Transcript A Novel Approach to Politics

9
Courts & 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:
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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
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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.