The judiciary in the US and the UK functions in different ways, however, they both claim to be anchored in democratic principles. The procedures in the American and British legal systems are complex. To the concern of this paper, the adequacy of the judiciary is discussed only in so far as the democratic component is concerned. Knowing that all systems can only be perfectible and that there is always room to challenge, the focus will be on whether the judicial systems are compatible with basic classical democratic foundations and whether they are sustained by legal systems which guarantee fair trial procedures. Accordingly, basic democratic concepts and procedural justice shall be the main theoretical frameworks of this paper.
Classical democratic concepts and Procedural Justice as Measures of Fairness
The current paper presents the judicial systems in the US and the UK. In order to examine how much the systems under study are democratic, the basic classic concepts of democracy are used. There is an examination of the system of check and balance or how the various branches (executive and legislative) check or balance the judiciary and vice versa. Also, how much power and independence the judiciary’s understudy enjoys has been a concern in this paper. These well-known democratic concepts are classic concepts of the French enlightenment.
The other theoretical anchor for this paper is procedural justice. The paper studies indeed if the legal systems endow their judiciaries with enough mechanisms to conduct fair trials. The assumption is that there are always breaches to Law, however, there should be minimum democratic procedures in the conduct of trials. These procedures should be provided for by law because a legal founding is important to the enforcement of democracy in a given country. This theoretic approach is derived from procedural justice theory that studies trial cases from a procedural point of view. Indeed, studies have shown that when procedures are fair, concerned perceive that they have been given fair trials (Korsgaard, 1995).
US Federal Judiciary system: organization and trial procedures
Being a federal country, the United States opted for a two levels judicial system. The judiciary is organized along with a federal level and a state level. Federal Courts have been established by the US Congress as early as the 18th century (FJC, 1964), by virtue of the US Constitution. The then budding state has created such federal courts along with state courts, as it has adhered to federalism in its meta-political system. Most importantly, the judiciary has been set up with a view of establishing a democratic system with separated powers.
The Constitution provides the legal funding for the judiciary. Indeed, Article III, Section 1 of the US Constitution stipulates that “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office” (CRS, 1964). In other words, this Section calls for the creation of Federal courts and details the courts’ degrees so that the federal judiciary comprises a supreme court and inferior courts (all courts whose decisions can be appealed) and whereby judges have life tenure. It is the president who appoints them, with Senate approval (FJC, 1964).
Along with Federal Courts, there exist courts whose jurisdiction is state-wide. State courts can be delineated along with various types, civil/criminal courts, general courts/courts of specialized jurisdiction, and so on and so forth. There is a wide variety of courts because the US legal system covers a large number of matters, even small ones- so as not say trivial; Georgia legislators reportedly called in 2003 for setting up a law that would make not serving sweet tea a felony (Hall, 2004, xvii). Nevertheless, one can graphically differentiate between trial courts and appellate courts. The losing party can always appeal a decision, at the level of his state. The ultimate state-level appeal would be his/her state supreme court. After that, the Federal Supreme Court becomes the final possible stage (Hall, 2004, 196). One should add that unlike in federal courts, the judges in state courts are elected. The election may be direct or via commission, made up of lawyers, legislators, lay citizens, and sometimes judges, which nominate candidates that the State governor must choose from (FJC, 1964).
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Underlying the judicial system in the US, there has been a concern about democracy. The separation and independence of powers is the main philosophical implication of democracy which the system sought to respect. On an inter-state level, this is guaranteed by having a dual system which is meant to ensure that states enjoyed a room of freedom to set up and enforce their own laws (FJC, 1964).
A system of checks and balances has been adopted. Federal judges are appointed by the US President, i.e. the head of the executive, presumably as a measure checking on judicial power (FCJ, 1964). Interestingly, the virtue of having an executive agency, the president, appointing the federal judiciary involves counter-democratic undertakings: appointment rather than election and life tenure which is only downplayed by the possibility of impeachment. This issue of judicial power has been pointed out by such scholars as Robert Dahl (Dahl, 2001); he also questions the fact that federal judges can rule unconstitutional any law or regulation, even if duly approved by the legislature and signed by the president (Dahl, 2001). There has been an attempt to reconcile the issue of judicial review with the assumed democratic foundation of the US legal system as it clearly seemed more of a historically founded practice than democratically justified. The main concern with judicial review within academia has been its contradiction with majority rule- the counter-majoritarian difficulty, a major principle in the US constitution. Many scholars find a problem with the principle of judicial review because it has been manipulated by US presidents (Wittington, 2007) – one can remember the case of 2004 US elections whereby the Supreme Court ruled in favor of George Bush and because it leaves unbridled power in the hands of judges (Nagel, 2005).
There is yet another incoherence in the American judicial system but it is not legal, rather there is a problem in execution. Fair trials are provided for by virtue of the American Bill of Rights (CRS, 1964). However, it is evident that it has not been the case throughout US history. Although the Bill of Rights provides for free trials, its existence did not stop arbitrary trials for all Americans of African-Americans before the great movement of Civil Liberties, back in the 1960s. Since 9/11 this principle has clearly been violated. Various presumed terrorists have not benefited from fair trials. This issue has been leveled by people who work in the field of human rights, notably Amnesty International.
British Unitary Judicial System: organization and trial procedures
Unlike the US, United Kingdom follows a unitary political system, and by extension, the judiciary is regulated by a unitary legal system as well. It is unitary in the sense that it is centralized under a unitarian UK Government; however, there is not one court system in the UK. Wales and England have a common system, Scotland has its own, and so does Northern Ireland (Government, 2009). In this sense, the British constituencies have relative independence but not a total as in a federal state.
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There is a general judicial scheme that is conducted throughout the four constituencies of the UK. In Britain, the judiciary derives its authority from Common Law as well as Statutes (Foster, 2006). The Common Law is based on the principle of stare decisis or precedents whereby judges base their decisions on the long tradition of court precedents.
In terms of fair judicial procedures, the judges apply the literal rule whereby they have to stick to the literal meaning of rules (the literal rule), and stay away from giving their own interpretation. It is a measure to ensure objectivity (Foster, 2006). The literal rule is checked by another rule, the Golden Rule which requires the judge to apply common sense so that literal interpretation is not counter-common sense.
Statute law is on the other hand provided for by the legislation. It is meant to fill in the gaps in Common Law. Statute Law is resorted to, in correspondence to the Mischief Law that requires the judge to refer to Statutes when Common Law does not cover a given case.
Although the law, be it Common or Statute is difficult to interpret, so far, the British judiciary is endowed with a significant amount of mechanisms that ensure fair procedural trials under the above-enumerated rules.
In terms of judiciary power, it must be noted that it is somehow subdued to the executive branch, as it cannot cancel legislative and administrative actions (Drewry, 1992). Whilst this and the lack of a constitution had encouraged calls to adopt a Bill of Rights, it is largely believed that the UK is democratic. It is a parliamentary democracy for judges to manage to exert some check on the other branches of power via the interpretation of Common Law and through judicial review of administrative actions (Drewry, 1992). This latter refers to the fact that although there is no judicial review to the legislative branch in the UK, trial courts have challenged parliament via the declaration of incompatibility. In 2007, 17 declarations have been emitted and all have been retained by parliament (Parliament, 2007).
With the securitization of the judiciary that has swept the west upon 9/11, there has been some tightening on civil liberties notably via the Prevention of Terrorism Act (2005), in a movement that shows that western democracies turn into authoritarianism in times of challenge to power and legitimacy (Foster, 2006). The act allows detention without trial. It is a counter-democratic evolvement in the legal system that has been criticized just like its counterpart in the US.
Comparative assessment
Graphically speaking, both judicial systems are perfectible. In the US system, the Federal judiciary should be reviewed in terms of tenure and appointment. In the British system, there is no Constitution and a lack of judicial review. Despite this, Britain seems the most democratic system. There are many rules by which the judiciary should abide, by all four constituents. In the US, it is up to the states to define their own rules without binding them to one set of judicial rules that would guarantee common democratic principles. This should not mean that the US is undemocratic; there is indeed a bill of rights that stresses fair trials, but it has not always been respected. In the end, both systems have been weakened by the securitization of the legal systems upon 9/11.
The US judicial is a complex one because it covers a federal state. Each state follows its own rules, which may be incompatible. This makes it difficult to give a general appraisal of the American judicial system. In some states there are death penalties, in others, there are not. Such variance makes it difficult to give an overall appraisal of the US court system. Nevertheless, some basic democratic elements are upheld by the Bill of Rights, notably the right to fair trials.
The focus in the paper has been rather on the federal courts because they represent what the judiciary stands for in the US. While examining, one can retain serious setbacks. Whereas the judiciary has the power of review, an important check, and a balance mechanism, the judges are appointed by the Presidents. This paradox saps the very rationale of check and balance. This leaves room for the presidential influence of the judiciary system.
In the case of the British judiciary, the centralized legal system makes it easier to examine the court system. There is a measure of independence among constituencies, as there is a three-court system. Still, the legal system that is followed by all relies mainly on the principle of Common Law. The adoption of Common Law gives a measure of independence to UK judges, in terms of the influence of the legislative branch. Common Law’s democratic component is endorsed by such sub-principles as the Literal Rule and the Golden Rule which guarantee adherence to law but without falling into the trap of sterile interpretation. Whatever gaps are to be found in the Common Law, the Statute Law is meant to fill. This duality of common law and statute secures objectivity and makes up for the lack of a written constitution. This British peculiarity makes up for the Bill of Rights that most Western democracies hold onto.
The weakest element in the UK judicial system is the lack of judicial review. This mechanism is important in a system that adheres to check and balance. The superiority of parliament is checked by the power that judges have to declare incompatibility of parliamentary decisions. These as mentioned, in the paper, are taken seriously by Parliament.
At the end of the review of the studied systems, it remains important to draw attention to the fact that the 9/11 events have undermined the democratic component in both systems. The US Patriot Act and the British Prevention of the Terrorism Act have established detention without trial- a major departure from democratic conduct of trials and detention of suspects.
References
Amnesty International USA. “Fair Trials and Terrorism: Is it really necessary to sacrifice fair trial standards to prosecute terrorism?”, 2009. Web.
Congressional Research Service (CRS), 1964. The Constitution of the United States of America, the Legal Information Institute of Cornell University. 2009. Web.
Dahl, Robert A, 2001. How Democratic is the American Constitution, 1st t edition, Yale University Press.
Drewry, Gavin, 1992. Judicial politics in Britain: Patrolling the boundaries , Routledge.
Federal Judicial Center (FJC), 1964. The U.S. District Courts and the Federal Judiciary. 2009. Web.
Foster, Steven, 2006. The Judiciary, Civil Liberties and Human Rights, Politics Study Guides, Edinburgh Edinburgh University Press.
Government, Official Website (UK), 2009. “Introduction to the Judicial System”, Web.
Hall, Timothy L, 2004. U.S. Legal System, Pasadena, Calif Salem Press.
Nagel, Robert F, 2005. “ Principle, Prudence, and Judicial Power” In The Judiciary and American Democracy, edited by Alexander Bickel, SUNY Series in American Constitutionalism.
Korsgaard, Audrey M, 1995. “Procedural Justice in Performance Evaluation”, Journal of Management.
Parliament, Official Website (UK), 2007. “Relations Between The Executive, The Judiciary And Parliament”. Web.
Whittington, Keith E, 2007. Political Foundations of Judicial Supremacy, Princeton University Press.