Chapter 11: The Judicial Process

The Separation of Powers

Montesquieu laid stress of the doctrine of separation of powers
Three different sorts of legal powers:
1. Legislative enact new laws
2. Executive enforce and administer laws as wells as to determine the policy within the
framework of the laws
3. Judiciary interpret the laws established by the legislative power

US: adopted this form of constitution after the Declaration of Independence

English System: government is an integral part of the legislature and is in effective control by the
reason of its parliamentary majority

The Independence of the Judiciary

Judiciary 3rd arm of the constitution and must be entirely separate from both the legislative and
executive powers
Independence of the judiciary - if the laws are to be fairly interpreted and impartially applied it is
important that the judiciary should enjoy an independent status and be free from political pressure
Two principles
1. Question on appointments
How can independence be preserved if appointments are in their very inception made by
politicians?
- Important Factor development of a strong tradition in favor of ignoring political
considerations when making judicial appointments
-

England: Dual role of the Lord Chancellor as politician and as head of the judiciary
United States:
o President appoints to the federal judiciary but only with the approval of the Senate
o States of the Union judges are not appointed but are elected

One of the vital means of preserving judicial independence in the common-law world
o Judges should hold office for life or until retirement, and should not be removable by
executive action

2. Question on promotion
- Almost as important as that of initial appointments in regard to judicial independence
- England:
o Largely overcome by avoiding too hierarchical pattern in regard to the higher judiciary by
keeping salaries on almost the same level and by avoiding any form promotion on the
basis of seniority
This system is greatly aided by historical antecedents and its exceptionally strong
traditions and long-established status
Do the judges make law?
Fr. Ferrer: Yes but only a few but not blatant but should not invoke public policy, public order and
morals since it is within the wisdom of the law which is the under the legislature
Judicial Role not properly legislative at all but consists merely in stating what the existing law
actually is, and in interpreting authoritatively doubtful points as they arise

Traditional approach of common-law judges had no power to make law but simply declared it
as it had always been

Two views of nature of law:

1. As a kind of sacred mystery in the hands of the priesthood
- Aristocratic order of society
- Judges as exponents of an unwritten law and as representatives of the royal fount of justice
were regarded as depositaries or living oracles of the law (Blackstone)
2. As a body of customary rules established for the whole realm
- Royal judges were no more than the especially qualified exponents rather than creator

Idea of judges doing no more than declare the law was a hollow pretense and was stigmatized by
both Bentham and Austin
Bentham
- Common law was judge-made law or as he calls it product of judge and co.
- Believed in the virtues of rational codification which means that judicial legislation could be
avoided
- Comparing it to the way a man makes law for his dog
o To wait until it does something which he disapproves and then to beat it and teach it that
what it did was wrong
Austin
- Theory that derived all law from the command of a sovereign legislator
- Rule of judge-made law hold a place of paramount importance in our legal system and
Parliament in truth has no effective power of preventing their being made
- recognized in the inevitability of judicial law-making under the codified system and
expressed its approval as an essential means of bringing the law into line with the needs of
a modern community
- doctrine of utility
- Cardinal tenet of legal positivism: we must differentiate between the law as it is and the law
as it ought to be

Power of judicial law-making differed fundamentally from the true legislative function, under which
policy decisions could be made in favor of new laws
Judiciary should avoid involving itself in policy decisions
o Should be made on grounds of legal consistence than extra-legal basis (social purpose,
morality, justice or expediency)

The Limits of Judicial Law-Making