It is agreed there is has been a global expansion of judicial power. The literature has generated a number of explanations for this phenomenon.  Choose three (3) possible explanations and discuss which you find most persuasive and why.  Cite relevant cases and examples.

The global expansion of the judicial system in the world has been attributed to various factors including the increase in political influence in decision making in many societies, the need to promote democracy and ensuring the society are living in harmony. The justice system helps to promote peaceful co-existence in the society because they help in addressing the problems facing the society (Rosenberg, 2008). The main cause of the expansion of judicial powers in the world is to balance political powers and prevent them from exploiting their powers in the wrong manner.

According to Hirschl (2003), judicial expansion has greatly been influenced with the spread in democracy. Judicial systems help to promote fair trial for people in the country. Without strong judicial systems, countries are likely to be taken by political leaders backed with the police forces which work to propagate autocratic regimes (Stone Sweet, 2000). The judges help to create systems to ensure that people in the country are served with openness and fairness by the political leaders. According to Romano, Cesare (2005) the formation of the global justice system has also been formed through cooperation between different countries to promote justice and democracy across the globe.

“We live under a Constitution, but the Constitution is what the judges say it is.” Critically discuss this quotation. Do you agree?  Why or why not?  Cite relevant examples and cases.

Saying the Constitution is only dictated according to the stand taken by the judges can easily be Personal ideology, although denied by many judges; it has a significant influence on how the judges make various decisions (Stephenson, Matthew 2006).  When a justice employs attitudinal model, they focus on their ideology and values which makes the decision-making process to fail to fully follow the laws of the set standards by the penal codes in the country.  In this regard, they decide what the actual definition of a constitution (Segal and Albert, 1989). This is mostly employed in countries that employ written constitutions because of the codified nature of the constitution. In their perception, the judges may want to take a given decision but are forced to change to align their decision with the law that the influence by the parties involved in the case (Patapan, 2000). In countries such as U.K, which unwritten constitutions, the constitution is not based on what is said by the judges but rather by the political leaders. Higher courts easily overturn decisions which are made by the judges, in the lower courts, based on their perceptions given the fact they lack the consistency and the required standards.

James Gibson has suggested that judicial decision-making is a “function of what [judges] prefer to do, tempered by what they think that ought to do, but constrained by what they perceive is feasible to do.” What does Gibson mean by this?  Do you agree?  Cite relevant examples.

According to Drobak and North (2008), the judges are rational actors in the judicial system in which they are required to observe the facts presented before making a decision. The judges, when making decisions, focus on reaching a decision that will uphold the rights of the citizens and promote transparency and fairness in the operation of the judicial system. The decision-making process of judges is influenced by their personal values and the laws of the land which they have to comply with when making decisions (Drobak and North, 2008).  James Gibson did not provide as a strategy through which judges should make their ruling or how the judiciary should execute their duties but rather on how the entire system operates. In his writing, Gibson explained the decision-making process embraced by the judges is influenced by their personal values, the system and the need to satisfy every party involved in a given case.

Most of the court systems are reticent when it comes to letting the outer world to understand their inner operations. However, it is important to understand that there is no single best way showing the method that judges use when making their decisions. In trying to help the public understand their operations, courts usually televise their reading sessions, but they do not explain how they arrived at a given decision (Kerby and Banfield, 2013). With the help of court clerks, the judges prepare their ruling which they usually keep away from the public.

Personal ideology, although denied by many judges, it has a significant influence on how the judges make various decisions.  When a justice employs attitudinal model, they focus on their ideology and values which makes the decision-making process to fail to fully follow the laws of the set standards by the penal codes in the country.  In their perception, the judges may want to take a given decision but are forced to change to align their decision with the law that the influence by the parties involved in the case (Dressel and Marcus, 2012). Higher courts easily overturn decisions which are made by the judges based on their perceptions overturned by higher courts given the fact they lack the consistency and the required standards.

A good example is the ruling that was made by in Canada over a new health policy that was to decide on whether to introduce private insurance companies. The justices on the case decided to back the side that was desired by the majority although it was the not the best rational decision. The court only followed the advice of a single expert who argued that the private insurance will not affect the public system over the advice of six other experts who argue otherwise. According to Macfarlane (2014), the decision made by the justices of supporting the healthy policy surpassed any criteria used in determining the soundness of policy. This means they only made the decision based on external influence on the entire process.

Justices are influenced by the need to satisfy what they perceived as the right thing to do when engaging in a decision-making process. According to Widner and Daniel (2008), the justices also focus on safeguarding their image therefore also tend to be influenced by the personal preferences, political affiliation, and temperament. In this regard, the judges are guided by what they ought to do when executing their duties. Because of the perception of their duties as the interpreters of the law and the creators of concession between the members of the public, justices focus on making right decisions to protect their image and confidence of the public.

The entire process involved when making a decision in the judicial system is complex because of the multiple factors that influence the decision. The decisions that are made in the court are influenced by the wide range of factors as well as constrained by the institutional factors. This may include personal motivations, such as political disposition and other constrains such as political powers.

“The written constitution, in the end, is no stronger than the unwritten constitution. The difference is the role of judges in shaping both.”  What is meant by this quotation?  Cite examples from relevant cases.

The written constitution, according to Epstein and Jack (1998), is one that is structured through the definite and systematic process through the representatives of the public. To make the constitution more acceptable in the country, the members of the public are also involved in voting in a referendum. The constitution is prepared by the representative in collaboration with other parties of interest which at the same time incorporating the interests of the public. The written constitution contains the set of laws that guide the making of a decision in the country as well delineates on the roles of the arms of the government.

On the other hand, the unwritten constitution is one that is based on undocumented laws such as customs and traditions. Every constitution has some unwritten aspects which help to make the constitution complete. Although the constitution of the U.S is a good example of a written constitution, is the constitution of the U.S where every aspect of the law is documented in the document and used in the justices system. Many countries across the world work under the written constitution with only a few still holding on to the unwritten constitution. The U.K is one of the countries that have maintained their unwritten constitution where most of the aspects are based on the traditional practices and conventions (LawTeacher, 2013).  Unlike in other countries with the written constitution, in the U.K the law is based on what has been practiced over the years in the country.  The unwritten laws in the U.K are used in all aspects of the government including examining the conduct of the public officials and in the appointment of the successors. The government of U.K is accountable to the parliament which is comprised of the House of Commons and the House of Lords. The parliament engages in structuring and amending new laws which monitor, govern and regulator government operations. Because of its un-codified nature, U.K constitution puts much power on the parliament because it tasked with structuring every law in the country (Popova, 2010). In this regard, the judicial system is rendered defenseless because it is at the mercy of the politicians.

Scholars are divided over how judicial actors make decisions: lawyers favor the legal approach, whereas political scientists favor the attitudinal model. Discuss the relative merits/demerits of each approach. Cite relevant examples.

Deciding the judiciary is faced with a myriad of challenges considering the number of parties that are interested in any given ruling in the court of law. According to Gillman, (2002), juries are influenced by there ideological beliefs when making decisions and the same time they have to ensure that the decision is also acceptable among other parties of interest such as police, lawyers and other judges. In making their decisions, the judges are forced to put various factors into consideration such as the long-term consequences, the outcome of their ruling the interests of other parties. There are primarily two models that judges engage when making their verdict on a given case: legal approach and attitudinal model.

Attitudinal model, according to Herron and Kirk (2003), is the making of decisions based on the values and attitude of the judges. This model is highly advocated by political scientists who believe that judges should be at liberty to making their decisions based on how they think the right way. This model is also perceived as the right method considering the fact that some written rule may be inadequate in a given situations requiring the judges to exercise their discretion.  The attitude and ideologies held by a judge can have a powerful influence on a judge when making a decision more than the law. This is why two judges, a liberal and a conservative judge, are likely to make a varying decision when confronted with a similar situation (Kapiszewski, Gordon and Robert, 2013). This is because a liberal judge is more likely to be influenced by other factors such as attitude and previous experience when deciding while a conservative wholly employees the laws when making a decision.

Attitudinal model is often used when making decisions on cases with political influence. In such cases, the judges may not fully employ the law because they are likely to fully satisfy the issues that come with a given decision. A good example is a case of Bush v. Gore in 2000 where Bush won the case after five conservative judges ruled in his favor. In the case, the judges are politically influenced when making their decision (Cienki,  2004).

Although the attitudinal model is advocated by the political scientists, its accuracy in the decision is usually questioned. The model is criticized as likely to lead to making of varying ruling on similar situations by the judges (Resnik, 2005). Additionally, the method is questioned based on its sincerity because it is difficult to identify the degree of influence the judges get from their attitude. In this regard, it becomes for the judges to reason out why they made a given decision deciding to lack the required rational aspect.

Another demerit of using attitudinal approach when making a decision is the lack of consistency. When the judge in the lower courts make a decision based on their values and attitude, they risk having their decisions overturned at the high courts because of the difference in the attitudes and experience. The use of attitudinal model, according to James and Tom (2014), should be applied at the highest courts where their decisions cannot be overturned. At the highest court, such as the Supreme Court, the judges are not afraid of their job security, and they are not focusing on higher positions in the judiciary, therefore, putting them at the right position to employ attitude and experience when deciding cases.

Legal model, on the other hand, is where the judges make ruling based on the rules and regulations provided under the law. This model is mostly advocated by the lawyers because it only focuses on applying the laws of the country when making judicial decisions (Ginsburg, 2003). Unlike attitudinal model, the legal model is more applicable when making rulings on cases with no political inclination.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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