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9. Courts and Law: Politics behind the Gavel, Obviously, but What’s under the Gown?. Law and Politics. We defined politics as goal-directed actions of individuals, governments, and groups, with public consequences. Clearly, the law and courts are political institutions.

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law and politics
Law and Politics
  • We defined politics as goal-directed actions of individuals, governments, and groups, with public consequences.
  • Clearly, the law and courts are political institutions.
  • We should expect political parties to use courts for their policy goals and 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 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 on the books versus law in action
Law on the Books versus Law in Action
  • Legal scholar Roscoe Pound (1870–1964) recognized that there is a fundamental difference between law in books and law in action.
  • Law on the books is the laws as they are written.
  • Law in action relates to how laws are enforced in the real world.
  • Since law depends on political actors for enforcement, we should expect that laws will be political.
  • Political scientists are interested not only in what the laws say but also in how they are put into practice.
  • In other words, political scientists treat legal actors like other political actors.
symbols
Symbols
  • Courts use a variety of symbols to increase their authority and to encourage people to believe that something other than politics is happening. Examples of courtroom symbols:
  • The judge’s robes
  • The gavel
  • The raised platform for the judge’s bench
  • The Bible
  • Flags and ornate government seals
the functions of courts
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, courts play three principal roles in society:
    • Courts engage in dispute resolution.
    • Courts make policy.
    • Courts can play an important role in monitoring governmental actions.
dispute resolution
Dispute Resolution
  • Perhaps the most important role of the courts is the settling of disputes in a peaceable fashion.
  • Courts accomplish this through formal proceedings.
  • Courts provide an avenue through which citizens can settle their disputes in an orderly, organized, and authoritative fashion.
dispute resolution1
Dispute Resolution
  • Courts also settle disputes in informal ways.
  • For example, when sentencing criminals, negotiating plea bargains, and awarding damages, courts set what might be called the “going rate” for punishment and penalties.
  • Once courts reach decisions, those decisions shape the actions of potential future litigants.
policymaking
Policymaking
  • Judges set local criminal policy through sentencing and bail decisions, their willingness to accept plea bargains, and their propensity to issue warrants based on one type of evidence or another.
  • Policymaking also occurs when courts are involved in statutory interpretation.
  • The application of the law requires specificity, so courts must interpret what statutes mean precisely—this, in effect, is making policy.
monitoring government
Monitoring Government
  • Courts monitor the actions of the government and governmental officials to make sure they follow prescribed rules and procedures.
  • Courts have injunctive power to stop the actions of government either temporarily or permanently.
  • Courts also monitor government actions by prosecuting corrupt or otherwise criminal governmental officials.
  • This can have profound effects on the legitimacy of the government.
monitoring government1
Monitoring Government
  • In some nations, courts exercise the power of judicial review in declaring laws and government acts to be in violation of the nations’ constitutions.
  • This can 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 and Appellate Courts
  • Trial courts exercise what is called original jurisdiction.
  • This 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 and appellate courts1
Trial Courts and Appellate Courts
  • Appellate courts exercise appellate jurisdiction, which means that they review the records from trial courts.
  • Appellate review is limited to matters of law and process only.
  • An appellate court cannot rule on the facts in a 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
Legal Systems
  • All judicial functions are shaped by the legal systems of the countries or jurisdictions in which they take place.
  • The law is not just the law; it is a social construction.
  • Three kinds of legal systems 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
  • The civil law system is based on the proposition that law is a codified entity constructed by a legislature.
  • Because this system relies on written law, it tends to be more specific, more easily understandable, and easier to apply to particular cases than other systems.
the civil law system1
The Civil Law System
  • Civil law systems utilize an inquisitorial system.
  • This is a prolonged pretrial investigative process in which all courtroom participants participate, with the goal of protecting the innocent.
  • This system is common in continental Europe.
common law
Common Law
  • In this system, which evolved in England, judges base their decisions on custom and precedents—that is, past judicial decisions.
  • The doctrine of stare decisis—Latin for “let the decision stand”—is very important.
  • The law developed essentially as judge-made law.
common law1
Common Law
  • As time went by, other types of law, such as 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 civil law is a bit simplistic; there are places (e.g., the United States) that mix elements of both.
religious law
Religious Law
  • Religious law is most common in Islamic countries, where it is based on sharia, or Islamic law.
  • Unlike civil and common law systems, sharia is comprehensive in that it governs every aspect of religious and secular life.
  • Sharia is based primarily on rules from the Koran.
  • For Muslims 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 have mixed systems.
jurisprudence
Jurisprudence
  • Jurisprudence is a philosophy of law.
  • There is a wide array of types of jurisprudence.
  • According to judicial scholar Henry Stumpf, three main schools of jurisprudence have vied for dominance in the United States:
    • Natural law
    • Positivist jurisprudence
    • Sociological-realist jurisprudence
natural law
Natural Law
  • Natural law presumes that there is some higher law that is discoverable by the use of reason.
  • The presumption of a natural sense of justice is important in the United States.
  • Natural law raises many empirical concerns:
    • People are rational, but they can do irrational things.
    • What seems rational at one time may seem perfectly ridiculous at another.
    • Two seemingly rational people can reach very different conclusions.
    • How do you prove that something is a part of natural law?
positivist jurisprudence
Positivist Jurisprudence
  • Law is simply the command of the recognized sovereign authority of the state.
  • Under this theory, judges apply the law of the state to the particular facts using logic.
  • It is very important for judges to be well versed in case law and relevant precedents so that they can reach the logically correct decisions.
  • There is one right decision that can be found through strict adherence to the procedures and processes of the courts.
realist jurisprudence
Realist Jurisprudence
  • Realist jurisprudence begins with a sociological critique of the law.
  • The law is viewed in terms of the behavior of the legal actors (police, judges, prosecutors, attorneys, juries, and so on).
  • Legal actors have a tremendous amount of discretion in making decisions.
  • These decisions reflect the motives and logic of the legal actors.
private law versus public law
Private Law versus Public Law
  • Private law is concerned with relations among private individuals and organizations.
    • Government sets the rules and context.
  • Public law is concerned with the government and its relations with individuals and organizations.
    • For example, criminal law, constitutional law, taxing policies, environmental regulations.
private law versus public law1
Private Law versus Public Law
  • The distinction can be problematic.
  • The courts are part of government.
  • Private law can be constitutionally challenged.
  • Private law can have very public consequences.
criminal law versus civil law
Criminal Law versus Civil Law
  • Criminal law concerns specific crimes and provides punishments for offenses.
  • Criminal cases are matters of public law.
  • Victims are not parties to the suits in criminal cases.
  • The government may proceed with a criminal case with or without the victim’s consent.
  • Criminal defendants are innocent until proven guilty beyond a reasonable doubt.
  • Courts do not determine innocence in criminal cases; they only find whether or not defendants are legally guilty.
criminal law versus civil law1
Criminal Law versus Civil Law
  • Civil law is law that governs relations between private parties.
  • In a civil suit the plaintiff will prevail if he or she can demonstrate that the defendant is liable by a preponderance of the evidence.
federal law versus state law
Federal Law versus State Law
  • Federal law comprises the law in the Constitution, treaties made under the Constitution, and congressional statutes passed 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 health, safety, and morality.
  • The U.S. Supreme Court can hear only cases that involve some aspect of federal law.
international law
International Law
  • International law does not exist in the same sense that there is law within countries.
  • International law concerns the conventions and agreements that govern behavior between nations.
  • In reality, international law exists only 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 law globally.
constitutional courts
Constitutional Courts
  • One function of courts is to monitor government action.
  • One way courts do this is through judicial review.
  • This is the ability to declare laws to be unconstitutional.
  • In Marbury v. Madison (1803), Chief Justice Marshall made the argument that since any law that is contrary to the Constitution is void, and since judges take an oath to obey the Constitution, they can hold that a law violating the Constitution is void.
constitutional courts1
Constitutional Courts
  • The principal argument around judicial review concerns what materials the justices should use when interpreting the Constitution.
  • Some argue for the idea of originalintent—that the Constitution should mean only what its Framers meant when they authored it.
    • This is a natural law/positivist perspective.
  • Others argue that the Constitution is a living document that must be interpreted to reflect modern values and conditions.
    • This is a legal realist perspective.
constitutional courts2
Constitutional Courts
  • By subjecting the nations’ laws to constitutional scrutiny, constitutional courts confer legitimacy on the government’s actions.
  • Many countries have adopted constitutional courts.
  • Great Britain has not.
  • In England there is legislative supremacy—that is, there can be no higher authority on the law than the Parliament.