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.
Comments
Post a Comment