A lot of magistrates go beyond the constitution and statutes words and use their own political and personal thoughts. Judicial Restraint is the complete opposite of Judicial Activism. The judges should not introduce or instill their own personal or political beliefs into the law. The power and decision of the judges on a verdict should be strictly follow the law and US Constitution. 2.
It is through laws that policies of government are laid down for implementation. It does however have many constitutional roles to fulfil such as the power of the purse, oversight, foreign policy and legislation. It can be argues that Congress does fulfil its constitutional roles as it may deliver effective over sighting, legislation, money bills, representation and foreign policy that may provide good checks and balances. However, most would argue that Congress may not carry its roles effectively thus leading to poor scrutiny (sometimes over scrutinising) which leads to ineffective fulfilment of constitutional roles. The principle organ of the US state is to legislate, represent and scrutinise the other, safely separated, branches of the government.
Theresa May and the Conservative-led government tried to bring in legislation and executive acts, but the judiciary protected Abu Qatada and his human rights, until his human rights would have been satisfied (Jordan agreed not to torture or mistreat him). However, regarding this issue, if government are incredibly keen on getting an issue through without the judiciary being able to intervene, they are able to bring in legislation to fulfil their wishes and bypass the judiciary. Following on from that point, the judiciary can prevent the unfair treatment of citizens through judicial review. This is the process through which cases between the government and individuals are reviewed on the basis of how lawful they are. By reviewing cases of dubious outcome, they can protect the rights of the individual rather than letting the government figuratively, walk all over them.
Sample multiple-choice questions for the English Legal System module for LLB open learning 1. Which of the statements below most accurately reflects the constitutional position between the legislature and the judiciary: a) Parliament encourages the judiciary to make law through the process of statutory interpretation because it does not have enough parliamentary time to enact laws itself. b) Parliament is the supreme lawmaking body and the role of the judiciary is to interpret and apply law made by Parliament. c) The judiciary considers itself a primary lawmaking body equal to Parliament. d) It is the role of the judiciary, when interpreting statutes, to fill in the gaps in the statutes.
In the civil system of courts the parties are also adverse to each other, however instead of arguing against each other, each party provides the evidence to the judge whom will then ask the questions and from there may decide the outcome of the case. These processes are known as inquisitorial due to the nature of the ‘inquisition’ by the judge. Controversy has arisen as to which system of trial provides society with the favoured ‘justice.’ It has been argued that the adversary system is favoured over the inquisitorial system as the personal biases of a judge in the conduct of a case are less obvious. Many people claim that such a system does not achieve justice, as juries, in particular, can be convinced by the quality of the barristers’ legal arguments, rather than actual evidence. Alternatively, the inquisitorial system may be said to provide better justice in that a judge has a broader range of possibilities to ask wider and deeper questions, and can therefore gather information that the parties did not intend to expose.
Judicial review is the right, or duty, the court has to review the constitutionality of legislation and/or actions taken by the executive branch. The court has the right to choose its cases, but these are brought before them not sought after by the court. What is the separation of powers? This is a form of checks and balances between the executive, legislative, and judicial branches of government. They are in place so as to contain the power of any one branch attempting to overstep its authority and act in a tyrannical matter.
Judicial Creativity Under the theory of separation of power, Parliament makes UK law while the role of judges is to apply the law to the cases. However, in reality, do judges make/develop the law? Like Lord Radcliffe said in 1968 “there was never a more sterile controversy than upon the question whether a judge makes law. Of course, he does. How can he help it?” Judges in the UK do develop the law through both the operation of the doctrine of judicial precedent and statutory interpretation.
They are then implemented by the executive and enforced by the courts. Statute Law is the most important source of the principles and rules making up the British constitution because parliament is the sovereign body. An example of Statute law include: The Parliament Act (1911), which established the House of Commons as the dominant chamber of parliament. More recent example is The Human Rights Act (1998), which enshrined key rights in UK law. Secondly there is Common Law, Common law includes legal principles that have been developed and applied by UK courts.
8/2/11 I think we need a bicameral legislature today because we wouldn’t want just one branch to make our law and be able to do want they want. We need to have that second opinion so we have an equal discussion on all matters in the United States. If we had only one branch they could make all kinds of laws and we would have to abide buy them even though they may not be fair to everyone. We need to keep it the way it is and elected new bleed into the system. ADVANTAGES AND DISADVANTAGES A bicameral is two chambers; the Senate and the House of Representatives.
The role of the executive ‘..includes initiating and implementing legislation, maintaining order and security, promoting social and economic welfare, administering public services and conducting the external relations of the state. The judiciary is made up mainly of professional judges, and their main function is ‘to determine disputed questions of fact and law in accordance with the law laid down by Parliament and expounded by the courts and ..is exercised mainly in the civil and criminal courts.' The question which now arises is whether or not there should be a strict separation of each of the above functions. Locke stated: ..it may be too great a temptation to human frailty..for the same persons who have the power of making laws, to have also their hands the power to execute them, whereby