Comparison Between the American and the British Judicial Power

An imaginary interview with Her Majesty the Queen * What’s your name? * Well, as a matter of fact, my full name is “ Her Most Excellent Majesty Elizabeth II, by the Grace of God, of the United Kingdom of Great Britain and Northern Ireland and of the Other Realms and Territories Queen, Head of the Commonwealth, Defender of Faith, Sovereign of the British Orders of Knighthood ” …, but I am called “ Lizzie ” at home. * What’s your job? * I’ve just told you. I am, by the Grace of God, Queen of the United Kingdom of Great Britain and Northern Ireland, Head Of the Commonwealth, Defender of … * Yes, yes, stop it!

You needn’t say the whole thing again. What I wanted to know is, what do you do? In practice, I mean. * What do I do? I rule the country! * I see. That means that you make the laws of the country, decide about the Kingdom’s affairs, order everybody about … * Well, hem … not exactly. As times are, a Monarch’s powers are rather limited you know. It’s Parliament that makes the laws of the country, … anyway I sign them, once they are made. * Well, better than nothing! But, sure, you do plenty of other very important things, don’t you? * Of course I do!

I open and close Parliament, I appoint the Ministers, declare war, make peace, sign treaties with other countries … * My goodness! What an awful lot of responsibilities! * Responsibilities? Not at all. It’s the government that decides; I just do what I am told to. * In that case I wouldn’t say that you work too hard. * Are you trying to be smart, young man? I am the busiest woman all over the Kingdom, always fussing around, showing up at premieres, inspecting new buildings, visiting foreign countries, receiving visitors at my palaces.

* And how much do you get paid for all that work? * I must manage to live only on eight million pounds a year, and that’s not much, you know. * Not much? It seems an awful lot to me! * Not at all! The cost of living is getting higher and higher. And I have so many expenses! Take my London home, for example. Just to keep the 600 rooms of Buckingham Palace clean, to wind its 300 clocks, to polish its 10,000 windows and to sweep its 5 kilometers of corridors, I need 200 servants, which is more than I can afford! And what with the cost of servants nowadays!

Fancy that, I am obliged to turn to au-pair girls for help. * I see, hard times for a Queen, aren’t they? Now that we have relished the exclusive interview with her Majesty the Queen, we can start our study that will tackle the differences between the British and the American judicial power knowing that they both rely on the Common Law system. It is paramount to say at first that the United States of America started as a bundle of British colonies and remained so until the 18th century when it obtained its independence.

Therefore, Americans have inherited a lot from the British beside their language but that didn’t stop differences from growing between the two systems, especially on the judicial scale. Our study will be divided into two main parts in which we shall depict in the first one the two judicial powers from a neutral point of view while analyzing in the second the differences between the two. 1-1 British judiciary power Before evoking the judicial power, let us portray the British system from a general perspective.

* The United Kingdom (the union of Great Britain and Northern Ireland) is a constitutional monarchy. The monarch reigns but does not govern; this means that the Queen is Head of the State, but her powers are limited by a Parliament of representatives elected by the people. The British Parliament consists of the House of Commons and the House of Lords. * The chief part of the government is the House of Commons which consists of MPs (Members of Parliament) chosen at a General Election. The function of the Commons is to propose, discuss, reject, or pass the laws during a session of Parliament.

British Judicial Power There are no legal codes in the United Kingdom and the law as a whole is made up of a mass of precedents. If a magistrate has to judge a new case, he generally decides on the basis of what has been done in similar circumstances before. The two main branches of the law are civil law and criminal law. Any private claim against a person and any argument about such things as debts, rents, and the tenancy of houses and so on, are dealt with in Civil Courts. On the contrary, crimes or serious offences against the community as a whole are dealt with in Criminal Courts.

Criminal Courts in the United Kingdom include: * Petty Courts or Police Courts: They only deal with small crimes and order only small punishments. The magistrates may not impose expensive fines or send anyone to prison for more than six months. There is no jury in the Police Courts and the magistrates are not trained lawyers but usually well-known local people. * Quarter sessions: In quarter sessions, more serious charges can be tried. The lawyers appearing in this court wear their wigs and gowns, and there is a jury of twelve men and women.

The purpose of the jury is to listen to the evidence of witnesses and to the arguments of the lawyers, and to pronounce a sentence: “Guilty” or “Not guilty”. * Assize Courts: They deal with the most serious charges, such as charges of murder or manslaughter, for which the punishment could be life imprisonment. 1-2 American judiciary power General Idea about the United States of America The United States is a federal union of 52 states. The system of Federal Government is based on the principle that governing power is divided between state and central authority.

The federal government instituted by the Constitution has authority to regulate relations between the states and to engage in activities which a certain state is not competent to do. However the Federal Government cannot interfere with the state’s decisions in the conduct of its internal affairs. It is crucial to note that the Constitution assures individual rights and freedom, which are listed in the ten first Amendments of the Constitution, the Bill of Rights. Moreover the Constitution establishes a three-branch system of federal government which are legislative, executive and judiciary.

This separation of power uses a system of checks-and-balances to prevent any branch from overwhelming the others. American judicial power The judicial branch of the government consists of the Federal Courts in the states and the Supreme Court in Washington. On one hand, the Federal Courts deal with all the cases for which the Federal Government is competent. On the other hand, the Supreme Court whose judges are elected for life, has the power to test the constitutionality of all the laws passed by Congress, as well as of those state laws which seem to be in conflict with the principles of the Constitution.

In the case of conflict between state law and federal law, the supremacy of the latter is assured and state law must yield to federal law. Furthermore, the Supreme Court consists of the Chief Justice of the United States and a number of associate justices fixed by the Congress. The president of the US has the power to nominate the Justices however appointments are made with the advice and consent of the Senate. The Constitution states that the judicial power of the country “shall be vested in one supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish. ” (Article III, §1).

The article III, §2 of the Constitution stipulates that each year the judicial power ought to be practiced in Law and Equity with respect to the Constitution, the Laws of the United States, and Treaties made, or which shall be made. In practice, the only original jurisdiction cases heard by the Court are disputes between two or more states. Nonetheless in all other cases which may begin in the federal or state courts and usually involve important questions about the Constitution or federal law, the Supreme Court has only appellate jurisdiction and almost all of the cases are brought to this Court on appeal.

Now that we have a general idea about the two systems we can clearly view the differences between them as they occur on different scales. 2-1 The Supreme Court The first and most important difference is the Supreme Court which is inexistent in the British system. The Supreme Court was first established by the U. S. Constitution and its rights and powers were set upon the constitution ratification back in 1787. The United States Supreme Court is a separate branch of government that has final jurisdiction over all state and federal courts in the country (Britain did not establish a separate judicial branch until 2005).

Moreover, traditionally, the House of Lords which represent the top legislative body also known as the “court of highest appeal” (Carter 2001 2) was the one presiding over judicial matters. Unlike the U. S. Supreme Court, the United Kingdom's court does not have the power to overturn policies passed by the legislative branch. Some people might compare the Supreme Court with the House of Lords but the judicial functions of the House of Lords are separate from its legislative work, for “…Cases are heard by up to 13 senior judges known as Law Lords” (Carter 2001 9 ) .

Moreover, in Britain the Home Secretary has “overall responsibility for the criminal justice system in England and Wales and for advising the Queen on the exercise of the royal prerogative of mercy to pardon a person convicted of a crime…” (Britannia 2001 1) unlike the US that has an Attorney-General in charge of the legal system in the executive branch. As for the Supreme Court and Federal courts, they serve in the balance of power structure of the constitution. 2-2 Codification of laws Another difference regarding the two systems is based on the codification of laws.

English laws are not officially codified nor published into acts. The outcomes of legal cases that are also known as precedents establish future application of laws. Legal statutes are also published unofficially. The Queen's Office of Public Sector Information publishes a law library of legal statutes. Various commercial publishers also distribute books that compile legal statutes. Unlike in the UK, U. S. laws are codified and often signed by an executive who are represented by the President or the state governor depending on whether it's a federal or state act.

2-3 Balance Of Power Also, the difference in legal systems is strongest in the balance of power development of the U. S. Constitution, which gives the Judiciary control over its own actions, and therefore is not obedient to the Executive or Legislative branches. Federal judge appointments and those to the Supreme Court are originated by the Executive branch and must be approved by Congress. 2-4 Jury Selection On a different scale, trial by jury varies as well between the two systems.

Indeed, the English court system selects jurors randomly and do not cross-examine them to determine whether they are suitable for the task or not. Plus, they are selected based on their socioeconomic or ethnic representation. This aims at forming a jury that is “fair, independent and democratic” (according to the United Kingdom’s Ministry of Justice). On the contrary, the American court system allows attorneys on both sides to analyze and challenge the selection of jurors, for the jury system aims at representing a cross-section of society.

2-5 Criminal Cases English criminal cases receive considerably less attention from professional judges. Over 95 percent of criminal cases are tried in lower courts by part-time, unpaid judges who are not certified to practice law. Only the most serious cases are tried before a professional judge. Civil cases, however, are tried by permanent, certified judges. The U. S. legal system treats both civil and criminal cases equally.

Criminal cases are given just as much priority to Bottom line, we can say that various are the differences between the American and British judicial power especially when it comes to the Supreme Court and the codification of laws. Moreover, the differences are relevant when it comes to balancing of powers, jury selection and criminal cases. References * http://voices. yahoo. com/a-comparison-british-american-legal-systems-366782. html * http://www. supremecourt. gov. uk/ * http://www. uscourts. gov/FederalCourts/UnderstandingtheFederalCourts/FederalCourtsInAmericanGovernment. aspx *.

Sarah from Law Aspect

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