Sidgwick says: "The importance of the Judiciary in political construction is rather profound than prominent. In determining a nation's rank in political civilization, no test is mare decisive than the degree in which justice, as defined by the law, is actually realized in its judicial administration. " Lard Bryce writes: "If the law be dishonestly administered, the salt has last its flavaur; if it be weakly and fitfully enforced, the guarantees .of .order fail, far it is mare by the certainty than by the severity .of punishment that .offenders are repressed. If the lamp .of justice goes out in darkness, haw great is that darkness." Again, "There is no better test .of the excellence of a Government than the efficiency .of a judicial system; …show more content…
The man in the street does not understand and appreciate the important part played by the judiciary in safeguarding the liberties .of the individuals. Students .of the Stuart period of the history of England know that in spite of the arbitrary rule of the kings, the people did not suffer much as the strong judiciary of England acted as a shield ta protect the individuals. Wherever the judiciary is strong and not subservient, the executive dare not act arbitrarily in its relations with the people. If a person is unlawfully arrested, a writ of habeas corpus can bring that person to the court and he can be detained in jail only if the police or the executive can convince the judge concerned that his detention is according ta law. The judiciary will see ta it that the rights of the pea pie are protected. Once the law has been made, it cannot be given any arbitrary interpretation by the executive. It is up ta the courts ta decide the meaning of the law. Experience shows that the judgments given by the judges depend upon the individuality of the persons concerned. If a judge is a communalist, his judgments will be vitiated by his communalism. If he is corrupt, he cannot give justice to the parties concerned. If he is an upright man, he will not be afraid of calling a spade a spade. If the police has transgressed the limits .of decency, the …show more content…
The judiciary is not only the final interpreter of the constitution, it is also its guardian. It is rightly pointed out that it is not the people who govern America but the 5 out of the 9 judges of the Supreme Court of America who decide what the law of the country is. The question is not whether a particular law is good or bad, what matters is whether the Supreme Court regards that law as ultra vires or intra vires. Lord Bryce says: "Where questions arise as to the limits of the powers of the executive or of the Legislature, or in a Federation as to the limits of the respective powers of the Central or national and those of the State Government, it is by a court of law that the true meaning of the constitution, as the fundamental and supreme law, ought to be determined, because it is the rightful and' authorized interpreter of what the people intended to declare when they were enacting a fundamental
... “inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice”? (Hamilton.Jay.Madison 105) With an end reminding us of the tough qualifications judicial offices must have met to get into office. “Hence it is that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the station of judges.” (Hamilton.Jay.Madison 106)
Through the years many changes have taken place, and technologies have been discovered, yet our Constitution remains. Some say that the Constitution was written for people hundreds of years ago, and in turn is out of step with the times. Yet its principals and guidelines have held thus far. The framers would be pleases that their great planning and thought have been implemented up until this point. However this does not compensate for the fact, that the we the people have empowered the government more so than our fore fathers had intended. Citizens were entrusted with the duty to oversee the government, yet so many times they are disinterested and only seem to have an opinion when the government’s implications affect them. As time has changed so has the American people, we often interpret our freedoms in a self serving manner, disregarding the good of the whole and also the good for the future. Thus there are no true flaws in the Constitution, it appears that the conflict emerges in the individual and their self, and poses question when we must decide when to compromise the morals that our Constitution was founded on, or when to stick to what we know is right and honest.
The United States Constitution has received much criticism, both before and after its ratification in 1789. A wide array of thinkers from across the ages of the republic have offered criticisms about the nature, scope, and even fine details of the Constitution, sometimes providing solutions they think better themselves. Truly, however, two major schools of criticisms arise: those condemning the implications of having a document like the Constitution supreme over the nation, and those condemning specific parts and clauses of the document itself. Both criticisms based on the view that the Constitution is pro-slavery and those arguing against the nationalist nature of the document are unfounded.
Palmer, Elizabeth A. "The Court and Public Opinion." CQ Weekly 2 Dec. 2000. CQ Weekly. SAGE Publications. Web. 1 Mar. 2000. .
Since the advent of human government, one of the principle fears held by the constituents of the government has always been to prevent any form of tyranny or abuse within it. Tyranny can be loosely described as one person or a group of people having total power in a government leading to the subjugation and oppression of people’s rights. Many new nations wish to eliminate any aspect of their government that may eventually lead to tyranny. The United States was no different in this respect; the framers of the Constitution longed to have no signs of tyranny in their government because they had gone to war with Britain for that very reason. In 1787, a group of fifty-five delegates came from throughout the states to meet in Philadelphia to discuss the problems with the current government. The existing Articles of Confederation posed a monumental problem for these individuals; they recognized that the central government was almost entirely powerless under these articles. Besides this, another problem was that the government lacked a court system or a chief executive. The central government did not possess the power to tax the states either. These problems warranted change which prompted these men to get together. This new constitution they were to create was supposed to guard the people against all kinds of tyranny whether it be of a few, the many or majority, or even a single individual. This seemed virtually insurmountable a task to accomplish but was ultimately achieved. The Constitution guards against tyranny by having a central and state government that cannot overrule or have more power over the other, establishing the separation of powers to keep anyone from abusing it, and having a sys...
The basis of criminal justice in the United States is one founded on both the rights of the individual and the democratic order of the people. Evinced through the myriad forms whereby liberty and equity marry into the mores of society to form the ethos of a people. However, these two systems of justice are rife with conflicts too. With the challenges of determining prevailing worth in public order and individual rights coming down to the best service of justice for society. Bearing a perpetual eye to their manifestations by the truth of how "the trade-off between freedom and security, so often proposed so seductively, very often leads to the loss of both" (Hitchens, 2003, para. 5).
...t that, invariably in the three decisions that gave states more rights, a need to curb national government supremacy was a more important factor than the Tenth Amendment. Indeed, the dual federalist approach was not the major factor either because the three aforementioned cases were all decided more as a response to the expansion of national supremacy than a desire to exert states rights. The Supreme Court has not always been capable of following the correct interpretation of the Constitution because of the effects of prior cases and political influences. In order to do so in the future, the Supreme Court need only remember that the constitution was meant to-- enhance national government power, the national government is supreme when its laws are made in the pursuance of the Constitution, and the Tenth Amendment gives the states a passive and not aggressive power.
This theory looks at how the sovereign and its officials created the law based on social norms and the institutions (Hart, 1958). However, hard cases such as this makes for bad law, which test the validity of the law at hand based on what the objective of the law was in the first place. The law should not be so easily dismissed just because it does not achieve justice in the most morally sound manner (Hart, 1958). Bentham and Austin understood that there are two errors in the way law is understood, what the law is and what the law should be (Hart, 1958). He knew that if law was to become what humans perceived the law ought to be, the law itself would be lost, but he also recognized that if the opposite was to occur where the law replaced morality, than any man would escape liability and there would be no retribution (Hart, 1958). This theory looks at the point of view of the dissenting judge, Justice Gray, which is that the law is what it is, even if it may conflict with morals. Austin stated that “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry (Hart, 1958).” This case presents the same conflict that Bentham and Austin addressed, that the law based on the statute of the
“ ….Judgments, right or wrong. This concern with concepts such as finality, jurisdiction, and the balance of powers may sound technical, lawyerly, and highly abstract. But so is the criminal justice system….Law must provide simple answers: innocence or guilt, freedom or imprisonment, life or death.” (Baude, 21).
The definition of justice and the means by which it must be distributed differ depending on an individual’s background, culture, and own personal morals. As a country of many individualistic citizens, the United States has always tried its best to protect, but not coddle, its people in this area. Therefore, the criminal justice history of the United States is quite extensive and diverse; with each introduction of a new era, more modern technologies and ideals are incorporated into government, all with American citizens’ best interests in mind.
An issue that has remained debatable since the Jackson litigation was what ought to be the ultimate controlling factor in the British constitution: parliamentary sovereignty or the rule of law. This essay sets out to consider the reputedly irreconcilable tension between the two fundamental constitutional principles by analysing the extensive obiter dicta in Jackson and relating it to judicial review which upholds the rule of law. The contention of this essay is that despite the courts' deferential attitude towards the sovereignty of the laws of Parliament, the rule of law may potentially gain dominance and surpass parliamentary sovereignty to become the ultimate controlling factor in the British constitution.
Robert N. Clinton, ‘Judges Must Make Law: A Realistic Appraisal of the Judicial Function in a Democratic Society’ [1981-1982] 67 Iowa L. Rev. 711 http://heinonline.org/HOL/Page?handle=hein.journals/ilr67&div=38&g_sent=1&collection=journals accessed 12 February 2012
Why is the concept of the rule of law an important aspect within society to have an integral understanding of? The rule of law is a facet of our society that affects and serves our lives on a daily basis because rules and laws dictate the underlying basis of our social interactions. One basic understanding of the idea of the rule of law is that society should be ruled by law, and not by men. At perhaps the most rudimentary level, the rule of law has been used to explain a type of governance that is founded upon universal and neutral rules. Endicott argues that communities can never adequately achieve the rule of law because “it requires, among other things, that government officials conform to the law. But they may not do so, and presumably there is no large community in which they always do so” (Endicott, 1999, p.1). Consequently, an area of rule of law is explored by Aristotle’s critique of Plato’s philosopher-rulers theory and his defence and understanding of the rule of law.
The grounds of judicial review help judges uphold constitutional principles by, ensuring discretionary power of public bodies correspond with inter alia the rule of law. I will discuss the grounds of illegality, irrationality and proportionality in relation to examining what case law reveals about the purpose and effect these grounds.
Law is one of the most important elements that transform humans from mere beasts into intelligent and special beings. Law tells us what is right and wrong and how we, humans, should act to achieve a peaceful society while enjoying individual freedoms. The key to a successful nation is a firm, strong, and fair code of high laws that provides equal and just freedom to all citizens of the country. A strong government is as important as a firm code of law as a government is a backbone of a country and of the laws. A government is a system that executes and determines its laws. As much as fair laws are important, a capable government that will not go corrupt and provide fair services holds a vital role in building and maintaining a strong country.