Judiciary

• 1. Introduction

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  The judiciary is the system of courts that adjudicates legal disputes and applies the law to the facts of each case. It sits apart from both the legislature, which writes statutory law, and the executive, which enforces it. What the judiciary does is interpret - reading law, weighing facts, and deciding outcomes. But that simple description conceals a history spanning more than two thousand years, a history in which priests gave way to praetors, monks codified church doctrine, and revolutions remade who was allowed to speak the law at all. How did courts come to occupy this distinct, bounded role? And why, even today, do questions of political bias and sentencing disparities continue to test public confidence in judicial systems around the world?

• 2. Rome's Legal Foundations

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  In 451-449 BC, a set of rules called the Mos Maiorum - the "way of the ancestors" - was written down in the Twelve Tables, giving Rome its earliest codified legal text. Before that, these norms existed only as social custom passed down through generations. The legal process of that archaic period moved in two distinct phases. The first, called In Iure, brought parties before the head of the judicial system - initially the priests, because law was considered part of religion. There, the applicable rules would be identified, and parties could call on jurists for assistance. The second phase, the Apud Iudicem, brought the case before a panel of ordinary Roman citizens, present in an uneven number. These men were orators rather than legal specialists. There were no rules of evidence, and little recourse if the judgment went against you.

  The shift away from priestly authority came during the Pre-classical period, from 264 to 27 BC, when the praetor replaced the priest as head of the judicial system. Each praetor could issue an edict announcing new laws or legal principles for the year of his election - a body of rules that became known as praetorian law. With the Principate, beginning in 27 BC under Augustus, the edicts accumulated until the emperor Hadrian gathered them all into a single collection called the edictum perpetuum. A new procedure emerged alongside it: the cognitio extraordinaria, or "extraordinary process." Unlike the old two-phase system, this single-phase procedure placed the case before a professional judge who was a direct representative of the emperor. For the first time, appeal to an immediate superior became possible.

  Legal expertise itself became a recognized vocation during this classical era. Scholars studied law, advised the emperor, and were permitted to give formal legal opinions on the emperor's behalf. The Dominate period, from 284 to 565 AD, saw all of this expertise collected and systematized in one monumental act: the Codification of Justinianus, producing the Corpus Iuris Civilis. It contained all Roman law in four parts - the Institutiones as introduction and summary, the Digesta collecting the edicts, the Codex gathering the laws of the emperors, and the Novellae recording new legislation. That single compilation would echo through European law for the next thousand years.

• 3. Medieval Courts and Canon Law

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  The Corpus Iuris Civilis was rediscovered in 1070, and the impact on European legal education was immediate. The University of Bologna took up the teaching of Roman law, and its professors were called upon to advise both the Emperor and the Pope on the ancient texts. From this work emerged the Glossators, a school of scholars who translated and recreated the Corpus while generating new forms of legal literature: the Glossae, which translated old Roman laws; the Summae, condensed summaries; the Brocardica, short mnemonic phrases to make the old rules memorable; and the Quaestio Disputata, a dialectical method of testing arguments against their counterarguments. Accursius brought this early scholastic period to a close when he wrote the Glossa Ordinaria in 1263. His successors, the Post-Glossators or Commentators, moved beyond translation to systematic commentary, writing treatises and consilia - formal legal advice grounded in Roman precedent.

  Running alongside this revival of Roman law was the parallel development of canon law - the law of the Roman Catholic Church. Canon law drew on two kinds of rules: the canones, decisions made by Church Councils, and the decreta, decisions issued by the Popes. The monk Gratian organized the full body of church law into a text now known as the Decretum Gratiani, which became the first part of a collection of six legal texts called the Corpus Juris Canonici. Canonists of the Roman Catholic Church used it as their governing authority until Pentecost, the 19th of May 1918, when a revised Code of Canon Law promulgated by Pope Benedict XV on the 27th of May 1917 came into legal force.

  Kenneth Pennington, a historian of legal history, has noted that the sources of medieval law are diverse and include consilia, decretals, conciliar canons, and Spanish procedural tracts. He argues that the true mind of medieval judges is unknowable, but that scholars who know the norms jurists created in procedural jurisprudence have a far better chance of reading those sources correctly. By the 15th century, Roman law and canon law began to merge into a single hybrid framework called Ius Commune - a combination in which canon law supplied common norms and principles while Roman law provided the actual rules and technical terms. The process in the Ius Commune tradition allowed for appeal and blended inquisitorial and adversarial elements. Medieval judges operated under these procedural rules, which, while offering some protection against harsh punishments like torture, the Auto-da-fe, and capital punishment, did not extend judicial protection to heretics, the poor, or political opponents.

• 4. Revolution and Reinterpretation

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  After the French Revolution, lawmakers moved to strip judges of the power to interpret law at all. Interpretation was reserved exclusively for the legislature. That prohibition did not last. The Napoleonic Code later overturned it, restoring judicial interpretation as a recognized function. In common law jurisdictions, courts do more than apply existing rules. They also make law - in a limited sense, bounded to the facts of particular cases - in areas where the legislature has not acted. The tort of negligence, for instance, is not derived from statute law in most common law jurisdictions. Decisions in these cases set precedent that all courts within the system are bound to follow, a principle sometimes called stare decisis.

  Judicial review adds another dimension to the court's power. Courts with constitutional review authority can strike down laws and state rules found to be incompatible with primary legislation, constitutional text, treaties, or international law. The reach of this power varies by country. In France, the Council of State holds final interpretive authority over administrative cases, while the Court of Cassation handles civil and criminal matters. In the People's Republic of China, the National People's Congress is the final interpretive authority. In countries like Argentina, a mixed system operates with lower courts, appeals courts, a cassation court for criminal law, and a Supreme Court of nine justices - a number that has been changed several times. Criminal cases in Argentina pass through four stages, one more than civil cases.

• 5. Courts Across Countries

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  Japan's process for selecting judges is longer and more stringent than in countries such as the United States and Mexico. Assistant judges are drawn from those who have completed training at the Legal Training and Research Institute in Wako. After appointment, an assistant judge cannot qualify to sit alone for five years, and must receive a further appointment from the Supreme Court of Japan. Full judges require ten years of experience as either a public prosecutor or a practicing attorney. Japan's judicial branch includes the Supreme Court, eight high courts, fifty district courts, fifty family courts, and 438 summary courts.

  In Mexico, justices of the Supreme Court are appointed by the President of Mexico and confirmed by the Mexican Senate, serving twelve-year terms. Other justices are appointed by the Supreme Court itself and serve for six years. The federal courts consist of nine ministers of the Supreme Court, 32 circuit tribunals, and 98 district courts. The Supreme Court sits in Mexico City. Candidates must be between 35 and 65 years of age upon appointment and must have held a law degree for the five years preceding their nomination.

  The United States Supreme Court justices are appointed by the President and confirmed by the Senate, and they serve for life or until retirement. The court sits in Washington, D.C. The federal court system is organized into 94 judicial districts, which are grouped into twelve regional circuits. Below the Supreme Court sit five types of subordinate courts: bankruptcy courts, the Court of Appeals for the Federal Circuit, the Court of International Trade, the courts of appeals, and the district courts. State courts, notably, try 98 percent of all litigation in the country. Immigration courts sit outside the judicial branch entirely; immigration judges are employees of the Executive Office for Immigration Review, which belongs to the Department of Justice in the executive branch. The distinction matters because the judiciary's legitimacy rests partly on its independence from executive power - a principle that has been tested, and will continue to be tested, wherever political bias, sentencing disparities, or public perceptions of leniency put that independence in question.