9 Courts & Law: Politics behind the Gavel

9Courts & Law: Politics behind the Gavel

Law and Politics • Law and courts are political institutions, and the legal system is but a subsystem of the larger political system. • We should expect that political parties to use courts for their policy goals, individuals to use the legal system to make their political careers, that those with resources will fare better than those without resources, and that many of the rules that apply to the other political institutions will also apply to the courts. • Nevertheless, there still tends to be a tugging feeling that law and politics ought to be separate and distinct.

Law in Books versus Law in Action • Legal scholar Roscoe Pound (1870–1964) recognized argued that there is a fundamental difference between law in books and law in action. • The law on the books is comprised of the laws as they are written, while law in action relates to how laws are enforced in the real world. • Law on the books is the world of appellate courts, while law in action involves law as trial courts and other legal actors implement it in the real world. • Since law depends upon political actors for enforcement, we should expect that laws will be political. • To truly understand the way that the laws operate and to really know how courts act, we must study the law as it is enforced and how judicial officers behave. • Political scientists are interested not only in what the laws say, but how they are put into practice. • In other words, political scientists treat legal actors like other political actors.

Symbols • Courts use a variety of symbols and other tools to increase their authority and to encourage people to believe that something other than politics is happening, for example: • the judge's robes • the gavel • ornate courtrooms • the raised platform • the Bible • the flags and the ornate government seals

Symbols • Symbols are more than mere ornamentation; political actors utilize symbols them because people react to them. • The symbols help create and sustain the perception that judges are different from politicians. • People’s beliefs that the courts are different allow political participants to operate with a legitimacy and a solemnity that is not found in other political arenas. • If we stripped away these symbols it would become clearer that the law really is like other political institutions. • Words are symbols are perhaps the most powerful symbols used in the courts; there is a language of the law.

The Functions of Courts • Courts play the essential role of enforcing the norms of society. • Regardless of the type of government, courts enforce the country’s basic rules. • According to judicial scholars Walter F. Murphy, C. Herman Pritchett and Lee Epstein, there are three principal roles that courts play in society. • Courts engage in dispute resolution. • Courts make policy. • Courts can play an important role in monitoring governmental action.

Dispute Resolution • Perhaps the most important role that courts play is that they work to settle disputes in a peaceably. • Courts accomplish this through formal proceedings. • Courts provide an avenue for citizens to settle their disputes in an orderly, organized, and authoritative fashion. • Courts also settle disputes in informal ways as well. • For example, by sentencing those convicted of crimes, judges also help to set what might be called the “going rate” for punishment. • Judges set the context for plea bargaining as defense attorneys and prosecutors negotiate about what the appropriate penalty should be for an offense for which a plaintiff pleads guilty. • A similar process takes place where people are suing. • Past decisions set the context for future relations between plaintiffs (those doing the suing) and defendants (those getting sued).

Policymaking • Courts act the most like other political institutions when they make policy. • Officially, courts are not supposed to engage in policymaking. • Courts are only supposed to resolve the disputes others have over policy. • However, whether the issue is the death penalty, abortion, sexual harassment, or any of the hundreds of other topics in which courts become involved, it is clear that in making those decisions, the courts make policy.

Policymaking • Judges set local criminal policy through sentencing decisions, bail decisions, their willingness to accept plea bargains, or their propensity to issue warrants based upon one type of evidence or another. • Policymaking also occurs when courts are involved in statutory interpretation. • Even if one were to accept the proposition that courts merely apply the law, by defining how those laws can and cannot be interpreted, courts set policy. • Legislatures often pass laws that are vaguely written and thus open to a wide range of interpretations. • Courts are then confronted with the question of whether the law was meant to apply to specific situations and/or specific litigants. • The application of the law requires specificity, so courts must interpret what the statute precisely means, that is they engage in statutory interpretation but as soon as the courts start interpreting the law, they are, in effect, making policy. • Even well-written laws can be open to this kind of judicial policymaking.. • Still, even if a legislative body passes a specific and clearly worded law, the courts can still become involved in policy through their interpretation of it.

Monitoring Government • Courts monitor the actions of the government and governmental officials to make sure they follow prescribed rules and procedures. • One important tool that courts generally have at their disposal is the injunctive power. • Courts have the power to stop the actions of government by issuing injunctions. • Temporary or interim injunctions put a hold on policies until they can be examined at trial, and if a judge finds that the governmental action clearly violates established principles, he can enjoin the action permanently.

Monitoring Government • Courts also monitoring government action by prosecuting corrupt or otherwise criminal governmental officials. • By trying a governmental official according to the same rules and procedures as everyday citizens, the courts play a role in sending out the message that nobody is above the law. • This can have profound effects on the legitimacy of the government. • In some nations, the courts exercise a power called judicial review, which is the power to declare laws and government acts to be in violation of the nation's constitution or in some other way illegal under the structure of the country. • Courts also play a role in determining whether governmental officials are acting within their prescribed authority. • Judicial review is also at work when the courts strike down laws because they violate the constitutional rights of groups or individuals.

Trial Courts and Appellate Courts • Trial courts are the courts that exercise what is called original jurisdiction, which means that they are the first courts to hear a case. • Trial courts are the first line of action and where the vast majority of judicial activity occurs. • Trial courts are responsible for keeping a record of the proceedings and for establishing the facts in the case. • The finder of fact in the trial court is either the judge or the jury, which means that it is up to the judge or jury to determine the veracity of the witnesses, to assess the facts presented, and determine a winner.

Trial Courts and Appellate Courts • Appellate courts exercise appellate jurisdiction, which means that they review the record from trial courts. • However, appellate judges cannot simply disagree with the factual conclusions in the case. • Appellate review is limited to matters of law and process only. • They cannot rule on the facts in the case. • Some countries provide for an appeal of an appeal. • In the United States this occurs at the level of the Supreme Court.

Legal Systems • All judicial functions are shaped by the legal system used by that country or jurisdiction. • The law is not just the law; it is a social construction. • There are three legal systems that are commonly used. • the civil law or code law system • the common law system • the religious law system

The Civil Law System • The civil law system begins with the proposition that law is a codified entity constructed by a legislature. • The process of compiling and writing down the law is a major component of the civil law system. • Because the civil law system relies on written law, it tends to be more specific, more easily understandable, and easier to apply to particular cases. • Civil law systems utilize an inquisitorial system, which entails a rather prolonged pretrial investigative process. • The goal of this pretrial process is to try to protect the innocent. • In civil law systems all the courtroom participants participate in the investigation process.

Common Law • As the common law system evolved in England, judges based their decisions on custom and precedents, i.e., past judicial decisions. • This explains the importance of the doctrine of stare decisis—Latin for “let the decision stand”—for common law systems, and why judges are still reluctant to contradict earlier rulings. • Common law developed as judge-made law. • As time went by, other types of law, like equity and statutory law, supplemented the judges' common law. • One of the main components of the common law system is the adversarial process. • The distinction between common law and the civil law systems is a bit simplistic; there are places that mix the elements of both.

Religious Law • Religious law is most common in Islamic countries, where it is based on Sharia or Islamic law. • Unlike law in civil and common law systems, Sharia is comprehensive in that it governs every aspect of religious and secular life. • Sharia is primarily based on rules from the Koran as well as other legal sources. It is the qadi's responsibility to resolve disputes by finding the law. • For those with intense religious convictions, it is obligatory to follow Sharia, even if it is not acknowledged by the state. • While some nations’ justice systems are based entirely on Sharia, most countries are mixed systems.

Jurisprudence • A jurisprudence is a philosophy of law. • There is a wide array of types of jurisprudence. • According to judicial scholar Henry Stumpf, there have been three main schools of jurisprudence that have vied for dominance in the United States: • natural law • positivist jurisprudence • sociological-realist jurisprudence. • There are many more concepts of law throughout the world and in different cultures. • There are even splits within these categories.

Natural Law • Natural law presumes that there is some higher law, which originates with God or nature, and that this higher law is discoverable by the use of reason. • There is a presumption that there is a certain justice that everyone should simply know. • The natural law tradition has always played an important role in the United States. • From an empirical perspective, natural law raises many concerns: • Some people act rationally; others doing some very irrational things. • What seems rational at one time may seem perfectly ridiculous at another. • Two seemingly rational people can reach very different conclusions on a host of things. • How do you prove that something is a part of natural law? • The natural law tradition has been seriously scrutinized by those seeking more scientific responses.

Positivist Jurisprudence • The positivist school of jurisprudence holds that law is simply the command of the recognized sovereign authority of the state. • Positivists believe law can be studied as a body of principles that originated with the state and then took on its own logic and rationality. • Law could be studied using formal logic. • Under this theory, judges apply the law of the state to the particular facts using logic. • In other words, judges merely discover the law as it has been documented by the legislature or through precedent. • It is very important for judges to be versed in the law and in prior precedents so that they can reach the logically correct decisions.

Realist Jurisprudence • Legal realists believe law is comprised of a set of rules intended to meet the needs of society. • They reject the natural law and positivist traditions, and argue that judges exercise discretion and that they should use their discretion with an understanding society’s needs. • Judges should make use of the social sciences to understand society’s needs.. • Legal realists argued for legal reform in the early and middle twentieth century. • They study law in terms of the behavior of and the discretion used by legal officials, e.g., judges, police, juries, prosecutors, etc., rather than as a body of legal rules. • Some legal realists even argue that precedents are myths, and that judges use legal precedent to justify their own opinions.

Realist Jurisprudence • The discipline of political science has always had a special relationship with the law. • Political science departments traditionally have classes, like constitutional law or civil liberties, that study the law, at least partially, from a natural law/positivist perspective. • However, political scientists have increasingly moved closer to the realist school, and they now treat the legal system as part of the larger overall political system. • There has been an increased focus on judicial behavior, on the relationships between the judge, the prosecutor, and the defense attorney in criminal cases, and the relationship between political actors inside and outside of the legal system.

Private Law versus Public Law • One of the most common distinctions made in the law is between private law and public law. • On its face, the distinction is not all that complicated. • Civil law is concerned with the relations among private individuals and private organizations. In other words government is not involved except in setting the rules and context of interaction. • Public law concerns relationships involving the government and its relationship with individuals and organizations. • Criminal law, laws that enable bureaucratic agencies to regulate industries, constitutional laws, taxing policies, and environmental regulations are all forms of public law. • The distinction between private law and public law is sometimes problematic because the courts are part of the government. • Further, private law can have very public consequences.

Criminal Law vs. Civil Law • Criminal law concerns specific crimes and that provides punishments for offenses. • Criminal cases are matters of public law in that they directly involve the government. The parties in the dispute are always the level of government where the crime has been defined and the defendant. • Victims are not parties to the suit; the government may proceed with a criminal case with or without the victim's consent. • Serious offenses, for example, murder, rape, kidnapping, and arson are felonies. • Felonies usually carry a punishment of at least one year in prison. • Less serious crimes are misdemeanors, which are usually punishable by less than one year in prison

Criminal Law vs. Civil Law • In a criminal case, defendants are considered innocent until proven guilty, and to achieve a conviction, the prosecution must prove that the defendant is guilty beyond a reasonable doubt. • In a criminal case, the judge or jury will find the defendant to be guilty or not guilty (or unproven). • Civil law refers to the law that governs relations between private parties, although the government can be a party in a civil suit. • In a civil suit the plaintiff will prevail if she can demonstrate that the defendant is liable by a preponderance of the evidence.

Federal Law versus State Law • In the United States there is an important distinction between federal law, which is the law of the national government, and state law, which is the law of the states and their localities. • There is a dual system of courts, where there is both the national court system and a state court system are present in every state. • Federal law is comprised of the law in the Constitution, treaties made under the Constitution and congressional statutes possessed under the authority of the Constitution. • All other law is a matter of state law. • Thus, states are responsible for the vast amount of law that regulates people’s heath, safety, and morality. • State courts deal with the vast majority of cases that are filed in the United States. • Most law in the United States is state law, and the vast majority of legal cases are adjudicated in state courts.

International Law • International law does not exist in the same sense that there is law within a country. • International law refers to conventions and agreements that govern behavior between nations. • In reality, international law only exists to the point that there is a country or a coalition of countries with the power and the will to enforce a rule or norm of behavior. • There is no effective world government with the power to create and enforce a law globally.

Constitutional Courts • One function of courts is to monitor government action. • One way courts do this is through judicial review. • Although the concept of judicial review originated in the United States, the U.S. constitution says nothing about it. • In Marbury v. Madison (1803), Chief Justice Marshall made the argument that since any law that was contrary to the Constitution was void and since judges took an oath to obey the Constitution, they could hold that a law violating the Constitution was void. • While there are many arguments surrounding the Court’s use of judicial review, the principal argument concerns what materials the justices should use when interpreting the Constitution.

Constitutional Courts • Some legal scholars, judges, and political commentators argue for the idea of original intent—that the Constitution should only mean what its framers and the authors of its amendments meant when they authored its provisions. • Those who oppose limiting judicial review to original intent maintain that it is more appropriate to view the Constitution as a living document, a constitution of ideas that must be interpreted to reflect modern values and conditions. T • Constitutional review serves important purposes for the state. • Judicial review can ensure that the government works properly and according to the prescribed rules in the Constitution.

Constitutional Courts • Other countries have recognized the value of constitutional courts that exercise judicial review, e.g.,Austria, Ireland, Japan, and India. • Even countries that use the civil law system have found the benefit of constitutional courts. • Germany, Italy, Belgium, Portugal, and Spain, for example, each have a constitutional court, although these courts function differently than the U.S. Supreme Court. • Civil law constitutional courts do not hear an entire case. • If a lower court finds that a case raises a constitutional question, that question is sent to the constitutional court for review for an opinion on the narrow constitutional issue. • The European Union’s (EU) European Court of Justice has the authority to review the laws of the EU’s member countries to make sure they comport with the European Community.

9 Courts & Law: Politics behind the Gavel