The Political Function of the Judiciary: A Critical Analysis
Unit 5: The Political Function of the Judiciary
Defining the Judiciary’s Political Role
Our goal is to define the political role of the judiciary, examining its institution, organization, and operation within the contexts of modernity, liberalism (18th century), the relationship between state and society, politics and economics, public and private sectors, ontological ruptures, dichotomies, ideology, the state’s monopoly on force, and judicial legitimacy. We will explore the judiciary as a body of experts, the concept of jurisdiction as the right of the legislature, the “mouth of the law” metaphor, the double degree of jurisdiction (national court and courts of appeal), bureaucracy, original and appellate jurisdiction, and the judiciary’s role in interpreting and resolving social conflicts.
The Judiciary in the Context of State and Society
When considering judicial issues, we must analyze the relationship between the state, society, and the right of the legislator. The judiciary exists not in isolation, but in relation to these entities. The right recognized by the state is present in the judiciary to resolve conflicts (the interplay of Law, State, and Society). Historical and social context is crucial. In Western modernity, particularly within the framework of liberalism, we encounter separations, ruptures, and dichotomies that shape society.
The Liberal Conception of the State and the Judiciary
The liberal view of the state emphasizes individual rights, which the judiciary is meant to protect. In this context, power is centralized in the state, contrasting with the diffused power structures of the Middle Ages. Society is thus perceived as powerless, as the state holds a monopoly on the use of force. Social relations are ideally free from power dynamics, as individuals are considered equal. Obligations arise not from coercion, but from the desire for freedom. From an economic perspective, society is seen as a collection of free and equal individuals. Power is vested in the state, which is responsible for administering justice.
The Function of Power and the Judiciary’s Role
According to Luhmann, power has the positive function of organizing life in society. As a state monopoly, power must ensure social order (bourgeois) and the functioning of a capitalist society. The state establishes regulatory bodies, such as the judiciary, to fulfill this function. Power is understood as a socially acceptable force, distinct from brute force. The judiciary does not possess power itself, but exercises legitimate state power. It gains legitimacy not through elections, but through selection. Its function is to legitimize the state by resolving conflicts and upholding the law, rather than representing the people through elections.
The Judiciary as a Body of Experts
Note: The right of the judiciary to exist depends on the executive and legislative branches. Note: The state is an abstract entity conceived as a person exercising power to enable life in society. The judiciary can be understood as a powerless organ of the state, composed of experts and technicians who know the law established by the legislature. This portrayal aims to present the judiciary as free from subjectivity and values, a mere channel for expressing the law—the “Mouth of the Act.” The judiciary’s interpretation is not meant to create new law, but to offer a passive and mechanical exegesis. However, the individuals within this body of experts have their own subjective values and opinions that inevitably influence their decisions. The functionalist view and biologizing language attempt to obscure this political bias.
The Limits of the Judiciary’s Power
Note: The judiciary’s function is to interpret the law within its limits, acting as the “Mouth of the Law,” free from political, cultural, or subjective interference. It is envisioned as a machine or gear, which Weber terms bureaucracy. Res judicata, a decision beyond further appeal, legitimizes the state by legitimizing the judiciary. It protects individuals by limiting state power, preventing the state from wielding power as brute force.
The Evolving Function of the Judiciary
Note: The functionalist view of the judiciary is historically contingent, meaning its function can change over time. The very notion of a neutral judiciary is itself a product of political opinion, potentially aimed at concealing political biases.