Judicial decisions may make law, but they cannot alter the existing law rather may suggest to amend it.

  1. 1.     INTRODUCTION:

Imagine a day in the life of a typical juror. Upon arrival in the court a complex system of rules and procedures that are well rehearsed and well understood by the professionals who work in those setting. In some jurisdictions the rules amplified by the jury selection process.

 In any jury trial, empanelled members must sift through conflicting arguments and evidence presentations and a series of exhaustive jury instructions that frequently involve concept and language unfamiliar to most general people.

 There are various process of juror decision making but, we will discuss about the implementation and mechanism of influence in a new law. An ideal juror is he who can dispassionately listen of the trial evidence is savvy to render a verdict based on rational decision. Various cognitive factor influences in decision making and implementation of law. Every individual think in his unique way which depends on his perception.  Sometimes this decision making process becomes very difficult and haggy. Existing law might be unable to appropriate treatment for proper justification. This situation is very much embarrassing for the juror. If the weight of the trial evidence meets the legal for the legal threshold for finding defendant responsible, the juror will render that verdict. The juror has an independent right for implementation of existing law but if the trial evidence and personal analysis of the juror require any different then what will be the remedy for justification?

  1. 2.     History

a.Justice of king’s Bench

Justice of king’s Bench or Justice of Queen’s Bench there was a judicial position1 within the court under the chief justice. Theking’s Bench was a common Law. The modern argue was founded 1234 in England. In 1828 Henry Brougham a Member of Parliament, complained in Parliament that as long as there were three courts unevenness was inevitable, saying that “It is not in the power of the courts, even if all were monopolies and other restrictions done away, to distribute business equally, as long as suitors are left free to choose their own tribunal” and that there would always be a favorite court which would therefore attract the best lawyers and judges and entrench its position2. The outcome was the Supreme Court of Judicature Act 18732, under which all the central courts were made part of a single Supreme Court of Judicature. Eventually the government created a High Court of Justice under Lord Coleridge by an Order in Council of 16 December 1880. At this point, the King’s Bench formally ceased to exist

The number of Justices at any one time varied; until 1348 it fluctuated between two and four, while between 1349 and 1391 there was only one3.

[1] See in Manuscript collection, inner Temple library, England. Retrieved 26th August 2010, page 247

2 See in Turner , Edition 1977, page 248

3See in Brougham published in1828, page 10

b. Justice in India

South Indian Liberal Federation, was a political party in the Madras Presidency of British India. The party was established in 1917 by T. M. Nair and TheagaroyaChetty as a result of a series of non-Brahmin conferences and meetings in the presidency. Communal division between Brahmins and non-Brahmins began in the presidency during the late 19th and early 20th century, mainly due to caste prejudices and disproportionate representation of Brahmins in government jobs. The party’s foundation marked the culmination of a series of failed efforts to establish an organisation to represent the non-Brahmins n the presidency. During its early years, the party was involved in petitioning the imperial administrative bodies and British politicians demanding more representation for non-Brahmins in administration and in the government. When a diarchial system of administration was established due to the Montagu-Chelmsford reforms, the Justice party took part in presidential governance. In 1920, it won the first direct elections in the presidency and formed the government. During 1920-37, it formed four out of the five ministries and was in power for thirteen out of the seventeen years. It was the main political alternative to the nationalist Indian National Congress in the presidency. It was defeated in the 1937 election and never recovered from the defeat. It came under the leadership of Periyar E. V. Ramaswamy and his Self-Respect Movement4. In 1944, Periyar transformed the party into a social organisation called DravidarKazhagam and withdrew it from electoral politics. A rebel faction that called itself the original Justice party, survived to contest one final election, in 19524.

The party was isolated in contemporary Indian politics by its many controversial activities. It opposed Brahmins in civil service and politics and its attitude towards Brahmins shaped many of its ideas and policies. It opposed Annie Besant and her Home rule movement, because it believed home rule would benefit the Brahmins. The party also campaigned against the non-cooperation movement  in the presidency. It was at odds with Gandhi, primarily due to his praise for Brahminism. Its mistrust of the Brahmin–dominated Indian National Congress led it to adopt a hostile stance toward the Indian Independence Movement. Despite professing to represent the interests of all non-Brahmans, the party eventually lost the support of Muslims and Dalits, who accused it of serving the interests of only a few non-Brahmin castes like Vellalars (Mudaliars and Pillais), BalijaNaidus, BeriChettis, Kapus and Kammas.

4. In India the term “contest” is used to denote participation in an election. The Representation of People Act of 1951, the legislation which governs elections in India uses the term and so does theElectioNCommission of India.“FAQs – Contesting for Elections”.Election Commission of India.Retrieved 18 February 2010.

 The Justice party’s period in power is remembered for the introduction of caste based reservations (affirmative action) and educational & religious reforms. In opposition it is remembered for its participation in the anti-Hindi agitations of 1937-40. The party was responsible for creating Andhra &Annamalai universities and for developing the area around present day Theagaroya Nagar in Madras city. The Justice party and the DravidarKazhagam are the ideological and political predecessors of the present day Dravidian parties like the DravidaMunnetraKazhagam and Anna DravidaMunnetraKazhagam, which have ruled Tamil Nadu (one of the successor states to Madras Presidency) uninterrupted since 1967.

3.  The International law

Codification of considered to be one of the main features of the civil law legal system with its staples jurisdiction France and Germany, as opposed to common law countries. Codification changes the role of judges from legal oracles to reasoning   decision makers and principal interpreters of law. Russia is also part of civil law tradition. Yet the reasoning of judicial decisions plays less important in this country.

Decisions are widely believed to be the backbone of modern western legal tradition with its “rule of Law” manifesto. It distinguishes rational decision making from mysterious practice of solving problem.

What new can be said about judicial reasoning in Russia in compression to Western Europe? Since the early in 1990 Russia strives to become a state ruled by Law.

Apart from manuals of lawyers and rare monographs of interdependence of logic and jurisprudence.  Legal decisions of Russian Courts are seldom and analyzed by scholars. Several publications review decisions of the constitutional Court of Russian Fedaration5

 5. see in to name just a few : Birjukova L.G Legal Options of the constitutional Court of Russian Federation as a source of law, Economy No 11, page 14-23

 Since 2012 judicial reasoning in Russia, Germany, France and England is a subject of research at the faculty of Law of Higher School of Economy. Preliminary result show that, indeed, evens the reasoning of Russian appellate and cassation Courts on Economic dispute is too brief and formal in comparison with German and France6. Russian Court tends to communicate the conclusions with formal citation of handful of articles in the applicable statutes rather than reveal the true reason behind their decisions.

US Supreme Court

6. Extensive English judicial Decisions of high justice are out of comparison as Russian legal system is surely part of civil Law tradition.

4.The Effect of jurisdiction

Supreme Court (and other court) precedents may establish common law, which are legal principles based on judicial decisions. Not all decisions fall into this category, however; many simply interpret or apply existing law. The state and federal Legislative branches have the ability to codify common law into statutes, or enacted law. Only the Legislative and Executive branches can work together to pass legislation or statutory laws. The courts lack authority in this area.

Laws are made by the Congress. Courts, on the other hand, judge cases, comparing the facts of the cases before them with the laws of the land and passing judgment accordingly. They interpret the law.

Under the US Constitution, only the Congress can write laws7. However, the other coequal branches have powers that permit them to take actions that sometimes have an effect similar to writing a law.

The Executive is directed to enforce the laws that Congress passes. In the process of doing that they issue regulations that specify the application of a law and establish legal requirements.

The Supreme Court, among its other activities, appeals based on constitutional grounds. The results of its deliberations may invalidate a law, or specify its interpretation is particular, sometimes rather broad, circumstances in order to ensure that its application is consistent with constitutional requirements.

The initial question is very complex. Thus, any simple answer will be wrong to some degree. That said, here goes. One must start with the separation of powers structure of the Constitution and, therefore, our government: the Legislative branch that makes laws; the judicial branch that interprets, and the Executive branch that enforces the law.

The Constitution is the “law” of the land8; i.e., all laws made by Congress, and actions taken by the other branches must conform to constitutional principles; but it is not the only law. I assume the questioner is referring to interpretations of the U.S. Constitution by the Supreme Court. The interpretations made by the Court are law; they are what the Constitution means, at least until overruled. Thus, together (the Constitution and the interpretations) constitute constitutional law. The Court’s decisions control the actions of the government and the citizen, thus, they constitute laws. To say that only the Constitution is “law” 8is to assign metaphysical content to the term. One cannot separate the Constitution as written from the interpretations made of it in Court decisions. Thus, the important idea is what is meant by the term “law.” In an abstract or metaphysical sense, the Constitution is “the law”, and the Court merely interprets or says what the Constitution has meant (or said) all along. In reality, the Court gives meaning to the Constitution and thus does “make law.”

7 see in Greene E & Bornstein B(2000). Precious little Guidance ‘Jury instruction on damage awards’ page 229

8 see in Jury attitude Law and human behavior , 8th edition, page 31-34

Note that one would say the same of statutes. However, the Congress can overrule the Court’s interpretation of a statute.

Finally, there is a body of common law (federal and state). Common law, which is most of our laws, is judge-made law; e.g., tort law, contract law, criminal law, and evidence to name a few. Much of this has been codified and is now statutory, but much has not been codified. However, the Supreme does not get involved in this body of law unless it contravenes some Constitutional provision. An example is whether hearsay rules of evidence (common law) violate a defendant’s Sixth Amendment rights (Constitutional law). The Court does not say what the common law should be, just whether or not it violates the Constitution. If so, the common law must be changed by the lower courts to reflect the Supreme Court’s constitutional ruling. Rules of procedure are mostly made by courts, but also have in part been codified. But note that procedural law (rules) are often more important than substantive laws (statutes).

 Precedents arise from the legal principles created by a court decision. In general, decisions of higher courts within a system are mandatory precedent on lower courts within that same system. The principle announced in the decision must be followed in later cases. Cases need not be identical or similar to control. The principle announced in a case transcends the particular facts in that case and will be applied to different fact situations. However, a decision may be grounded in the specific facts and will not be applied generally. Knowing the difference is what law school is all about. The process of judicial decision making, the use and role of precedents, constitutional and statutory interpretations, is what a legal education teaches.

 The Supreme Court does not issue laws. The purpose of the court is to interpret the laws, not create them. Making federal law is the responsibility of the Legislative branch, Congress, which comprises the Senate and the House of Representatives. The Supreme Court is the head of the Judicial branch; the Executive branch includes the President, Vice-President and cabinet members.

The Supreme Court only interprets the laws and the Constitution.

 George Washington invited the first Supreme Court to issue opinions advising on laws under consideration by Congress. The court declined to do so, citing the language in the Constitution that limits its jurisdiction to “cases and controversies” and reasoning that pre-enactment advisory opinions would not involve real cases or controversies.

 Since then, a law must be fully enacted before it can come to the court for constitutional review or, in other words, be a real case or controversy affecting real people.

 Technically a court can only “interpret” the laws set forth by the legislature. However, some “activist” courts have taken it upon themselves to give a whole new meaning to the law, effectively enacting one that the legislature never intended.

 Courts do have the power to invalidate laws if they are unconstitutional. Since this power was intended by the founders (see the Federalist Papers) that power can hardly be called “activist.” Moreover, some people insist it is “activism” when the Supreme Court vindicates fundamental freedoms guaranteed in the Constitution. For example, when in 1954, the Supreme Court struck down school segregation laws for violating equal protection guaranteed in the Constitution, many people accused the court of activism because legislatures had failed to do the same.

The term “activist” is therefore a dangerous one to accept as descriptive of the court. In recent years, the conservative majority of the Supreme Court has reversed many long standing judicial precedents by issuing ruling that critics say have no other justifying virtue but that of applying rightwing political preference to all citizens through judicial fiat.

The role of average citizens in this process may have been best expressed by future Supreme Court member Oliver Wendell Holmes Jr. who wrote in 1869 that judges decide cases on “the felt necessities of the times.” In other words, you can expect justices coming from corporate law backgrounds to feel the necessities of the times from the perspective of corporate leaders and justices coming from civil rights backgrounds to see the felt necessities of the times from the perspective of the movement for civil rights they participated in. Justices who gained their seat by political services are likely to see felt necessities of times from the perspective of their sponsors. This is not always true, there are examples in history of exactly the opposite being true, but on today’s court, examples of the justices described above can be found and used to fairly reliably predict how they will rule based on who the litigants are. Human reasoning, after all, takes place in the human context.

5.  Conclusion

 Laws are enacted by the legislature and judicial decisions are made by judges. Judicial decisions acts as a source of Law. Judicial decisions express the views and opinion on behalf of society which influences for creation a new looking and new Law. Judicial decisions are work as the philosophy for new treatment of Law.

 Perhaps, judicial decisions can change existing thinking, existing belief, existing practice, existing exercise and existing perception but cannot alter existing Law rather than suggest for the change or create a new Law.

 BIBLIOGRAPHY

 

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  19. Gowers, Sir Ernest, (1956) A Life for a Life? The Problem of Capital Punishment, London: Chatto and Windus.
  20. Grossman, Steven, (1995-96) “Proportionality in Non-Capital Sentencing: The Supreme Courts Tortured Approach to Cruel and Unusual Punishment”, 84 Kentucky Law Journal, 107.
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  2. Hudson, B,( 2003) Understanding Justice, 2nd edition,Butterworths.

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