Kriszta Kovács

INTRODUCTION TO

THE JUDICIAL POWER CONSTITUTIONALISM

IRB108
2022/2023 SPRING TERM
 WHO ARE THE JUDGES?
❖ THEPERSONIFICATION OF THE LAW:
THEY RESOLVE LEGAL DISPUTES,
PUNISH OFFENDERS, DETERMINE
GUILT (WHERE THERE IS NO JURY)
❖ THEY CAN BE APPOINTED (UK),
RECRUITED (EUROPE), ELECTED (IN
21 US STATES) OR SELECTED (SOUTH
AFRICA, ISRAEL)
 THE ROLE OF JUDGES
❖ THE ‘SOCIAL SERVICE’ THAT THEY RENDER TO
THE COMMUNITY IS ‘THE REMOVAL OF A
SENSE OF INJUSTICE’ (LORD DEVLIN)
❖ WHAT IS THE ACT OF ‘JUDGING’?
❖ POSITIVIST MODEL: LAW IS A SYSTEM OF
RULES, JUDGES APPLY THESE RULES, WHEN
THERE IS NO RULE - DISCRETION
❖ RONALD DWORKIN: RULES + ‘NON-RULE
STANDARDS’: PRINCIPLES AND POLICIES
(E.G., RIGGS V PALMER CASE)
 WHAT IS A COURT?
❖ FORUMS THAT AUTHORITATIVELY RESOLVE LEGAL DISPUTES
❖ COURTS MAY ERR: THE RIGHT OF APPEAL, WHICH REQUIRES A
HIERARCHY (LOWER, TRIAL, FIRST INSTANCE V HIGHER, APPELLATE,
SECOND INSTANCE COURTS)
❖ COURTS FOLLOW PROCEDURES
❖ IN CRIMINAL TRIALS: COMMON LAW SYSTEM ‘ADVERSARIAL’,
CIVIL LAW SYSTEM ‘ACCUSATORIAL’
❖ IN CIVIL TRIALS: IN CIVIL LAW SYSTEM JUDGES PRESIDE OVER
ORDINARY COURTS AND APPLY THE CODES, IN COMMON LAW
PRECEDENT SYSTEM
 WHEN IS A COURT INDEPENDENT?
❖ IF COURTS ARE FREE FROM
❖ GOVERNMENT PRESSURE (INCLUDING THE THREATS OF
BUDGET CUTS TO COURTS)
❖ MEDIA INFLUENCE
❖ IF JUDGES CAN
❖ STEER CLEAR OF ALL SORTS OF OUTSIDE INFLUENCES
❖ PUT ASIDE INDIVIDUAL FACTORS LIKE BIASES, CURRENT
STATES OF MIND AND PERSONAL AGENDA BEFORE MAKING
THEIR DECISIONS
 JUDICIAL REVIEW
❖ 1. THE POWER TO REVIEW ACTS OF GOVERNMENT (DECISIONS
BY MINISTERS, PUBLIC OFFICIALS) E.G., A DECISION TO GIVE
PLANNING PERMISSION FOR A NEW ROAD
❖ 2. THE POWER TO DECLARE STATUTES INVALID/VOID IF THEY
ARE AGAINST THE CONSTITUTION (MARBURY V MADISON CASE)
❖ STRONG JUDICIAL REVIEW: US, INDIA, SOUTH-AFRICA
❖ WEAKER FORMS OF JUDICIAL REVIEW: UK, NEW ZEALAND,
CANADA
❖ CRITICISM OF JUDICIAL REVIEW
 Concluding remarks
❖ COURT DECISIONS ARE AUTHORITATIVE
❖ IMPARTIAL JUDGES: JUDGES MUST LISTEN TO ALL SIDES OF THE
QUESTION
❖ INDEPENDENT JUDICIARY: THE JUDICIAL BRANCH SHOULD BE
INDEPENDENT OF THE TWO OTHER BRANCHES
❖ IF IT IS TAKEN SERIOUSLY,
❖ THE EXECUTIVE AND THE LEGISLATURE DO NOT INTERFERE IN
THE APPOINTMENT PROCEDURE AND THE ACT OF JUDGING
❖ JUDGES CANNOT BE DISMISSED ONLY FOR CORRUPTION OR
INCOMPETENCE