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The political role of the judges in law and politics

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  1. Introduction.
  2. The traditional view: The judge like an arbitrator, a mediator.
    1. In the traditional view, the judge must act like a political, economic and social eunuch.
    2. A theoretical view on the theory of separation of powers and on vision of law as expression of general will.
  3. The question of interpretation and judicial creativity: the judge like a law-maker.
    1. The judges 'make law' both in the development of the common law and in the interpretation of statutes.
    2. Interpreting a statute according to the spirit or according to the letter.
  4. The judiciary as a principal organ of democracy.
    1. The British judiciary is much more than just a neutral arbitral force.
    2. The judiciary as one of the principal organs of a democratic society.
  5. Conclusion.
  6. Bibliography.

My presentation is concerned with the relationship between law/the judiciary and politics. The laws relating to civil and criminal wrongs are indeed made either by Parliament in the form of Acts of Parliament (also called statutes) or by the judges themselves (then called the common law). The common law is made as judges decide cases and state the principles on which they are basing their decisions, this accumulation of principles building into a body of law. I have chosen this topic because this relationship between statutes and the common law is very different in France (like in Germany: this is the Rhineland/Germanic tradition of Law) and in the Anglo-Saxon system. One evidence of that is that in French like in German we have two words for Law: one for what is decided in Parliament this is ?la loi? or ?das Recht? in French/German and the law made by judges is ?le droit?, ?das Gesetz?.

[...] Transition: At one time, it was common for judges to agree with the traditional view and deny that they had any creative function at all or, more precisely and more positively, to assert that, in the development of the common law, all they did was to declare it. Actually, if the judicial function were wholly automatic, the making of decisions in the courts would be of little interest. It is the creative function of judges that makes their job important. [...]

[...] While in certain circumstances and on some specific issues particular judges can be shown, from the record of their discussions, to belong more to the creative or more to the conservative school, it is very doubtful whether either tendency follows from one or other general judicial position. II. The judiciary as a principal organ of a democracy: the Judges as a part of the democratic machinery of administration 1 The British judiciary is much more than just a neutral arbitral force I have said in my first part that, traditionally, impartiality is thought of as part of wide, judicial neutrality. [...]

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