The Major Institutions of the British State - Outline Example

?UK Judges and Their Roles in Political Decision-making Introduction The British Government is one of the oldest forms of political systems which canbe traced back thousands of years ago. Sprouting for an Absolute Monarchical constitution, modern United Kingdom exercises a Parliamentary form of government within a Constitutional Monarchy. Because of such changes in the system compared to what had been many years back, there is already a clear distinction of the roles of the monarch and the rest of branches of the British Parliament. Exercising democracy, each branch performs specific tasks. In the part of the Judiciary, however, its intervention in the legislative is controversial. The participation of the Judiciary branch in political decision-making applies only to the making of a common law, but their primary duty is to interpret the law and make sure that anyone who goes against it will be punished. Separation of Powers The major institutions of the British state would include the executive, the parliament and the judiciary. Each branch works "in the name of the Crown" which is the ruling monarch. Much like the roles of other government types, the branches have the roles of law making, implementation, and evaluation, respectively. However, the influence of a monarch would be the difference. In the Constitutional Fundamentals, the executive "comprises the Crown and the Government, including the Prime Minister and the government" (Anon., n.d). Its duties are to formulate and implement policies that the state and the government itself should abide. The Parliament comprises of the House of Commons and the House of Lords. The members of the House of Lords were unelected and were only appointed by the Crown. The Judiciary, as the term suggests, enacts the law and makes sure that it is properly exercised by every citizen of the nation. The Judiciary is an independent body. The legislature and the parliament should not influence the decisions of the judges and in the same way that the judges are not ought to make political decisions except for common laws. A common law, as the term suggests, comprises of general beliefs of people inspired by tradition, custom, and precedent (Anon., 2008). The status of the U.K. judges nowadays has been vague in terms of enactment of specified roles. As reported by Press Association (2011), former home secretary Lord Michael Howard said that the judges have "too much power" over the ruling of the state. This friction began when the High Court intervened with the Government's plan to pursue the "multibillion-pound secondary school rebuilding programme." Lord Howard said that the judges are expected to stick to their responsibilities as law interpreters and leave the policy making to the executive (Press Association, 2011). This is the same to what Stevens (2005, p.55) stated that since the judges have taken a "more central role in political decision-making," their role as an independent body which exercises "impartiality" is already unreliable. In this note, the roles of the judges should be clarified. However, Peretti (1999) points out three things about judges and their roles in politics (cited in Cross, 2000, p.18). Peretti (1998) argues that "1) judge makes decisions based on their politics and not on some neutral principles of law; 2) that judges are not particularly independent of the influence of legislatures and hence must tailor their decisions to congressional politics; and 3) that this situation is a very good thing” (cited in Cross, 2000, p.18). Clearly, Peretti (1999) discloses that there should be a point in which the law-making body and the Judiciary could merge. The law states that there is a definite separation of power in all three branches, where the Judiciary acts as an interpreter of the law. Because of this, “Judges are independent from the police and the government, and cannot be told what to do, or have their decisions changed by ministers” (Directgov, n.d.). In reality, the opposite of expected outcomes persists. The manner of being one of the judges may have contributed to this outcome. Judges in England and Wales are not elected, but appointed by the Judicial Appointments Commission. Other Judges were selected by the Prime Minister, as he has the power to do it. In this case, it can be assumed that the Judges selected by the Prime Minister hold the same principle and stand on different political issues. In the United States, Judges are also chosen by the President, as the head of state. Williams (1998, p.184) came to an argument that Judges are chosen by the President or the Prime Minister himself, the more likely it is for the judge to be influenced on political decision-making. On the sentencing process, the influence of politics on judges will be most relevant since they are going to decide what is constitutional or unconstitutional; but the influence ends with the process. The final decision would be entirely for the judge to make (Roberts, 2003, p.299). This is perhaps what Dworkin (cited in Loh, 1984, p.685) argues, that judges should base their decisions on “arguments of principle” instead of “arguments of policy.” To put it into concrete terms, take for example a judge who is currently facing a hard case to decide. In his decision making process, he is most likely to consider his learned interpretations of the law and he would make it fit to the present case. What is constitutional and consistent to the existing laws is the primary basis of the judge’s decisions. In this note, one might ask whether or not the judges are allowed to make policies considering that they are the ones who will tell what is constitutional and what is not. Although they are not allowed to intervene with the law-making body, it is not preventable for them to do so, since they are highly influenced with the one who appointed them. It is the same way with decisions basing on political grounds. The nature of Dworkin’s jurisprudence provided a distinction between “policy and principle [and] the notion of adjudication as a principled activity” (Duxbury, 1997, p.294). Based on this statement, it can be said that although the judges are not expected to dictate political decisions, the making of common law is allowable since it is basing on social principles such as traditions and culture. According to Keruish (1992, p.97), in order to fully practice the principle of Dworkin’s jurisprudence, the judges might as well disregard the objectivity of law based on norms, and that the society should be a common basis of making these laws, according to people’s lives. On the other hand, Keruish (1992, p.97) is concerned about the impartiality of making court decisions if laws should be based on the common principle of people rather than objectivity. Diversity of societies may indeed be a problem in enacting this theory. The differences of culture would show different levels of concern towards fellow human beings, and that alone would make law-making a problem, in as much as making decisions during court hearings. Social norms are inconsistent and it should be looked upon if the government is persistent in using Dworkin’s law theory. It is well stated that judges, whether coming from the Supreme Court or in the lower courts, are not allowed to make decisions based on political grounds (Dworkin, 1985, p.9). Nevertheless, they do it. This is because there is a blurry distinction between technical and political grounds. Conclusion The Judiciary system, as well as the other two branches of the British government is provided by roles in which each has autonomy. The interference of the judges in making the rule of law counts as something influenced by the people who appointed them. Even if they are not allowed to intervene on legislature making, they still do it believing that their decisions are not founded within political grounds. Knowing this, it is safe to say that the extent to which judges’ decisions are based on political grounds is indefinite because they generally are not aware that they are actually exercising political decisions. References Anonymous, n.d. Constitutional fundamentals. [Online] Available at: http://www.londoninternational.ac.uk/current_students/programme_resources/laws/subject_guides/public_law/public_ch4.pdf [Accessed 25 May 2011]. Anonymous, 2008. Common law. New World Encyclopedia, [Online] 05 Nov. Available at: http://www.newworldencyclopedia.org/entry/Common_law [Accessed 25 May 2011]. Cross, F.B., 2000. The politics of judges. Court Review, [Online] Available at: http://aja.ncsc.dni.us/courtrv/cr37/cr37-2/CR37-2Cross.pdf [Accessed 25 May 2011]. Directgov, n.d. The role of judges. [Online] Available at: http://www.direct.gov.uk/en/CrimeJusticeAndTheLaw/Thejudicialsystem/DG_181788 [Accessed 25 May 2011]. Dworkin, R., 1985. A matter of principle. MA: Harvard University Press. Duxbury, N., 1997. Patterns of American jurisprudence. Oxford: Oxford University Press. Kerruish, V., 1992. Jurisprudence as ideology. London: Routledge. Loh, W.D., 1984. Social research in the judicial process: cases, readings, and text. USA: Russel Sage Foundation. Press Association, 2011. Judges have too much power, says Howard. [Online] 26 Jan. Available at: http://www.yell.com/solicitors/blog/judges-have-too-much-power-says-howard/ [Accessed 25 May 2011]. Roberts, A.R., 2003. Critical issues in crime and justice. London: SAGE. Stevens, R., 2005. The English judges: their role in changing constitution. OR: Hart Publishing. Williams, A., 1998. U.K. government and politics. OX: Heinemann. Read More