The political role of the judges in law and politics

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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".

Extraits

[...] The difficulty lies deeper than disagreements about the so-called “intention of Parliament”. First, if particular judges or particular courts consistently interpret certain types of legislation either widely or narrowly they will gain the reputation either of being “progressive”, “socialist” or of being “restrictive”, reactionary”, conservative”. Secondly, many people will simply disbelieve the judges who say that they are concerned only with ascertaining the intention of Parliament. This belief is strengthened when judges express opinions, in the course of their judgements, which seem to show where their sympathies lie. [...]

[...] They also do so by this process of statutory interpretation. When a particular interpretation for example of the Race Relations Acts, which is a very complex Act to interpret is objected to, it is common for the interpretation to be defended on the ground that all the judges can do is to apply the law as made by Parliament and not to improve it. B. Interpreting a statute according to the spirit or according to the letter But if the statute is open to more than one interpretation, then the judges are supposed to discover, by looking at the whole of the law on the matter, including the statute itself, what was the intention of Parliament and to interpret accordingly. [...]

[...] The question of interpretation and judicial creativity: the judge like a law-maker A. The judges “make both in the development of the common law and in the interpretation of statutes It must be remembered that in most cases for most of the time the function of the judge is to ascertain the facts. But when questions of law do arise, their determination may be of the greatest importance because of the effect it will have on subsequent cases. Statute law cannot indeed be a perfect instrument. [...]

[...] The essence of their function is the maintenance of law and order and the judges are seen as a mediating influence. Democracy requires that some groups of persons act as an arbiter not only between individuals but also between governmental power and the individual. Judges then, in this view, operate as an essential part of the democratic machinery of administration. They take their place alongside the other two great institutions of Government and Parliament, more passive than they, but indispensable. [...]

[...] Predictability of the law: condition to democracy. Theoretical bases/causes: the separation of powers and the general will The origin of the traditional view is on one hand the theory of the separation of powers by Montesquieu / check and balances (Locke) and above all, on the other hand, the general will (Rousseau). According to Rousseau law is indeed the result of the general will: MPs are elected by the nation whom they represent. On the contrary, judges are not elected, so, their will is only their own and they must not have too much power. [...]