Judges Should not Be Granted the Liberty to Make Laws - Essay Example

R.Preeti 15/8/2007 Law 'Judges should not be in the position of deciding cases in such a way that they are seen to be making law - making law is the function of Parliament only.' Discuss. The Government is the elected body of representative members of the party that comes into power, in a Democracy. It is divided into three organs---Legislature, Executive and Judiciary. The Legislature is the Law-making body of the Government, the Executive is the organ that executes the laws made by the Legislature and the Judiciary is the organ that interprets laws and administers justice. Therefore, it is evident that the efficient working of all the organs of the Governemnt is extremely inevitable for the proper functioning of the Governemnt as a whole. Every organ of the Governemnt has clearly etched out roles, duties and functions, besides the liberties given to each one of them. The Legislature is the prime law-making body and it is called the Congress in the United States. It is divided into two houses---The Senate and the House of Representatives. The Congress passes bills and transforms them into acts and laws, approves or disproves of the appointments made by the President, it declares wars and also gives its consent on treaties. The Executive branch is the one that ensures the execution of laws passed by the Legislature. In the United States, the President is the head of the Executive organ of the Government and performs numerous functions. The most important ones among those functions are, that he is the Commander-in-Chief, he makes appointments in association with the recommendations of the Legislature, he can veto bills and laws; besides ensuring the proper implementations and execution of laws. The Judiciary is the body of the government that undertakes the job of administering justice and taking charge of the criminal and civil offences in the country. In the United States, the Supreme Court is the apex court, which also serves as the highest court of appeal. The other federal courts exercise their functions in accordance with their position in the hierarchal set-up. The Judiciary also interprets laws for the country. In addition to this, it also performs the functions of Judicial Review, which means, it undertakes the task of declaring a bill/act or law unconstitutional, if it goes against the Constitution of the United States. The Constitution of the United States also has a system of Checks and Balances, wherein each organ of the Government is granted autonomy, as well as, responsibility. In other words, one organ of the government can check the other organ, in case it goes beyond its sphere of activity or conducts proceedings in a manner that is outside its power. This way, none of the organs can attain supremacy over the other, in spite of maintaining their exclusiveness in their own realm. It, thus, checks and balances the functioning of all the three organs of the Government. In this process of working together and taking charge of the whole Governmental machinery and functioning, the three organs could sometimes overlap each other in their functioning and cause chaotic situations. The most common possibility of this occurrence is between the Legislature and the Judiciary! Sometimes, it so happens that in the process of interpreting laws that have been made by the Legislature, the Judiciary not only interprets it but also adds its own interpretations and thus, leads to the framing of new laws. This can prove to be quite confusing and disruptive, especially when the Constitution is considered the ultimate law of the land and the Judiciary possesses the utmost capacity to interpret the constitution and the laws made by the Legislature. The judges do continue their tenure till death, in case of non-violation of laws and rules. Due to this, their role in the administering of justice and supremacy gains momentum. During the process of interpreting the Constitution, there are instances when the judge might use his common sense and experience or morality to pronounce the appropriate judgement for the case. This occurs when cases out of the common circumstances, reach the courts. Numerous arguments have been put forth, both for and against the encroachment of the Judiciary into the Powers of the Legislature, by making laws, in some cases. Should judges be allowed to interpret the Constitution according to circumstances and thus, allow their pronouncement of judgements lead to the framing of laws, in competition to the Legislature or should they stick to their original etched out role of administering justice and performing judicial review This can receive numerous views and reviews, from all quarters, with different stances. One of the arguments in favour of judges taking up acts of law-making, is that the laws could be the result of numerous years of experience garnered by the judges a d therefore, could fill in the lacunae in the Constitution, that the Constitution-makers might not have added or foreseen. This way, it adds up to the richness of the Constitution and Laws of the land. In addition to this, future problems of the same sort can be judged on the basis fo these judgements and laws given out by the present judges. However, those who choose to oppose this stance put forth the debate that the organs fo the government should maintain their exclusivity and remain within their own boundaries of functioning. Overlapping functioning can often cause disrespect towards rules and laws already laid down and can give an opportunity for the organs to take control over each other or create utmost chaos by performing a variety of functions, amidst themselves, with no order. A democratic government often needs a transparent system of functioning, in order to cater to the needs and rights of the masses. Therefore, the overlapping and undivided functioning of the organs fo the government might rob the masses of this transparency, they argue. The best solution lies in perhaps finding a middle path to this issue. Judges should not be granted the liberty to make laws, whilst they perform their judicial functions. However, if the situation calls for it and they have no access to laws that could be applied to the circumstance in question, they could work in communion with the Legislature. In spite of this or in case they do not beget the opportunity to contact the law-making body, they could take the situations into their hands and pronounce judgement and laws that emerge from a moral stand and possess an ethical basis. Goodwill and virtuous law-making should occupy the mantle and laws should be aimed at the betterment of the society, at large. References Website: http://encarta.msn.com/encyclopedia_1741500781_1/United_States_Government.html Read More