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Comparative Politics and Government Vinod C.V., Lovely Professional University

Notes
Unit 9: Constitutional Structure: Judiciary

CONTENTS
Objectives
Introduction
9.1 US Supreme Court and Judicial Review
9.2 Judicial Systems of UK, Russia and France
9.3 Federal Tribunal or Federal Judiciary of Switzerland
9.4 Summary
9.5 Key-Words
9.6 Review Questions
9.7 Further Readings

Objectives

After studying this unit students will be able to:
• Explain the US Supreme Court and Judicial Review.
• Know the Judicial System of UK, Russia and France.
• Discuss the Federal Judiciary of Switzerland.
Introduction

The judiciary is probably the most important organ of the government. A country may have a very
good legislature and an excellent executive, but if it does not have an independent and impartial
judiciary its constitution has no significance. The term judiciary is used to designate “those officers of
the government whose function is to apply the existing law to individual cases.” It is the responsibility
of these officers to discover relevant facts in any case and protect the innocent from injury by either
the executive or legislative branch of government. When this is lacking the liberty of the people is in
danger. In fact no civilized state can be envisaged without a judicial organ. Chancellor Kent has
remarked in this regard: “Where there is no judicial department to interpret and execute the laws, to
decide controversies and to enforce right, the government must perish by its own imbecility, or the
other departments of government must usurp powers for the purpose of commanding obedience to
the destruction of liberty.”
The chief function of the judiciary is to administer justice. It decides disputes between individuals
and individuals and the State. In deciding the cases the judges investigate and determine the facts,
after examination of evidence and witnesses, and try to decide the cases according to the existing
laws. But if the case is not covered by an existing law the judges decide the cases on the basis of their
knowledge, commonsense and experience. These decisions serve as precedents to be applied and
followed by others in similar or analogous cases. In such cases the judges perform quasilegislative
functions. It is true that these decisions of the judges are not binding on future decisions, but much
respect is attached to them. In countries like England judicial precedents are an important source of
Law. They are usually termed as ‘judge made law’ or ‘case law’.
The judiciary also acts as the interpreter and guardian of the constitution. In all countries with written
constitutions, the judiciary usually has the power to consider the propriety of the laws of the legislature
and orders and ordinances of the executive and can declare them as unconstitutional or ultra vires if
they are at variance with the provisions of the constitution. This power of the judiciary is termed as
‘power of judicial review’ and first originated in U.S.A. in 1803 when Chief Justice Marshal applied
the same in the famous case of Marbury v. Madison. In short under the power of judicial review, the

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