Courts of general jurisdiction

Although there are some courts that handle only criminal cases and others that deal with only civil cases, a more common pattern is for a single court to be vested with both civil and criminal jurisdiction. Examples of such courts include the High Court of Justice for England and Wales and many of the trial courts found in U.S. states. Canada is an instructive example, because the federal government has the exclusive authority to legislate criminal laws, while the provinces have the authority to legislate civil laws. Virtually all cases, criminal and civil, originate in the provincial courts. Often these tribunals are called courts of general jurisdiction, which signifies that they can handle almost any type of controversy, though in fact they may not have jurisdiction over certain types of cases assigned to specialized tribunals (e.g., immigration cases). Often such courts are also described as superior courts, because they are empowered to handle serious criminal cases and important civil cases involving large amounts of money. In addition, most high appellate courts (e.g., the U.S. Supreme Court and the courts of last resort in the U.S. states) are courts of general jurisdiction, hearing both civil and criminal appeals.

Even if a court possesses general or very broad jurisdiction, it may nevertheless be organized into specialized branches, one handling criminal cases, another handling civil cases, another handling juvenile cases, and so forth. The advantage of such an arrangement is that judges can be transferred from one type of work to another, and cases do not fail to be heard for having been instituted in the wrong branch, since they can be transferred administratively with relative ease.

Courts of limited jurisdiction

There are many kinds of specialized tribunals, varying from country to country. Some deal only with the administration of the estates of deceased persons ( probate courts), some only with disputes between merchants (commercial courts), and some only with disputes between employers and employees (labor courts). Many of the constitutional courts of the democracies that emerged in the 1990s in central and Eastern Europe also have limited jurisdiction, confined to disputes grounded in the constitution. Although all these courts are courts of limited jurisdiction, they may exercise substantial power.

Appellate courts. 

The tribunals described thus far are trial courts or “courts of first instance.” They see the parties to the dispute, hear the witnesses, receive the evidence, find the facts, apply the law, and determine the outcome.

Appellate courts are positioned above the trial courts to review their work and to correct any errors that may have occurred. Appellate courts are usually collegiate bodies, consisting of several judges instead of the single judge who typically presides over a trial court. The jurisdiction of the appellate courts is often general; specialized appellate tribunals handling, for example, only criminal appeals or only civil appeals are rare though not unknown (e.g., the U.S. state of Texas has separate “supreme courts” for civil and criminal cases). The Conseil d'État of France and the Federal Constitutional Court of Germany, mentioned above, are also specialized judicial tribunals.

National judicial systems are organized hierarchically. At the lowest level, there are numerous trial courts scattered throughout the country; above them are a smaller number of first-level appellate courts, usually organized on a regional basis; and at the apex is a single court of last resort.

Appellate review is rarely automatic. It usually must be sought by a party aggrieved by the judgment in the court below. For that reason, and because an appeal may be both expensive and useless, there are far fewer appeals than trials and, if successive appeals are available, as is often the case, far fewer second appeals than first appeals.

Because the principle of due process generally creates a right to at least one review by a higher court, intermediate appeals courts are typically obliged to hear the cases appealed to them. High courts, like many state supreme courts and the U.S. Supreme Court, are not obliged to hear any particular case, and, in fact, they issue decisions in only a tiny fraction of the cases appealed to them.

There are three basic types of appellate review.

The first consists of the retrial of the case, with the appellate court hearing the evidence for the second time, making fresh findings of fact, and in general proceeding in much the same manner as the court that originally rendered the judgment under appeal. This “trial de novo” is used in common-law countries for the first stage of review, but only when the trial in the first instance was conducted by an “inferior” court—one typically staffed by a part-time judge empowered to try only minor cases and keeping no formal record of its proceedings.

The second type of review is based in part on a “dossier,” which is a record compiled in the court below of the evidence received and the findings made. The reviewing court has the power to hear the same witnesses again or to supplement their testimony by taking additional evidence, but it need not and frequently does not do so, being content to rely on the record already made in reaching its own findings of fact and conclusions of law. This type of proceeding prevails generally in civil-law countries for the first stage of appellate review, even when the original trial was conducted in a superior court staffed by professional judges and empowered to try important or serious cases.

The third type of review is based solely on a written record of proceedings in the court or courts below. The reviewing court does not itself receive evidence directly but concentrates its effort on discovering from the record whether any errors were committed of such a serious nature as to require reversal or modification of the judgment under review or a new trial in the court below. The emphasis is on questions of law (both procedural and substantive) rather than on questions of fact, and the court typically requests briefs by the litigants delineating their views on the legal issues (including the relevant precedents) at stake in the case. This type of review prevails both in civil-law and common-law countries at the highest appellate level. It is also used in common-law countries at lower levels when the appeal involves a judgment of a superior court. The purpose of this type of review is not merely to ensure that correct results are reached in individual cases but also to clarify and expound the law in the manner described earlier (i.e., the creation of precedents). Lower courts have little to do with the development of the law, because they ordinarily do not write or publish opinions. The highest appellate courts do, and it is their opinions that become the guidelines for future cases.

Constitutional courts

The democratic transition that occurred in many parts of the world in the late 20th century resulted in the proliferation of courts charged with constitutional (constitutional law) adjudication, though the formal powers of these high courts vary considerably from one country to another. Some are specialized courts of constitutional review, usually called the constitutional court or constitutional tribunal (e.g., Spain, Portugal, Italy, Germany, and Greece); others blend the functions of judicial review of legislation and cassation, or the review of lower-court decisions (e.g., Ireland, the United States, Denmark); and still others exercise only the power of cassation (France, Belgium, Luxembourg, and the United Kingdom). Some countries have multiple high courts with various functions and powers. Italy, for example, has a Constitutional Court with the sole power to exercise constitutional review and a Supreme Court of Cassation with the power to review the decisions of ordinary courts for consistency with the law. Egypt also maintains a Court of Cassation that monitors the uniformity of lower-court fidelity to the law, but only its Supreme Constitutional Court has the authority to declare laws unconstitutional and to determine and rule upon legislative intent. In Japan (Japanese law) the Supreme Court is the only court explicitly permitted to exercise judicial review. Its authority is limited to cases involving conflicting parties and therefore does not entertain questions brought by government officials. The role orientation of the Japanese judge and judicial system is conflict resolution; as such, the courts are reluctant to exercise judicial review or engage in judicial activism. In most systems, the power to strike down acts of the national legislature is centralized in a specialized tribunal; in a small number of countries, including Portugal and the United States, it is decentralized, or “diffused,” with every court empowered to exercise judicial review over legislation.

The precise circumstances under which a national high court can exercise the power of judicial review also vary considerably. Some courts, exercising what is called “concrete” judicial review (incidenter, or a review incidental to deciding a case), can strike down legislation only in a particular case. Other courts are empowered to engage in “abstract” judicial review (the review of a law on constitutional grounds without application to a particular pending case). Of the courts with the power of abstract review, some can exercise it prior to a statute's taking effect (i.e., a priori review), while others exercise it only after the law has taken effect (a posteriori review). Many of the architects of the constitutions of the democracies that emerged in the 1990s in central and eastern Europe opted for a strong, centralized form of judicial power, with the power of judicial review residing in a constitutional tribunal, typically with the power to engage in both abstract and concrete review. Constitutional courts in France and Germany may exercise abstract judicial review. Arguably, Portugal's constitutional tribunal has the greatest jurisdiction, exercising both concrete review of lower-court decisions and abstract review of all laws and legal norms. The U.S. Supreme Court avoids advisory opinions and therefore does not engage in abstract judicial review.

Courts in federal (federalism) systems

Many countries, such as the United Kingdom, France, and Japan, have unitary judicial systems in which all courts (i.e., regular courts as distinguished from administrative bodies) fit into a single national hierarchy of tribunals along the lines just described. Other countries, organized on a federal basis, tend to have more complicated court structures, reflecting the fragmentation of governmental powers between the central authority and local authorities. In the United States, for example, there are 51 separate judicial systems, one for each state and another for the federal government. To a limited extent, the jurisdiction of the federal courts is exclusive of that exercised by the state courts, but there are large areas of overlap and duplication. Unless state laws or state constitutions conflict with national laws or the national constitution, state courts are the final arbiters of the meaning of state law. At the top level is the Supreme Court of the United States, which hears appeals not only from the lower federal courts but also from state courts insofar as they present federal questions arising under the Constitution of the United States or under federal statutes or treaties. If a case in a state court involves only a question of state law—for example, the interpretation of a state statute—the ultimate authority is the state supreme court, and no appeal is possible to the U.S. Supreme Court.

Court structure in a federal form of government need not be as complicated as that in the United States. It is possible to have only one set of courts for the country, operated by the central government and handling all cases that arise under state law as well as federal law. Germany is also a federal republic, dividing power between the federal and state systems. At the national level, there are five supreme courts and one constitutional court. The supreme courts represent separate jurisdictions (civil and criminal, general administrative, employment and trade-union disputes, social policy, and financial matters and taxation).

Another possibility is for each state or province to have its own system of courts, handling all questions of federal as well as state law, and for the central government to maintain only a single supreme court to decide questions as to the relationship of the central authority and the local authorities or as to the relationship between the local authorities themselves. This pattern is found in Canada and Australia.

Another complication resulting from a federal form of government is that questions involving conflict of laws arise with great frequency. Such questions concern the choice to be made between the law of one jurisdiction and that of another as the rule for a decision in a particular case. Even in a unitary system, such problems cannot be avoided; for example, a court in the United Kingdom may be called upon to try a case arising from a transaction that took place in France and to decide whether British or French law should govern. Such problems arise much more often, however, in federal systems, where laws differ from state to state and people move about very freely. Their activities in one state sometimes become the subject of a lawsuit in another, and the court is required to decide which law should apply.

Judges

A court is a complex institution that requires the participation of many people: judges, the parties, their lawyers, witnesses, clerks, bailiffs, probation officers, administrators, and many others, including, in certain types of cases, jurors. Nevertheless, the central figure in any court is the judge.

The role and power of judges vary enormously, not only from country to country but often within a single country as well. For example, a rural justice of the peace in the United States—often untrained in the law, serving part-time, sitting alone in work clothes in a makeshift courtroom, collecting small fees or receiving a pittance for a salary, trying a succession of routine traffic cases and little else—obviously bears little resemblance to a justice of the Supreme Court of the United States—a full-time, well-paid, black-robed professional, assisted by law clerks and secretaries, sitting in a marble palace with eight colleagues and deciding at the highest appellate level only questions of profound national importance. Yet both persons are judges.

Lay judges

In most civil-law countries, judges at all levels are professionally trained in the law, but in many other countries they are not. In England, part-time lay judges greatly outnumber full-time professional judges. Called magistrates or justices of the peace (justice of the peace), they dispose of more than 95 percent of all criminal cases and do so with general public satisfaction and the approbation of most lawyers (see magistrates' court). Professional judges handle only the relatively small number of very serious crimes; most of their time is devoted to civil cases. England places unusually heavy reliance on lay judges, but they are far from unknown in the courts of many other countries, particularly at the lowest trial level. This was also true in the former Soviet Union and remains so in the United States. In some countries of the Middle East (e.g., Israel and Iran), lay judges constitute religious courts and are selected for service on the basis of their knowledge of and fidelity to nonsecular rules and laws. In Finland, panels of lay judges sit with credentialed judges in district court criminal cases (and also may be used in some civil cases pertaining to domestic issues). The Japanese enacted legislation in the early 21st century to introduce lay judges into the country's legal system. There is considerable diversity in the way lay judges are chosen and used in judicial work. In the United States, for example, lay judges are popularly elected for limited terms, whereas in England they are appointed by the lord chancellor to serve until retirement or removal. In England, lay judges serve intermittently in panels on a rotating basis for short periods, whereas in the United States they sit alone and continuously. In South Africa, lay judges (called assessors) always sit with professional judges; in England, they sometimes do; and in the United States, they never do. In some developing countries, many judges at all levels have little formal legal training. Sometimes they are religious authorities rather than lawyers, since in many countries religion and secular government are not sharply differentiated and the law derives from religious doctrine. The vast majority of countries that use lay judges at the lowest trial level, however, insist upon professionally trained judges in trial courts of general jurisdiction and in appellate courts.

Professional judges in the civil-law (civil law) tradition

Professional judges in civil-law countries are markedly different in background and outlook from professional judges in common-law countries. Both have legal training and both perform substantially the same functions, but there the similarities cease. In a typical civil-law country, a person graduating from law school makes a choice between a judicial career and a career as a private lawyer. If he chooses the former and is able to pass an examination, he is appointed to the judiciary by the minister of justice (a political officer) and enters service. His first assignment is to a low-level court; thereafter he works his way up the judicial ladder as far as he can until his retirement with a government pension. His promotions and assignments depend upon the way his performance is regarded by a council of senior judges, or sometimes upon the judgment of the minister of justice, who may or may not exercise his powers disinterestedly and on the basis of merit. The Japanese system epitomizes this process. The path to legal success is very narrow, providing little room for error in terms of formal education, legal practice, and judicial experience. In Japan, as in the vast majority of civil-law systems, the civil-law judge is a civil servant.

Professional judges in the common-law (common law) tradition

In common-law countries, the path to judicial office is quite different. Upon completion of formal legal education, a person typically spends a significant amount of time in the private practice of law or, less commonly, in law teaching or governmental legal service before becoming a judge. Judges are appointed or elected to office; there is no competitive examination. In England the appointive system prevails for all levels of judges, including even lay magistrates. Appointments are primarily under the control of the lord chancellor, who, although a cabinet officer, is also the highest judge of the United Kingdom. Judges are kept surprisingly free from party politics. In the United States, the appointive method is used in federal courts and some state courts, but ideological and partisan considerations—particularly at the federal level—play a very significant role in appointments to the bench. In the United States, all appointments to the federal bench, and many appointments to the state judiciary, are made by the chief executive (president or governor), though these appointments are generally subject to legislative approval. In many states, however, judges are popularly elected, sometimes on nonpartisan ballots, sometimes on partisan ballots with all the trappings of traditional political contests. A third method of judicial selection, devised in an attempt to de-emphasize partisan considerations (and to give more power to the organized bar) while maintaining some measure of popular control over the selection of judges, has grown in popularity. Called the Missouri Plan, it involves the creation of a nominating commission that screens judicial candidates and submits to the appointing authority a limited number of names of persons considered qualified. The appointing authority must select from the list submitted. The person chosen as judge then assumes office for a limited time and, after the conclusion of this probationary period, stands for “election” for a much longer term. The judge does not run against any other candidate; rather, he is judged only against his own record. The ballot, called a retention ballot, often simply reads “Shall Judge X be retained?” In practice, few judges are removed from office through retention ballots. These different selection systems strike different balances between the principles of democratic accountability and judicial independence.

In common-law countries, a person does not necessarily enter the judiciary at a low level; he may be appointed or elected to the country's highest court or to one of its intermediate courts without any prior judicial experience. Indeed, even courtroom experience is not a prerequisite for a judgeship in the United States. There is also no regular pattern of promotion, and judges are not assured of a long tenure with ultimate retirement on a pension. In some courts, life tenure is provided, sometimes subject to mandatory retirement at a fixed age. In others, tenure is limited to a stated term of years. At the conclusion of his term, if not mandatorily retired earlier, the judge must be reelected or reappointed if he is to continue.

While in office, common-law judges enjoy greater power and prestige and more independence than their civil-law counterparts. A common-law judge, who occupies a position to which most members of the legal profession aspire, is not subject to outside supervision and inspection by any council of judges or by a minister of justice; nor is he liable to be transferred by such an official from court to court or from place to place. The only administrative control over common-law judges is exercised by judicial colleagues, whose powers of management are generally slight, being limited to matters such as requiring periodic reports of pending cases and arranging for temporary (and usually consensual) transfers of judges between courts when factors such as illness or congested calendars require them. Only judges who misbehave very badly (e.g., by abusing their office) are in danger of disciplinary sanctions, and then usually only by way of criminal prosecution for the alleged misdeeds or by legislative impeachment and trial, resulting in removal from office—a very cumbersome, slow, ill-defined, inflexible, ineffective, and seldom-used procedure. Some parts of the United States have developed more expeditious methods of judicial discipline, in which senior judges are vested with the power to impose sanctions on erring colleagues ranging from reprimand to removal from office. They are also vested with the power to retire judges who have become physically or mentally unfit to discharge their duties.

The ultimate act of discipline is impeachment. In the United States, federal judges may be removed from office based upon an impeachment by the House of Representatives and a conviction by the Senate. Very few judges have been either impeached or convicted (one associate justice of the Supreme Court, Samuel Chase (Chase, Samuel), was impeached but was not convicted). In other parts of the world, including Latin America, impeachment has been institutionalized. In Argentina, for example, a magistrate council investigates judicial misconduct and may remove judges from office.

Except at the very highest appellate level, common-law judges are no less subject than their civil-law counterparts to appellate reversals of their judgments. But appellate review cannot fairly be regarded as discipline. It is designed to protect the rights of litigants; to clarify, expound, and develop the law; and to help and guide lower-court judges, not to reprimand them.

Other judicial officials

In most countries, there are other officials who serve the court. Court clerks, who are responsible for case records and documents, and bailiffs, who are in charge of keeping order, are found in most judicial systems. Also prevalent are officers who prosecute cases in the government's name: states attorneys and district attorneys in the United States, procurators-general in the former Soviet Union, and procureurs généraux in France.

Probation officers are found in many countries, including the United States and Japan. Notaries (notary) in France and Italy have greater powers than their counterparts in the United States. In fact, they perform many services carried out by lawyers in the common-law system, such as drafting and verifying wills and contracts and preparing petitions for presentation in court.

Certain countries have officials who are indigenous to their country or legal system. France, for example, has a juge d'instruction, who is responsible for the preliminary investigative proceedings prior to a criminal trial.