Judiciary





The judiciary is a branch of government, consisting of justices, judges and
magsitrates among other types of adjudicators. The primary function of the
judiciary is to adjudicate legal disputes. The judiciary is also responsible
for interpreting the law, but while in some legal systems this is a
fundamental principle (e.g. common law jurisdictions), in others the primary
responsibility for interpreting the law belongs not to the judiciary but to
the legislature — traditionally, civil law and socialist law
jurisdictions — although even in them, the judiciary inevitably must
play some interpretive role, since interpretation of the law is an
inseparable part of adjudicating legal disputes. This difference can be seen
by comparing the United States and China — in the United States, the
Supreme Court is the final authority on the interpretation of the law; in
China, the final authority on the interpretation of the law is the National
People's Congress.

The idea found in civil law and socialist law that the judiciary does not
interpret the law 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 certainly 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. 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. In civil law
jurisdictions the role of interpretation has taken a much more conservative
approach and 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.

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).