Courts As Legislators Essays - , Term Papers

Courts As Legislators Courts As Legislators The purpose of this paper is to show that although not originally intended to, some our modern day courts in the United States have in essence become legislators. I will give a brief overview of the history of courts and site some cases where the decisions handed down or the opinions of the court have set precedent in the way the law is understood and enforced. As long as man has been on this earth there have been conflicts or disputes that needed to be resolved by a third party. By definition, a court is a.) a place where legal justice is administered b.) a judicial tribunal duly constituted for the hearing and determination of cases. The recognized existence of even primitive courts implies a relatively high degree of social organization and the need for systematic resolution of disputes based on established customs and rules of conduct. Courts have been set up to hear disputes between two or more parties. In medieval European history a Curiae was a court, or group of persons, who attended to a ruler at any given time for disputes of social, political or judicial purposes were resolved. It's composition and functions varied considerably from time to time and from country to country during a period when executive, legislative and judicial functions were not as distinct as they were later to become. The ruler and the curia made all policy a nd decisions either great or small and if the ruler was a powerful one, were as active as a modern day court of law. The curia of England underwent an evolution from the medieval curiae. It was known as Curia Regis, which was introduced at the time of the Norman Conquest (1066) and lasted until the end of the 13th century. The Curia Regis was the start that the higher courts of law, the Privy Council and the Cabinet, evolved from. About the same time, the Curia undertook financial duties. The members were called justices and in the king's absence presided over the court. In 1178, Henry II took another step by appointing five Curia members to form a special court of justice, which became the Court of Common Pleas. Initially the justices of this court followed the King's court from place to place, but Magna Carta (1215) provided for the court to be established in one place. There was also Ecclesiastical courts, which was a tribunal set up by religious authorities to deal with disputes among clerics or with spiritual matters between clerics and layman. Although you can find such courts today among the Jews, Muslims and some Christian sects, their functions have become limited to strictly religious issues and the governance of church property. During earlier periods, the ecclesiastical courts often heard matters of the non-spiritual, and during the Middle Ages; the Roman Catholic Church even rivaled the non-spiritual courts in power. Some of the secular matters dealt with included anything to do with marriage and exclusive jurisdiction over cases involving wills. In England, the ecclesiastical courts had complete jurisdiction in matters of succession of personal property until the 16th century, and then in competition with the courts of chancery, until 1857. In many areas, where royal justice was insufficient, church court assumed jurisdiction. However, by the end of the 14th century, as the administration of royal justice increased, so did the heightened controversy between the two powers. The secular authorities found ways to diminish to power of the ecclesiastical courts, thus rendering their jurisdiction to that of spiritual matters. The civil contract of marriage was separated from the sacrament and other contracts and wills were brought into the secular domain. In England today the ecclesiastical courts exercise jurisdiction in civil cases concerning church buildings and in criminal cases in which clergymen are accused of spiritual crimes. As our forefathers came to America, they brought with them the ideals that were set before them in their native country. Although they left England looking for a new way of life, they used these ideals as the basis for a new society. With the Constitution of the United States a new form of government was formed. The three branches of federal government that arose from this are: