpreting the law in some
legal systems; in
Common law jurisdictions, this is a fundamental principle; case law is created by the courts' interpretations;
civil law jurisdictions, courts interpret the law, but are, at least in theory, prohibited from creating law, and thus, still in theory, do not issue rulings more general than the actual case to be judged; in practice, jurisprudence plays the same role as case law;
'Socialist' law, the primary responsibility for interpreting the law belongs not to the judiciary but to the legislature.
This difference can be seen by comparing the United States, France and the People's Republic of China:
Differences between civil, socialist and common law
The idea found in civil and socialist law that the judiciary does not interpret the law in creative ways has its origins in both in Roman law times. It is said that Justinian had the Corpus Juris Civilis compliled and all other decisions by jurists burned to create certainty in the law. Again in the 19th century French some legal scholars at the time of the development of the Code Napoleon advocated the same kind of approach — it was believed that since the law was being written down precisely, it should not need interpretation; and if it did need interpretation, it could be referred to those who wrote the code. Napoleon, who was an advocate of this approach felt that the task of interpreting the law should be left with the elected legislature, not with unelected judges. This contrasted with the pre-revolutionary situation in France, where unelected parlements defending the interests of the high bourgeoisie would often slow the enforcement of royal decisions, including much needed reforms.
However, in practice, this idea was found difficult and judges in France and other countries that Napoleon had conquered or where there was a reception of the Civil Code approach judges once again took on an important role like their English counterparts. At present in civil law jurisdictions in practice judges interpret the law to about the same extent as in common law jurisdictions – though it may be acknowledged in theory in a different manner than in the common law tradition which actually saw judges making the law. For instance, in France, the jurisprudence constante of the Cour de cassation or the Conseil d'État is equivalent in practice with case law.
In theory, in the French civil law tradition, a judge does not make new law; he or she merely interprets the intents of "the Legislator". The role of interpretation is traditionally approached more conservatively in civil law jurisdictions than in common law jurisdictions. When the law fails to deal with a situation, doctrinal writers and not judges call for legislative reform, though these legal scholars sometimes influence judicial decision making. Civil law judges also refer to the interpretation of codal provisions and they look for an underlying rationale not only in the particular text, but its relationship to the whole structure of the code as an organizing structure that reflects order in a civil society.
Socialist law adopted the position of civil law, but added to it a new line of thought derived from Communism — the interpretation of the law is ultimately political, and should serve the purposes of Communism, and hence should not be left to a non-political organ (even though in practice, the judiciary was not much of a non-political organ).
Last updated: 07-29-2005 23:54:35
Last updated: 09-03-2005 18:37:12