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Functions of courts
1. The primary function of any court system in any nation – to help keep domestic peace – is so obvious that it is rarely considered or mentioned. If there were no agency to decide impartially and authoritatively whether a person had committed a crime and, if so, what should be done with him, other persons offended by his conduct would take the law into their own hands and proceed to punish him according to their uncontrolled discretion. If there were no agency empowered to decide private disputes impartially and authoritatively, self-help, quickly degenerating into physical violence, would prevail and anarchy would result. Not even a primitive society could survive under such conditions. All social order would be destroyed. In this most basic sense, courts constitute an essential element in society's machinery for keeping peace.
2. In the course of helping to keep the peace, courts are called upon to decide controversies. If, in a criminal case, the defendant denies committing the acts charged against him, the court must choose between his version of the facts and the prosecution's; and if he asserts that his conduct did not constitute a crime, the court must decide whether his view of the law or the prosecution's is correct.
3. In a civil case, if the defendant disputes the plaintiff's account of what happened between them – for example, whether they entered into a certain agreement – or if he disputes the plaintiff's view of the legal significance of whatever occurred – for example, whether the agreement was legally binding – the court again must choose between the contentions of the parties. The issues presented to and decided by the court may be either factual, legal, or both.
4. It would be a mistake, however, to assume that courts spend all of their time deciding controversies. Many cases brought before them are not contested. They represent potential, rather than actual, controversies in which the court's role is more administrative than adjudicatory. The mere existence of a court renders unnecessary any very frequent exercise of its powers. The fact that it operates by known rules and with reasonably predictable results leads those who might otherwise engage in controversy to compose their differences.
5. Most people arrested and charged with crime in the common-law world plead guilty. If they do so understandingly and without coercion of any sort, there is no need to determine guilt, for the sole question is whether the defendant should go to jail, pay a fine, or be subjected to other corrective treatment. In civil-law countries some judicial inquiry into the question of guilt or innocence is required even after a confession. But the inquiry is brief and tends to be perfunctory. The main problem to be resolved, usually without contest, is what sentence should be imposed.
6. How quickly should judges act to remedy injustice and when should they consider an existing rule to be so established that its alteration calls for constitutional amendment or legislative enactment rather than judicial decision? As many dissenting opinions attest, judges themselves disagree on the answers to these questions, even when they are sitting on the same bench hearing the same case.
7. In some nations courts not only interpret legislation but determine its validity and in so doing sometimes render statutes inoperative. This happens only in nations that have written constitutions and have developed a doctrine of "judicial supremacy." The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers, would be abolished, if those limits did not confine the persons on whom they are imposed, and if acts prohibited and acts allowed were of equal obligation. It is a proposition too plain to be contested, that the Constitution controls any legislative act repugnant to it.... It is emphatically the province and duty of the judicial department to say what the law is. Those, who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.
precedent and common law
1. To speak of precedent as "binding" even in common-law systems is misleading. As already noted, earlier decisions can be and are distinguished when judges conclude that they are based upon situations different from those before the court in later cases. Even more significant, earlier decisions can be overruled by the courts that rendered them (not by courts lower in the judicial hierarchy) when the judges conclude that they have proved to be so erroneous or unwise as to be unsuited for current or future application.
2. The Supreme Court of the United States has overruled many of its own earlier decisions, to the consternation of those who yearn for a rigid separation of powers and who are unable to accept the inevitability of judicial lawmaking. Many of these overrulings are in the field of constitutional law, in which legislative correction of an erroneous judicial interpretation of the Constitution is impossible and in which the only alternative is the exceedingly slow, cumbersome, costly, and difficult process of constitutional amendment.
3. Nevertheless, the power to overrule decisions is not restricted to constitutional interpretations. It extends to areas of purely statutory and purely judge-made law as well, areas in which legislative action would be equally capable of accomplishing needed changes. Even in England, which has no written constitution and which has traditionally followed a far more rigid doctrine of stare decisis than the United States, the House of Lords, in its role as the highest court, has announced its intention of departing from precedent "in appropriate cases."
4. The desirability of judicial lawmaking has long been the subject of lively debate in both civil- and common-law countries. That courts should not arrogate to themselves unrestricted legislative power is universally accepted. But if existing statutes and precedents are outmoded or barbarous as applied to specific cases before the courts, should not judges be able to change the law in order to achieve what they conceive to be just results or, stated differently, to avoid what they consider unjust results?
5. The extent to which the judges should be bound by statutes and case precedents as against their own ethical ideas and concepts of social, political, and economic policy is an important question, as is the matter of which should prevail when justice and law appear to the judges to be out of alignment with each other. These are questions upon which reasonable persons disagree vigorously even when they are in basic agreement on the proposition that some degree of judicial lawmaking is inevitable. What is mainly at issue is the proper tempo and scope of judicial change.
6. Armed with the authority asserted at this early date, the Supreme Court of the United States has held many statutes, federal as well as state, unconstitutional and has also invalidated executive actions that violated the Constitution. Even more suprising is the fact that lower courts also possess and exercise the same powers. Whenever a question arises in any U.S. court at any level as to the constitutionality of a statute or executive action, that court is obligated to determine its validity in the course of deciding the case before it.
7. The case may have been brought for the sole and express purpose of testing the constitutionality of the statute or it may be an ordinary civil or criminal case, in which a constitutional question incidental to the main purpose of the proceeding is raised. Of course, when a lower court decides a constitutional question, its decision is subject to appellate review, sometimes at more than one level. When a state statute is challenged as violating the state constitution, the final authority is the supreme court of that state; when a federal or state statute or a state constitutional provision is challenged as violating the Constitution of the United States, the ultimate arbiter is the Supreme Court of the United States.
8. In a few American states, questions as to the constitutional validity of a statute may be referred in abstract form to the state's highest court by the chief executive or the legislature for an advisory opinion. This, however, is unusual and, in any event, supplementary to the normal procedure of raising and deciding constitutional questions.
ENFORCEMENT OF JUDICIAL DECISIONS
1. In many civil-law countries, the ordinary courts have no control over administrative agencies, that is why their decisions are reviewed by a special tribunal that is engaged exclusively in that work and that has nothing to do with cases of the type that come into the courts. Its function is solely appellate and solely within the specialized areas the administrative agencies are entrusted with.
2. The method a judicial decision is enforced by depends upon its nature. If it does nothing more than declare legal rights as is true of a simple divorce decree (merely severing marital ties, not awarding alimony or the custody of children), or a declaratory judgment (for example, interpreting a contract or a statute), no enforcement is needed. If a judgment orders a party to do or refrain from doing a certain act, as happens when an injunction is issued, the court itself takes the first step in enforcing the judgment by holding in contempt anyone who refuses to obey its order and sentencing him to pay a fine or go to jail. Thereafter, enforcement is in the hands of the executive branch of government, acting through its correctional authorities.
3. In routine criminal cases and in civil cases that result in the award of money damages, courts have little to do with the enforcement of their judgments. That is the function of the executive branch of government, acting through sheriffs, marshals, jailers, and similar officials. The courts themselves have no machinery for enforcement. Some judgments are extremely controversial as was the case with the decision of the Supreme Court of the United States ordering racial desegregation of the schools. When voluntary compliance with such a judgment is refused, forcible methods of enforcement are necessary, sometimes extending to the deployment of armed forces under the control of the executive branch of the government. The withdrawal of executive support seldom occurs, even when decisions are directed against the executive branch itself; but when such executive support is withheld, the courts are rendered impotent.
4. Judges, being aware of their limited power, seldom render decisions that they know to be so lacking in support that they will not be enforced. As there are many different types of courts and many ways to classify and describe them, basic distinctions must be made between civil and criminal courts, between courts of general jurisdiction and those of limited jurisdiction, and between trial and appellate courts.
5. As far as criminal courts are concerned they deal with persons accused of crime, deciding whether they are guilty and, if so, determining the consequences they shall suffer. Prosecution is on behalf of the public, represented by some official such as a district attorney, procurator, or a police officer. Courts are also public agencies, but in this instance they stand neutral between the prosecution and the defense, their objective being to decide between the two in accordance with law.
6. Specialized tribunals of many kinds exist, varying from nation to nation. Some deal only with the administration of the estates of deceased persons (probate courts), some only with disputes between merchants (commercial courts), some only with disputes between employers and employees (labour courts). All are courts of limited jurisdiction. Deserving of special mention because of their importance are juvenile courts, empowered to deal with misconduct by children and sometimes also with the neglect or maltreatment of children. Their procedure is much more informal than that of adult criminal courts, and the facilities available to them for the pretrial detention of children and for their incarceration, if necessary after trial, are different The emphasis is on salvaging children, not punishing them. Traffic courts also deserve mention because they are so common. They process motor vehicle offenses such as speeding and improper parking. Their procedure is summary and their volume of cases heavy. Contested trials are relatively infrequent. Finally, in most jurisdictions there are what are called, unfortunately and for want of a better term, "inferior" courts. These are often manned by part-time judges who are not trained in the law. They handle minor civil cases involving small sums of money, such as bill collections, and minor criminal cases carrying light penalties, such as simple assaults. In addition to finally disposing of minor criminal cases, such courts may handle the early phases of more serious criminal cases – fixing bail, advising defendants of their rights, appointing counsel, and conducting preliminary hearings.
civil and criminal jurisdiction
1. In civil-law countries a more active role is assigned to the judge and a more passive role to counsel than in common-law countries. In the common-law courts, in which the "adversary" procedure prevails, the lawyers for both sides bear responsibility for producing evidence and they do most of the questioning of witnesses. On the contrary, in civil-law countries, "inquisitorial" procedure prevails, with judges doing most of the questioning of witnesses and having an independent responsibility to discover the facts. So, the difference pertains more to procedure rather than to function.
2. If a person has been found guilty, he is sentenced, again according to law and within the limits fixed by legislation. The objective is not so much to wreak vengeance upon the offender as to rehabilitate him and deter others from following his example. Hence, the most common sentences are fines, short terms of imprisonment, and probation (which allows the offender to remain at large but under supervision). In extremely serious cases, the goal may be to prevent the offender from committing further crimes, which may call for a long term of imprisonment or even capital punishment. The death penalty, however, is gradually disappearing from the criminal codes of civilized nations.
3. As far as civil courts are concerned they deal with "private" controversies, as where two individuals (or corporations) are in dispute over the terms of a contract or over who shall bear responsibility for an auto accident. Ordinarily, the public is not a party as in criminal proceedings, for it has no interest beyond providing just rules for decision and a forum where the dispute can be impartially and peacefully resolved.
4. It is possible, however, for the government to be involved in civil litigation if it stands in the same relation to a private party as another individual might stand. Thus, if a postal truck should run down a pedestrian, the government might be sued civilly by the injured person; or if the government contracted to purchase supplies that turned out to be defective, it might sue the dealer for damages in a civil court.
5. The objective of a civil action is not punishment or correction of the defendant or the setting of an example to others but rather to restore the parties so far as possible to the positions they would have occupied had no legal wrong been committed. The most common civil remedy is a judgment for money damages, but there are others, such as an injunction ordering the defendant to do, or refrain from doing, a certain act or a judgment restoring property to its rightful owner.
6. Civil claims do not ordinarily arise out of criminal acts. A person who breaks his contract with another or who causes him a physical injury through negligence may have committed no crime but only a civil wrong for which he may not be prosecuted criminally by the public. There are, however, areas of overlap, for a single incident may give rise to both civil liability and criminal prosecution. In some nations, such as France, both types of responsibility can be determined in a single proceeding under a concept known as adhesion by which the injured party is allowed to assert his civil claim in the criminal prosecution, agreeing to abide by its outcome. This removes the necessity of two separate trials. In common-law countries there is no such procedure, even though civil and criminal jurisdiction may be merged in a single court. Two separate actions must be brought, independent of each other. Although there are some courts that handle only criminal cases and others that handle only civil cases, a more common pattern is for a single court to be vested with both civil and criminal jurisdiction. Such is the High Court of England and such are many of the trial courts found in U.S. states. Often these tribunals are called courts of general jurisdiction, signifying that they can deal with almost any type of controversy, although in fact they may not have jurisdiction over certain types of cases assigned to specialized tribunals. Often such courts are also described as superior courts, because they are empowered to handle serious criminal cases and important civil cases involving large amounts of money. Even if a court possesses general or very broad jurisdiction, it may nevertheless be organized into specialized branches, one handling criminal cases, another handling civil cases, another handling juvenile cases, and so forth. The advantage of such an arrangement is that judges can be transferred from one type of work to another, and cases do not fail to be heard for having been instituted in the wrong branch since they can be transferred administratively with relatively little effort.