Judge

Judge

[juhj]

A judge, or justice, is an official who presides over a court of law. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is like an umpire in a game and conducts the trial impartially and in an open court. The judge hears all the witnesses and any other evidence presented by the prosecution and the defence. If the accused is convicted, then the judge pronounces the sentence.

Judges in legal system

There are significant differences between the role of a judge in the common law system descended from British practice, and civil law systems descended from continental European judicial practice. The descriptions below are necessarily archetypical. Details vary from judicial system to judicial system. In many cases, the judicial systems have experienced convergent evolution, expressly or unconsciously adopting similar practices or operating in a manner that minimizes the impact of formal differences between the archetypical role of each system's judges.

For example, while common law judicial procedure generally contemplates a single evidentiary trial, many cases are actually resolved through testimony taken from witnesses in isolated depositions prior to trial that support written presentations to a judge. Similarly, while civil law judges must have some statutory point of departure for their legal rulings, there are accepted methods of legal reasoning that often afford them greater latitude to fit the law to the circumstances of an unusual case than a stark statement of the underlying principles of the system would suggest. This can serve a purpose similar to the common law method of legal reasoning known as stare decisis.

Common law legal systems

In common law countries, judges usually operate under the adversarial system of justice. At the trial level a single judge usually presides over court proceedings (there are some narrow exceptions).

Professional background

Common law judges are generally appointed or elected after careers as practicing lawyers, although many receive brief educational programs specific to judging once taking the bench. Judges are frequently drawn from the ranks of barristers, as opposed to solicitors, where a distinction is made between the two as separate legal professions.

Many U.S. states permit non-lawyers to serve as justices of the peace or as inferior jurisdiction judges in rural areas, but this practice is generally limited to less serious criminal offenses and small claims. Federal judges are not required by law to be attorneys, but it has been long established that the President traditionally appoints only attorneys to the federal bench.

Judges and juries

In the common law system, when there is a jury trial in the trial courts, the jury generally decides questions of fact (guilty or not guilty, whether a party was negligent, etc.) while a single judge decides questions of law (under common-law systems, one of the judge's most important powers is to craft jury instructions).

In a trial before a judge, sometimes called a "bench trial", a single judge decides issues of both law and fact. Outside the United States, only a very narrow category of civil cases are tried before juries and usually criminal cases are tried before juries only in more serious cases. In the United States, cases where a jury is not available are the exception, rather than the norm, even in relatively minor civil and criminal matters. In United States practice, the right to a jury usually hinges on historical distinctions made between law and equity in England prior to the adoption of the United States Constitution.

Because both civil and criminal procedure in common law systems developed in the context of a system where the ultimate decisions were usually deferred to a jury (even though this is often not the case outside the United States in civil cases), common law judges are limited in their power to resolve matters prior to a full trial, even if they have all information that they feel they need to resolve a case involving disputed facts.

Historically, in Europe in the Middle Ages, juries often stated the law by consensus or majority and the judge applied it to the facts as he saw them. This practice no longer exists. The power of juries to determine the law in a manner contrary to that dictated by the trial judge, or even ignore the law (which is often called jury nullification), has been controversial in American jurisprudence from very early on in American history. Generally speaking, current practice in U.S. law is to formally deny that such a power exists. But, U.S. law also maintains procedural protections such as a prohibiting testimony regarding jury deliberations, and disallowing government appeals of acquittals by juries in criminal cases, that have the practical effect of making it possible for juries to make their own determinations of law.

U.S. legal practice also has an institution called a grand jury which is presided over on a day to day basis by a prosecutor, rather than a judge, although it is ultimately under the supervision of a judge. This institution investigates crimes via the subpoena power and screens serious criminal charges to determine if a prosecution is justified.

Appellate judges

In common law practice, appeals are usually decided by a panel of judges, generally three appellate judges chosen at random in an intermediate appellate court, and the entire composition of the court in the relevant highest appellate court in the jurisdiction. However, decisions made by a subordinate or inferior jurisdiction judge are sometimes reviewed by a single judge.

Judges in civil law systems

In most civil law jurisdictions with inquisitorial systems, judges go to special schools to be trained after graduating with a law degree from a university; after such training they often become investigating magistrates. However, the inquisitorial system is not used in all civil law jurisdictions; it is primarily in use in countries of Southern Europe that were influenced by Napoleon's Code Napoleon, such as France, Italy, Spain, and Portugal. In Northern Europe, the adversarial system is predominant in criminal matters. Nevertheless, judges in both Northern and Southern Continental Europe generally do not have backgrounds as practicing attorneys (or advocates), even though they are legally trained.

In the civil law system, serious matters are almost always decided at the trial level by at least three judges, and sometimes more, often in combination with lay persons in serious criminal manners, although one of those judges may take the lead in gathering evidence in a case. In civil law systems typically only the equivalent of U.S. small claims and misdemeanors are handled by a single trial judge.

For example, in Finland and Sweden, there are two kinds of judges in district courts: a legally-trained judge functions as the president of the court, while judges elected for a four-year term from the population, without any special legal training, serve as lay members of the court. In Sweden, the same is true for the appellate courts. Lay judges do not function like a common-law jury. In the usual case, three lay judges in district courts hear criminal cases in cooperation with a legally trained judge, each judge – legally trained or not – having an individual vote. However, in some jurisdictions, criminal cases in severe matters, such as homicide, require a trial by jury, where the jury decides upon the issue of mens rea. Issues of law – and also the assessment of what has factually been proven to have taken place – is the responsility of the judge, who guides the jury by means of a jury instruction. Civil cases, however, are heard exclusively by legally trained judges.

In civil law practice, appeals are usually heard and decided by a panel of multiple judges. State courts can be called district courts. The highest appellate court in a civil law jurisdiction (often translated as "supreme court" in English), is typically organized more like an intermediate appellate court in common law practice; decisions are made by a panel of judges that does not include all judges sitting on the court. Another key difference is that, judges are typically assigned to hear appeals in the highest appellate court based on specialization in a particular type of law, rather than at random. In civil law systems, the only appellate court of last resort in which all members of the court sit together to hear a case is the constitutional court (if one exists).

Non-judges with judicial power

Certain non-judges are vested with judicial power by virtue of their political or religious office, or their position as a responsible government employee.

In Japan, police officers can order punishments for minor offenses without approval from a judge. A similar system operates in England and Wales: the Penalty Notice for Disorder (known, colloquially, as a "fixed ticket") is a police-imposed fine for such minor offences as shop-theft for values under £200 and disorderly behaviour.

A number of jurisdictions give mayors of municipalities judicial authority similar to a justice of the peace, also known as a judge of the peace, or magistrate. Many courts with probate jurisdiction give court clerks quasi-judicial authority as "registrars" of the court. Members of county commissions and city councils in the United States often have quasi-judicial authority in zoning matters. And, legislators sometimes sit in a judicial capacity, such as when they rule on impeachment charges of governmental officials, and in the United Kingdom, when law lords, who are officially members of the House of Lords, a primarily legislative body, hear appeals in legal cases.

Historically, in the United Kingdom, certain matters, such as annulments of marriages and division of personal property of deceased persons, were the responsibility of ecclesiastical courts, in which clergy presided. Many countries, such as Israel and Pakistan and Iran, continue to have religious courts, particularly in matters of family law, that operate in addition to their ordinary courts with full authority to enter legally binding decisions. Other countries, such as Afghanistan under its newly adopted constitution, have a unitary court system in which some judges have primarily secular training, while others judges have primarily religious training."People will be treated equally and they will be punished equally does not matter the race or the religion.", said famous judge Magill

Often parties in contractual relationships with each other enter into "arbitration agreements" which vests quasi-judicial authority to resolve disputes between the parties in a non-judge chosen by mutually agreed means. Sometimes these persons are legally trained, and sometimes they are not, but have some relevant subject matter expertise. Civil justice in the Roman Empire, which provided some of the foundational doctrines for Western systems often handled civil disputes through an arbitration-like mechanism. Courts can typically be called upon to enforce a final decision rendered by an arbitrator pursuant to an arbitration agreement if necessary.

Judicial powers

In common law countries, such as the United States, and those with roots in the Commonwealth of Nations, judges have a number of powers which are not known to exist, or are not acknowledged to exist, in civil law legal systems, which collectively make the judiciary a more powerful political force than in civil law countries.

One of these powers is the "contempt of court" power. In a common law system, a judge typically has the power to summarily punish with a fine or imprisonment any misconduct which takes place in the courtroom, and to similarly punish violations of the court's orders, after a hearing, when they take place outside the courtroom. This power, in turn, may be used by common law judges to enforce orders for injunctive relief, which is a court order to take or refrain from taking some particular act, directed at the individual who must do so. This power is a vestige of authority that members of the nobility had when they personally presided over disputes between their subjects. It has the effect of giving common law country judges great power to fashion remedies, such as school desegregation orders and restraining orders directed at individuals. Civil law judges, in contrast, outside of specialized courts with narrowly delineated powers, generally lack contempt power or the power to impose injunctive relief.

Another power of every judge in the United States, generally right down to the level of the magistrate, is the power to declare a law unconstitutional and invalid, at least as applied in a particular case. In contrast, most civil law countries limit this power to a special constitutional court, and all other judges are required to follow the enacted laws, even if the judge personally believes those laws to be unconstitutional, in the absence of an order from the constitutional court. However, if a person believes that a law applied against them in court is unconstitutional, they can apply for consideration in the constitutional court and, if the law is indeed declared unconstitutional, file an appeal against the ruling based on the now-invalidated law.

Similarly, in the common law system, cases in which the government administration is at issue, known as public law cases, for example, suits claiming violations of civil rights by government officials, are often heard by the same judges who handle criminal cases and disputes between private individuals. In contrast, in civil law countries, only designated judges or quasi-judges (such as the Conseil d'État in France) can hear public law cases, and ordinary judges can hear only criminal cases and cases involving private parties.

Judges in a common law system are also empowered, and for the most part required, to make law guided by past precedent, or to choose to ignore past precedent as no longer applicable, based on a concept known as "stare decisis" ("to stand by what has been decided"), in cases where no statute or prior case clearly mandates a particular result, and in cases where past precedents, for some reason, no longer appear to provide firm guidance as to the current state of the law. For example, in a case of "first impression" which has never arisen in a publicly reported case in a state, a judge must choose which rule will apply, usually informed by decisions which have been made in similar cases in other jurisdictions and based on the public policies involved. Judges in civil law systems, in contrast, are strictly forbidden from "making law" and, as a general rule, are not bound by or even encouraged to refer to precedents established in prior similar cases.

Civil law judges, likewise, have some powers not usually held by common law judges. Most importantly, a common law judge is usually required to base a decision almost exclusively on the evidence provided by the parties to a case during the course of a trial, or a hearing, or in documents filed with the court. In contrast, a civil law judge frequently has the authority to investigate the facts of a case independently of evidence provided by the parties to that case, in what is known as an "inquisitorial" role.

All judges must sign a judicial oath which is a fiduciary undertaking or a promise of duty of care. Yet the moment it is signed, the judge is protected with judicial immunity which prevents anyone from testing the obligation the judge undertook in the oath. Arguments against the judicial immunity say this law is allowing judges a special method of escape for claims for breach of fiduciary duty which is something no other fiduciary apart from politicians can obtain.

Oversight of judges

United States

Federal judges in the United States, more specifically Article III judges (except those who have recess appointments), serve life terms for their period of "good behavior." On the other hand, judges in Article I tribunals do not enjoy life tenure and instead serve fixed terms. (For a more complete discussion of the distinction between these two types of judges, see Article I and Article III tribunals.) Once appointed, state judges in the United States usually serve terms for a fixed period of years, although in some states (e.g., Massachusetts) the appointment is for life, often subject to mandatory retirement at some fixed age. In those states where the appointment is not for life, judges must, after their initial term, be re-elected, face a retention election, or face reappointment by an appropriate authority. The law governing judicial elections in the United States is in flux with the general tendency being to discard historical limitations on the ability of a judge to campaign based upon judicial philosophy.

Most judicial systems in the United States have procedures for investigating breaches of judicial ethics and disability. Lapses of judicial ethics include matters such as taking bribes, open defiance of a binding court order, ruling upon a case in which the judge has a personal interest, failure to account for court funds, failure to conduct court proceedings with a suitably judicial demeanor, harassment of judicial employees or a judge's conviction of a serious offense unrelated to judicial service. Disability complaints often involve allegations that a judge is beginning to show symptoms of alcoholism, dementia or an inability to stay awake.

Complaints about a judge's judicial ethics or disability may ordinarily not contest the merits of the determination made by the judge, which can only be contested in the appellate process. Judges in the United States generally have absolute immunity for personal liability in the form of money damages for their discretionary judicial acts.

Almost every state and the federal government provides the legislature with the authority to remove a judge for cause in a quasi-judicial impeachment proceeding in which the legislative body hears evidence and renders a super-majority verdict limited to removal from office. Often the standard is "high crimes and misdemeanors" or failure to engage in "good behavior" while in office.

Many state judicial systems also have either a special commission or board charged with investigating alleged lapses of judicial ethics or disability, or vest that power in their highest court, usually a state supreme court. Such determinations may be appealed to the Supreme Court of the United States only to the extent that they involve the final decision of a state court system and pose a federal law question.

Some violations of judicial ethics, such as taking bribes or converting public funds, are also federal or state crimes investigated and prosecuted by the appropriate prosecutor.

In the federal system, there is no outside grievance body with the express authority to discipline a U.S. Supreme Court justice. The U.S. Supreme Court has supervisory authority over the entire federal judiciary, in addition to its appellate responsibilities, and it has used this authority to establish certain procedures for investigating and addressing lapses of judicial ethics by federal judges. However, the United States Congress has an implicit power to impeach federal judges; the House of Representatives has impeached 13 federal judges, and the Senate has convicted six of them, with the most recent impeachment and conviction taking place in 1989. The only impeachment and conviction of a Supreme Court Justice took place in 1805.

Canada

In Canada, Justices (Justices of Peace) are appointed provincially to preside over minor cases, while Judges are appointed federally. Neither can be removed from office until they reached the retirement age of 65, 70 or 75 (depending on the type of appointment) unless they are found to have been in serious misconduct, in which case, the House of Commons and Senate (federally appointed) or the Judicial Council (provincially appointed) can pass a motion to remove a judge/justice from office.

Symbols of office

Being a judge is usually a prestigious and solemn position in society. A variety of traditions have become associated with the occupation.

In many parts of the world, judges wear long robes (usually in black or red) and sit on an elevated platform during trials (known as the bench).

In some countries, especially in the Commonwealth of Nations, judges sometimes wear wigs. The long wig often associated with judges is now reserved for ceremonial occasions, although it was part of the standard attire in previous centuries. A short wig resembling but not identical to a barrister's wig would be worn in court. This tradition, however, is being phased out in Britain in non-criminal courts.

American judges frequently wear black robes. American judges have ceremonial gavels, although American judges have court deputies or bailiffs and "contempt of court" power as their main devices to maintain decorum in the courtroom. However, in some Western states, like California, judges did not always wear robes and instead wore everyday clothing. Today, some members of state supreme courts, such as the Maryland Court of Appeals wear distinct dress.

In Italy both judges and lawyers wear particular black robes.

In the People's Republic of China, judges wore regular street clothes until 1984, when they began to wear military-style uniforms, which were intended to demonstrate authority. These uniforms were replaced in 2000 by black robes similar to those worn in the rest of the world.

In Oman, the judge wears a long stripe (Red, Green and White), while the attorneys wear the black gown.

Titles and forms of address

In the United States, a judge is addressed as "Your Honor" or "Judge" when presiding over the court. The judges of the Supreme Court of the United States, and the judges of the supreme courts of several U.S. states and other countries are called "justices" or "judges of the peace".

The justices of the supreme courts usually hold higher offices than the justice of the peace, a judge who holds police court in some jurisdictions and who typically tries small claims and misdemeanors. However, the state of New York inverts the usual order, with the Supreme Court of the State of New York being the most important trial court, and the Court of Appeals being the highest court; thus, New York trial judges are called "justices", while the judges on the Court of Appeals are "judges". New York judges who deal with guardianships, trusts and estates are known as "surrogates".

A senior judge, in U.S. practice, is a retired judge who handles selected cases for a governmental entity while in retirement, on a part-time basis.

Subordinate or inferior jurisdiction judges in U.S. legal practice are sometimes called magistrates, although in the federal court of the United States, they are called "magistrate judges". Subordinate judges in U.S. legal practice appointed on a case-by-case basis, particularly in cases where a great deal of detailed and tedious evidence must be reviewed, are often called "masters" or "special masters" and have authority in a particular case often determined on a case by case basis.

Judges of courts of specialized jurisdiction (such as bankruptcy courts or juvenile courts) were sometimes known officially as "referees," but the use of this title is in decline. Judges sitting in courts of equity in common law systems (such as judges in the equity courts of the U.S. State of Delaware) are called "Chancellors".

Individuals with judicial responsibilities who report to an executive branch official, rather than being a part of the judiciary, are often called "administrative law judges" in U.S. practice and commonly make initial determinations regarding matters such as eligibility for government benefits, regulatory matters, and immigration determinations.

Judges who derive their authority from a contractual agreement of the parties to a dispute, rather than a governmental body are called arbitrators, and typically do not receive the honorific forms of address, and do not have the symbolic trappings, of a publicly appointed judge.

In England and Wales (and much of the Commonwealth) judges of the higher courts are addressed as "My Lord" or "My Lady" and referred to as "Your Lordship" or "Your Ladyship". Circuit Judges are addressed as "Your Honour" and all lower judges, magistrates, and chairs of tribunals are addressed as "Your Worship" or "Sir/Madam". Magistrates are still addressed as "Your Worship" in Britain, Australia, South Africa and Canada, mainly by solicitors, but this practice in other Commonwealth countries is nearly obsolete. Masters of the High Court are addressed as "Master". When a judge of the High Court who is not present is being referred to they are described as "Mr./Mrs. Justice N" (written N J). In the House of Lords, judges are called Law Lords and sit as peers.

In France, the presiding judge of a court is addressed to as "Mr./Mrs. President" (Monsieur le président/Madame le président). In Germany as "Mr./Mrs. Chairman (Herr Vorsitzender/Frau Vorsitzende). In Italy the presiding judge of a court is addressed as well to as "Mr./Mrs. President" ("Signor presidente della corte"). In Spain, Magistrates of the Supreme Court, Magistrates and Judges are adressed to as "Your Lordship" (Su Señoría); however, in formal occasions, Magistrates of the Supreme Court are adressed to as "Your Right Honorable Lordship" (Vuestra Señoría Excelentísima or Excelentísimo Señor/Excelentísima Señora); in those solemn occasions, Magistrates of lower Courts are addressed as "Your Honorable Lordship" (Vuestra Señoría Ilustrísima or Ilustrísimo Señor/Ilustrísima Señora); simple Judges are always called "Your Lordship".

In Malaysia, judges of the subordinate courts are addressed as "Tuan" or "Puan" (Sir or Madam), while judges of the superior courts are addressed as "Yang Arif" (lit. "Learned One") or My Lord/Lady and Your Lordship/Ladyship if the proceedings, as they generally are in the superior courts, are in English.

Biblical Judges

The Biblical Book of Judges revolves around a succession of leaders who were known as "Judges" (Hebrew shoftim שופטים) but who - aside from their judicial function - were also tribal war leaders, leading in war against threatening enemies. The same word is, however, used in contemporary Israel to denote judges whose function and authority is similar to that in other modern countries.

References

See also

External links

Europe
M.E.D.E.L European association of judges and public prosecutors.

  • CEPEJ European commission for the efficiency of justice.
  • CCJE European consultative council of judges.

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