Judge

A judge or justice is an official who presides over a court. The powers, functions, method of appointment, and training of judges vary widely across different jurisdictions. More generally, a "judge" may be a qualified person who evaluates and passes judgment on something. For example, a judge at a county fair might award prizes to the best cattle or best jam, while dog-show judges at a conformation show determines which of several dogs best meets the breed standards.

Judges in the legal system

Judges are considered to be the leaders of one of the branches of government: the judiciary. In most representative democracies with rule of law, judges are required to be impartial and not influenced by outside factors.

Judges in common law legal systems

In common law countries, judges usually operate within the adversarial system of justice, and usually receive some additional training. American judges are now expected to attend regular judicial education and instruction by other more senior judges. In the law of the United States, judges are generally appointed or elected from among practicing attorneys. Many U.S. states permit non-lawyers to serve as justices of the peace, or as inferior jurisdiction judges, in rural areas, but this practice is generally limited to less serious criminal offenses and small claims.

In the common law system, when there is a jury trial in the trial courts, the jury generally decides questions of fact (guilt or innocence, whether a party was negligent, what the amount of damages should be, etc.) while a single judge decides questions of law (under common-law systems, one of the judge's most important power is to craft jury instructions). In the United States, bench trials are situations in which a single judge decides issues of both law and fact. The only time multiple judges commonly preside in the same trial in U.S. practice is in election cases (and cases challenging the constitutionality of a federal statute when a challenge was anticipated when the legislation was drafted) which are heard by three judge panels of federal judges and are appealed directly to the U.S. Supreme Court.

Historically, in Europe in the Middle Ages, juries often stated the law by consensus or majority and the judge applied it to the facts as he saw them. This practice generally no longer exists. In the United States, however, as affirmed by John Jay, first U.S. Supreme Court Chief Justice, juries have the right and obligation to judge the law as well as the facts, since it is from the People that all powers of government ensue. Unfortunately, most judges do not inform the juries of this fact.

U.S. legal practice also has an institution called a grand jury which is presided over on a day to day basis by a prosecutor, rather than a judge, although it is ultimately under the supervision of a judge. This institution investigates crimes via the subpoena power and screens serious criminal charges to determine if a prosecution is justified.

In common law practice in the United States, appeals are usually decided by a panel of judges, generally three appellate judges chosen at random in an intermediate appellate court and the entire composition of the court in the relevant highest appellate court in the jurisdiction, although decisions made by a subordinate or inferior jurisdiction judge are sometimes reviewed by a single judge.

Judges in civil law systems

In most civil law jurisdictions with inquisitorial systems, judges go to special schools to be trained after graduating with a law degree from a university; after such training they often become investigating magistrate. Thus, judges generally do not have backgrounds as practicing attorneys, even though they are legally trained.

In the civil law system, serious matters are almost always decided at the trial level by at least three judges, and sometimes more, often in combination with lay persons in serious criminal manners, although one of those judges may take the lead in gathering evidence in a case. In civil law systems typically only the equivalent of U.S. small claims and misdemeanors are handled by a single trial judge.

For example, in Finland, there are two kinds of judges in district courts: a legally-trained judge functions as the president of the court, while judges elected for a four-year term from the population, without any special legal training, serve as lay members of the court. Judges in special courts and appellate courts are always legally trained. Lay judges do not function like a common-law jury. In the usual case, three lay judges in district courts hear criminal cases in cooperation with a legally trained judge, each judge – legally trained or not – having an individual vote. Civil cases, however, are heard exclusively by legally trained judges.

In civil law practice, appeals are usually decided by a panel of multiple judges. The highest appellate court in a civil law jurisdiction, often translated "supreme court" in English, is typically organized more like an intermediate appellate court in common law practice, in that decisions are usually made by a panel of judges that does not include all judges who are a member of that court. Also unlike common law practice, judges are typically assigned to appeals in the highest appellate court based on specialties in a particular type of law, rather than at random. Typically the only appellate court in a civil law system in which all members of the court will typically decide a case that will operate in a civil law country is the constitutional court, if any.

Non-judges with judicial authority

Certain non-judges are vested with judicial power by virtue of their political or religious office, or their position as a responsible government employee.

In Japan, police officers can order punishments for minor offenses without approval from a judge. In U.S. military law, military officers can dispense justice for minor military law infractions without holding a court-martial and also preside over courts-martial involving more serious offenses. A number of jurisdictions give mayors of municipalities judicial authority similar to a justice of the peace or magistrate. Many courts with probate jursidiction give court clerks quasi-judicial authority as "registrars" of the court. Members of county commissions and city councils in the United States often have quasi-judicial authority in zoning matters. And, legislators sometimes sit in a judicial capacity, such as when they rule on impeachment charges of governmental officials, and in the United Kingdom, when law lords, who are officially members of the House of Lords, a primarily legislative body, hear appeals in legal casees.

Historically, in the United Kingdom, certain matters, such as annulments of marriages and division of personal property of deceased persons, were the responsibility of eclesiastical courts, in which clergy presided. Many countries, such as Israel and Pakistan and Iran, continue to have religious courts, particularly in matters of family law, that operate in addition to their ordinary courts with full authority to enter legally binding decisions. Other countries, such as Afghanistan under its newly adopted constitution, have a unitary court system in which some judges have primarily secular training, while others judges have primarily religious training.

Authority of Judges

In common law countries, such as the United States, and those with roots in the British commonwealth, judges have a number of powers which do not exist, or are not acknowledged to exist, in civil law legal systems, which collectively make the judiciary a more powerful political force than in civil law countries.

One of these powers is the "contempt of court" power. In a common law system, a judge typically has the power to summarily punish with a fine or imprisonment any misconduct which takes place in the courtroom, and to similarly punish violations of the court's orders, after a hearing, when they take place outside the courtroom. This power, in turn, may be used by common law judges to enforce orders for injunctive relief, which is a court order to take or refrain from taking some particular act, directed at the individual who must do so. This power is a vestige of authority that members of the nobility had when they personally presided over disputes between their subjects. It has the effect of giving common law country judges great power to fashion remedies, such as school desegregation orders and restraining orders directed individuals. Civil law judges, in contrast, outside of specialized courts with narrowly delineated powers, generally lack contempt power or the power to impose injunctive relief.

Another power of every judge in the United States, generally right down to the level of the magistrate, is the power to declare a law unconstitutional and invalid, at least as applied in a particular case. In contrast, most civil law countries limit this power to a special constitutional court, and all other judges are required to follow the enacted laws, even if the judge personally believes those laws to be unconstitutional, in the absence of an order from the constitutional court.

Similarly, in the common law system, cases in which the government is a party or has an interest, known as public law cases, for example, suits claiming violations of civil rights by government officials, are often heard by the same judges who handle criminal cases and disputes between private individuals. In contrast, in civil law countries, only designated judges or quasi-judges (such as the Council of State in France) can hear public law cases, and ordinary judges can hear only criminal cases and cases involving private parties.

Judges in a common law system are also empowered to make law guided by past precedent, or to choose to ignore past precedent as no longer applicable, based on a concept known as "stare decisis" ("to stand by what has been decided"), in cases where no statute or prior case clearly mandates a particular result, and in cases where past precedents, for some reason, no longer appear to provide firm guidance as to the current state of the law. For example, in a case of "first impression" which has never arisen in a publicly reported case in a state, a judge must choose which rule will apply, usually informed by decisions which have been made in similar cases in other jurisdictions and based on the public policies involved. Judges in civil law systems, in contrast, are strictly forbidden from "making law" and, as a general rule, are not bound by or even encouraged to refer to precedents established in prior similar cases.

Civil law judges, likewise, have some powers not usually held by common law judges. Most importantly, a common law judge is usually required to base a decision almost exclusively on the evidence provided by the parties to a case during the course of a trial, or a hearing, or in documents filed with the court. In contrast, a civil law judge frequently has the authority to investigate the facts of a case independently of evidence provided by the parties to that case, in what is known as an "inquisitorial" role.

Symbols of office

Being a judge is usually a prestigious and solemn position in society. A variety of traditions have become associated with the occupation.

In France, during ordinary hearings, judges wear a black gown.

In many parts of the world, judges wear long robes (usually in black or red) and sit on an elevated platform during trials (known as the bench). In some countries, especially Britain, judges sometimes wear wigs. The long wig often associated with judges is now reserved for ceremonial occasions, although it was part of the standard attire in previous centuries. A short wig resembling but not identical to a barrister's wig would be worn in court.

American judges frequently wear black robes. American judges have ceremonial gavels but rarely need to use them to keep order in the courtroom. Instead, American judges have court deputies or bailiffs who help the judge maintain decorum. However, in some Western states, like California, judges did not always wear robes and instead wore everyday clothing. Today, some members of state supreme courts, such as the Maryland Court of Appeals wear distinct dress.

In the People's Republic of China, judges wore regular street clothes until 1984, when they began to wear military-style uniforms, which were intended to demonstrate authority. These uniforms were replaced in 2000 by black robes similar to those worn in the rest of the world.

Titles

In the United States, a judge is addressed as "Your Honor" of "Judge" when presiding over the court. The judges of the Supreme Court of the United States, and the judges of the supreme courts of several U.S. states and other countries are called "justices".

The justices of the supreme courts usually hold higher offices than the justice of the peace, a judge who holds police court in some jurisdictions and who typically tries small claims and misdemeanors. However, the state of New York inverts the usual order, with the Supreme Court of the State of New York being the most important trial court, and the Court of Appeals being the highest court; thus, New York trial judges are called "justices", while the judges on the Court of Appeals are "judges". New York judges who deal with guardianships, trusts and estates are known as "surrogates".

A "senior judge" in U.S. practice, is a retired judge who handles selected cases for a governmental entity while in retirement on a part-time basis.

Subordinate or inferior jurisdiction judges in U.S. legal practice are sometimes called magistrates, although in the federal court of the United States, they are called "magistrate judges". Subordinate judges in U.S. legal practice appointed on a case by case basis, particularly in cases where a great deal of detailed and tedious evidence must be reviewed, are often called masters or special masters and have authority in a particular case often determined on a case by case basis.

Judges of courts of specialized jurisdiction (such as bankruptcy courts or juvenile courts) were sometimes known officially as "referees," but the use of this title is in decline. Judges sitting in courts of equity in common law systems (such as judges in the equity courts of the U.S. State of Delaware) are called "Chancellors".

Individuals with judicial responsibilities who report to an executive branch official, rather than being a part of the judiciary, are often called "administrative law judges" in U.S. practice and commonly make initial determinations regarding matters such as eligibility for government benefits, regulatory matters, and immigration determinations.

Judges who derive their authority from a contractual agreement of the parties to a dispute, rather than a governmental body are called arbitrators, and typically do not receive the honorific forms of address, and do not have the symbolic trappings, of a publicly appointed judge.

In England and Wales (and much of the Commonwealth) judges of the higher courts are addressed as "My Lord" or "My Lady" and referred to as "Your Lordship" or "Your Ladyship". Circuit Judges are addressed as "Your Honour" and all lower judges, magistrates, and chairs of tribunals are addressed as "Sir" or "Madam". Magistrates are still adressed as "Your Worship" in South Africa, mainly by solicitors, but this practice in other Commonwealth countries is nearly obsolete. Masters of the High Court are addressed as "Master". When a judge of the High Court who is not present is being referred to they are described as "Mr./Mrs. Justice N" (written N J). In the House of Lords, judges are called Law Lords and sit as peers.

In France, the presiding judge of a court is addressed to as "Mr./Mrs. President" (Monsieur le président/Madame le président).

Judge: Encyclopedia BETA

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