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PO 315- Judicial Processes

PO 315- Judicial Processes - PO 315 Judicial Processes...

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PO 315 Judicial Processes September 6 Common law system (England, US) - make decisions based on traditions common to the realm - over time, prior situations- precedent - lawyers are skilled at researching prior cases, argue case - legal system where basic law was the product of decades of judicial decisions- “judge-made law” - importance of precedent- “stare decisis” - exalts importance of lawyers and judges as source of law - today, has to do with the way lawyers and judges are taught to reason and their place in society Roman/Civil law system (Continental Europe, South America) - law of highly detailed and explicit codes and statutes - source is monarch/government/legislature - lawyers/judges a civil service-skill set, very different notion of role in society and in lawmaking Federalism- divides power between national government and state government - many more judges/courts/laws Public vs. Private law- - Public: law that governs the relationship between the citizen and the government and the structure of government - Private: governs the relations between two private citizens (usually deals with money) Criminal law vs. Civil law- - Criminal: details the offenses against society and the punishment for those offenses, government is always a party - Civil: deals with private rights between citizens Schools of jurisprudence- neutral judges? Legitimate? Intro to Murphy (p 3-20): - What is the law? o Inherently related to some underlying moral standard OR o Simply the product of human construction Natural Law A putative law’s validity depends not merely on lawmakers’ having followed correct procedures but also on the inherent justice of that “law” 1
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By human nature, most people can reason objectively about what is morally good or bad for themselves and others Judges decide what the moral obligations are, based on people’s natural rights and natural laws Positivism (legal positivism) A law is a law is a law It should be enacted through established procedures by whoever has lawmaking authority in a particular political system Judge: o Observes a similarity between cases o Announces the rule of law inherent in the first case o Applies that rule to the second case - How and under what conditions do judges become more important participants and under what conditions do they become less important? - How do courts and judges operate as they play their various roles? - Natural rights vs. natural law o Natural rights asks: what are my rights as a human being? o Natural law asks: what are my moral obligations to myself and others? - Institutionalization of declaratory theory o Constitution was a fundamental law, and judges must ascertain its meaning, but for all other laws judges had no discretion and “could take no active resolution whatever. They had neither FORCE nor WILL, but merely judgment” (Fed. 78 Hamilton). o
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PO 315- Judicial Processes - PO 315 Judicial Processes...

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