judicial process

 Judicial process

Judicial process is the means through which justice is to be administered and in this process

the judges act as an instrument to attain this goal, wherein the judges are expected to nave

knowledge- of facts involved and of the law that would apply to the said facts. But the decision

arrived at by a judge involves multiple factors in addition to just the logical application or the

rule of law to the facts

Justice Cardozo's lectures published in a set titled "Nature of Judicial Process" are extremely

relevant for this discussion since he mentions the heft responsibility of the judicial rv in the

judicial process and in doing so he throws light on the sources that guide a judge and

contribute to the final decision arrived at in any given case

He first of all imputes on judges to decide cases bv emplovine an objective standard. all the

while remaining within the prescribed precincts of the relevant law. What amounts to wrong

and right cannot be decided by the judges based on their personal belief system or their

whims and fancies, since that would defeat and deteriorate the purpose of law. Instead judges

have to render justice b relvine on applicable precedents (if anvI and ov being guided by the

goal of social welfare. When a decision cannot be arrived at from within the four corners of a

law and there are no relevant precedents to guide the court, then the judges have to take on

a creative role and arrive at a new principle in favour of larger societal interest. In doing this

the forces that act as the reservoir or inspiration for the judges include- traditions, customs

history, ethos, etc. These forces are influential because judges in their role as law makers (in

absence of a clear cut law and guiding precedents) have to act in good conscience and the

The above stated factors reflect the larger social interests the best.

The common understanding of the judiciary accords it the role of applying the law to the

disputes and cases that come before it. But there might be cases where merely applying the

law would not yield a desirable result. Here judges have to take on. what is called. an

active or creative role. Here judiciary is imputed with a role that manav legal philosophers.

primarily the realists. according to judges- that of a lawmaker. This perspective is a bit different

from what jurists like Savinny support- they believe that judges are not actually making the

law and that they are only unearthing or discovering which already exists by looking a lIte

deeper and beyond the text or a statute and decided cases. But in both perspectives judicial

The process is characterised by a flavour of creativity to uphold the goal of social welfare.

The Indian Supreme Court is a prime example of this sort of creativity in manv cases which

placed them in the role of lawmakers. In a catena of cases the Supreme Court has made a

departure from an old decision or law that no longer served the best interests of the society

and did more harm than good. This active role of the supreme court helps in development of

law in tandem with the changes in society and its interests, since this creative decision making results in creation of new principles of law that fit the needs of society better. Justice Cardozo says that tendency or judges to give a certain decision is guided by subjective

convictions, ideologies, preconceptions, outlook towards life. This is only inevitable given

judees are part of the society and are shaped by it like another individual is. But given the

hefty responsibility of administration of justice on these judges and the need to have logical.well reasoned judgements, it's Important to know and analyse the forces that guide judges

For this purpose, Justice Cardozo in his lectures discusses various "methods employed by

judges to uphold justice in the decisions. He states that its dependent on the judge as to which

method he/she gives what extent of importance, but all the following methods should ideally

be taken together into consideration so that decision is arrived at which favours welfare for

the society to the maximum possible.