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Encyclopedia > Judicial branch

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 Justice is a concept involving the fair, moral, and impartial treatment of all persons, especially in law. ... A judge or justice is an appointed or elected official who presides over a court. ... A magistrate is a judicial officer with limited authority to administer and enforce the law. ... Dispute resolution is the process of resolving disputes between parties and includes lawsuits (litigation), arbitration, mediation, conciliation, and many types of negotiation. ... Separation of powers is the idea that the powers of a sovereign government should be split between two or more strongly independent entities, preventing any one person or group from gaining too much power. ... A government is an organization that has the power to make and enforce laws for a certain territory. ... Law (a loanword from Danish- Norwegian lov), in politics and jurisprudence, is a set of rules or norms of conduct which mandate, proscribe or permit specified relationships among people and organizations, provide methods for ensuring the impartial treatment of such people, and provide punishments for those who do not follow...

  • 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: This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ... Case law - Wikipedia /**/ @import /skins/monobook/IE50Fixes. ... Civil law is a legal system derived from Roman law and commonly used in Europe. ... Jurisprudence (from Latin: juris prudentia — by the activity of prudentes; advisors, experts), is the philosophy, science, study, and application of law. ... Socialist law is the official name of the legal system used in Communist states. ... Chamber of the Estates-General, the Dutch legislature. ... The Peoples Republic of China (PRC) comprises most of the cultural, historic, and geographic area known as China. ...

The U.S. Constitution, adopted in 1789 by a constitutional convention, sets down the basic framework of American government in its seven articles. ... The Supreme Court Building, Washington, D.C. The Supreme Court of the United States, located in Washington, D.C., is the highest court (see supreme court) in the United States; that is, it has ultimate judicial authority within the United States to interpret and decide questions of federal law, including... In France, the Conseil dÉtat ( English: Council of State and sometimes Counsel of State) is an organ of the French national government. ... The Cour de cassation is the main court of last resort in France. ... The Great Hall of the People, where the NPC convenes The National Peoples Congress (全国人民代表大会 in Pinyin: Quánguó Rénmín Dàibiǎo Dàhuì, literally Pan-Nation Congress of the Peoples Representatives), abbreviated PNCOTPR, is the highest legislative body in the Peoples 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. Roman law is the legal system of both the Roman Republic and the Roman Empire, from its earliest days to the time of the Eastern Roman Empire, even to the time of the Emperor Justinian I after the fall of Rome itself. ... Justinian may refer to: Justinian I, a Roman Emperor; Justinian, a storeship sent to the convict settlement at New South Wales in 1790. ... The Corpus Juris Civilis (Body of Civil Law) is a fundamental work in jurisprudence issued from 529 to 534 by order of Justinian I, Byzantine Emperor. ... A jurist is a professional who studies, develops, applies or otherwise deals with the law. ... Alternative meaning: Nineteenth Century (periodical) (18th century — 19th century — 20th century — more centuries) As a means of recording the passage of time, the 19th century was that century which lasted from 1801-1900 in the sense of the Gregorian calendar. ... The original Napoleonic Code, or Code Napoléon (originally called the Code civil des francais, or civil code of the French), was the French civil code, established at the behest of Napoléon. ... Parlements (pronounced in French) in ancien régime France — contrary to what their name would suggest to the modern reader — were not democratic or political institutions, but law courts . ...


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. The Cour de cassation is the main court of last resort in France. ... In France, the Conseil dÉtat ( English: Council of State and sometimes Counsel of State) is an organ of the French national government. ... Case law - Wikipedia /**/ @import /skins/monobook/IE50Fixes. ...


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. A legislator is a person who writes and passes laws, especially someone who is a member of a legislature. ...


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). Communism is a term that can refer to one of several things: a social and economic system, an ideology which supports that system, or a political movement that wishes to implement that system. ...


See also


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