The judge is the final arbiter of the law. The judge has a duty to state positively what the law is. At trial, the judge assumes a passive role of «arbiter» with respect to the defence counsel`s testimony. The judge must also make evidentiary decisions and inform the jury of the applicable law. In addition, the judge should ensure that the order is made in the courtroom. Occasionally, if the parties agree, the judge may also act as trier of fact. This is called a «magistrate trial». Federal court judges are appointed by the President with the «advice and consent» of the Senate. Many state court judges are elected by popular vote. The United States is virtually alone in allowing a federal court with general jurisdiction to rule on questions of constitutionality.
Normally, these matters fall within the jurisdiction of a Supreme Court or a special constitutional court. France Innovation only allows bills to be sent back to court after they have passed through parliament and before they are signed into law by the president. In England, a court may review the validity of a duly enacted law, unless it is contrary to Community law; The same may be true for Scottish courts, although some say they can review British laws for compliance with the Act of Union 1707. Under the United Kingdom Human Rights Act, the courts of the United Kingdom may declare a law incompatible with the rights enshrined in the law. This does not invalidate the law or render it inoperative: it is then up to the executive and ultimately the legislature to decide what to do with the impugned legislation. A number of other countries have a dual system. In such a system, religious rules govern and religious courts rule on matters such as marriage, divorce and family relations. However, a secular system with state courts covers the broader areas of public and commercial law. This was the situation in England until the 1850s and it is now the case in Israel, India and Pakistan. In these dual jurisdictions, the proportion of human activity regulated by either system may depend on the level of economic and political development of the country concerned. We could look at existing laws, guidelines, which take the form of general rules to be followed in the nation-state or its subdivisions. Laws control judicial decisions or the common law, but are subject to (and are controlled by) constitutional law – decrees, regulations or court decisions – in a manner precise enough to know what the law says.
For example, we could look at the published speed limits on most U.S. highways and conclude that the «right» or «right» speed does not exceed fifty-five miles per hour. Or we could look a little deeper and find out how the written law is usually enforced. In this way, we could conclude that sixty-one miles per hour are generally authorized by most state troops, but that sometimes someone receives a ticket for fifty-seven miles per hour within a fifty-five miles per hour zone. Both approaches are empirical, but not strictly scientific. The first approach, which examines exactly what the rule itself says, is sometimes called the «positivist» school of legal thought. The second approach, based on the social context and actual behaviour of key law enforcement actors, is similar to the «legal realist» school of thought (see Section 1.2.3 «Other Schools of Legal Thought»). The law does not correct (or purport to correct) all injustices that occur in society. At the very least, it aims to curb the worst form of injustice, the kind of injustice that violates what might be called the «minimum moral standards» that a community demands of its members.
This includes not only violations of criminal law (see Chapter 6 «Criminal Law»), but also misdemeanours (see Chapter 7 «Introduction to Tort Liability») and broken promises (see Chapter 8 «Introduction to Contract Law»). Therefore, it may be wrong to refuse to answer a call from a friend, but this injustice does not lead to a viable lawsuit against you. But if a phone (or internet) is used to slander or slander someone, a crime has been committed and the law can allow the defamed person to be compensated. In England and in the laws of the thirteen home states, common law decisions defined crimes such as arson, burglary, murder and robbery. Over time, U.S. state legislators have adopted or amended definitions of most common law crimes by establishing them in codes or statutes. This legislative capacity – to amend the common law or transform it into judicial law – refers to an important phenomenon: the primacy of written law over common law. As we will see in the next section, constitutional law will take precedence over legal law. A legal system is a procedure or procedure for interpreting and applying the law. But despite this great diversity, it is important to first emphasize the separation between religious and secular legal systems. Everyone has very different views on the law, in terms of source, scope, sanctions and function.
The source of religious law is the Godhead, who makes the laws through the prophets. However, secular law is man-made. In a religious legal system, disputes are usually settled by an official of that religion, so that the same person is both judge and priest. In a secular system, on the other hand, the function of judge is distinct and is often reinforced by guarantees of judicial independence.