However, in order for judges to discover this intention, they would be guided by their own interpretation of what words mean in order to find the meaning of the legal text. This means that ‘mental make-up’ of a judge would have an influence from the very outset irrespective of how a decision is taken in a case later on. 3 2 Critical legal studies scholars’ criticism Critical legal studies scholars seek to transform society in its entirety. This is achieved by remaining outside the law and rather participating in ‘legal insurgency’ in order to illustrate the political bias which exists the legal system. They argue that formalism cannot be as flexible as many imagine it to be and that techniques of legal reasoning which were used cannot justify more than one outcome.
Game theory tries to prove that the justices will act strategically when trying to grant writs according to their ideology. In “Strategic Auditing in a political Hierarchy”, Cameron, Segal, and Songer are specifically looking at search and seizure cases from 1972 to 1986, and the writs that were granted by Supreme Court. The study could not account for the district court, but it could account for the circuit and supreme court. In the judicial common space, doctrinal compliance occurs when the lower court conforms to doctrine set by the higher court. In terms of doctrinal conformity, the supreme court decision can still conform to doctrine, but not conform to the decision they passed.
According to the rule of law, courts are better protector of individual liberty. Courts adjudicate dispute and exercise check and balance on the executive. Hence, judiciary independence is the heart of democratic system which earns the confidence of public. While there lacks a written constitution safeguarding judicial independence, the court is protected by various ways such as statute , parliamentary protection and common law. The maxim nemo Judex in causa sua state that no one shall be the judge of his own cause provides the rules against bias.
My Judicial Philosophy: Minimal Extrapolation Non-Originalism The two main prevailing legal philosophies when it comes to constitutional interpretation are originalism and non-originalism. Originalists believe in interpreting the constitution based directly on the framers’ intent when writing it and other Amendments while non-originalists view the Constitution in the context of the time it is applied, referring back to the spirit of the framers’ intent, not the intent itself. Both these ideologies alone are seriously flawed and no one would ever argue that historical intent alone or modern context and consequences alone would lead to smart legal opinions. The intent of the Second Amendment, for example, was derived from the Lockean ideals
The first essay he talks about the importance for the judiciary system to be separated from the legislative and executive, while the second was his conclusion of how the system should work. He concluded that the judiciary system should be empowered to enforce the laws passed by the congress. In Hamilton’s vision, the judiciary was the weakest of the three branches of the government, through this idea, this branch should be independent, and avoiding the corruption or interference of the other branches in the decisions, according to Hamilton the branch had "neither force nor will but merely judgment." The idea of separating branches in a government makes it work in a better way. That does not mean that there will be interference between branches, but ensure a fairer relation.
Thus, there is the aspect of sovereignty of every government. “The doctrine of eminent domain stems from the sovereignty inherent in every government and it can thus be argued that it is not necessary to recognise the government’s power to acquire property for public use within the law” (Meltz, Merriam & Frank, 1998 ). However, the doctrine of eminent domain collides with individual property rights of citizens in a country, but there has always been the need to recognize it and establish its limitations. ← The first point of support for the doctrine of eminent domain in the constitution. “The Fifth Amendment to the US Constitution requires that property taken for public use must be compensated justly.
What is Judicial Activism? Judicial activism is when courts do not confine themselves to reasonable interpretations of laws, but instead create law. Alternatively, judicial activism is when courts do not limit their ruling to the dispute before them, but instead establish a new rule to apply broadly to issues not presented in the specific action. "Judicial activism" is when judges substitute their own political opinions for the applicable law, or when judges act like a legislature (legislating from the bench) rather than like a traditional court. In so doing, the court takes for itself the powers of Legislature, rather than limiting itself to the powers traditionally given to the judiciary.
Equity Definition of equity: Equity is a specific set of strict legal principles devised and managed by the Court of Chancery to complement the rules and procedures of the common law. It is available to people who found no impartiality in the common law courts. Equity was intended to establish the truth of the matter and also to levy an unbiased solution. When existing laws do not provide a solution, equity will help obtain a fair result. Maxims of equity: The maxims of equity may be described as a set of general principles, which are said to rule the way in which equity works.
The seventh amendment was designed in such a way that it not only limited the powers of the Federal Government but also the Judicial Branch. Seventh Amendment and the Purpose In certain civil cases, the seventh amendment assures the right of the guilty to a jury trial and also states that these certain trials are not subject to re-evaluation or re-examination by any other court. The importance of this amendment, however, surpasses its obvious characteristics and broadens to other areas of the American Jurisprudence. The clear distinction between a jury and a judge is among the key specifications of the seventh amendment. This distinction in the law is termed as functions.
The judicial branch in Canada is a key element to the division of power. The judiciary branch is an uninfluenced and independent from the legislative and executive branch, the judges are appointed by the Prime Minister and their role is to interpret and apply the laws of Canada as written in the Canadian Constitution. There are two essential principals in modern democracy; the rule of law (La primauté du droit) and the separation of powers (Lampron p. 218). The rule of law is the idea that no one is above the law. This theory allows for a healthy democracy as authority must practice is powers legitimately and in accordance with written and publically adapted laws.