Practice and Theory in Courts, Research Paper Example

The Dual Court System

A dual court system is one where there are two layers of courts within a federal system. Such a system would consist of a court operating at the federal level which interpreted the federal constitution as well as deciding, on a case by case basis, where competence lay in any given case, either at the federal or state level. The second layer of state based courts would interpret state law as well as make rulings on issues dealing specifically with state based matters. The dual court system contained within the overall system of federalism is one of four main institutional arrangements that seek to protect the citizen from undue state power. This is accomplished by the federal government having to share power with the fifty constituent states. The main protection lies in the fact that state power is constitutionally protected and cannot be taken away by the federal government. The other arrangements are limited government which places the constitution above the executive and legislature, judicial review which allows the Supreme Court to strike down unconstitutional legislation, and separation of powers which allows the legislature to hold the executive accountable by being independent of it.

Attempts at unification of the two levels of judicial responsibility would be self defeating. The entire purpose of federalism is to restrain the power of the federal level while providing a cast iron protection for state rights. Unification would almost inevitably lead to the domination of the state judiciary by its federal counterpart, thereby altering the original balance achieved by federalism.

While judges do have specific sentencing and procedural guidelines laid down for them, more often than not, a judge’s decision making will be guided by his personal philosophical rationale. This may be based on the concept of judicial restraint whereby judges make decisions according to the strict letter of the law. On the other hand judges may adopt a position of judicial activism whereby they apply the spirit and purpose of the law as well in their decision making. As a judge I would be definitely in favour of judicial activism. This is based on a belief that society is evolving too quickly for the law to be inflexibly based solely on the circumstances and principles of the eighteenth century. Judicial activism also entails a requirement that one’s convictions can be tested under the correct circumstances. For example as a judge I would normally have given solid support to the Roe v Wade ruling of 1973. However as medical knowledge of the unborn foetus has progressed, it has made it harder to ignore the facts that each abortion is the termination of a human life. This is especially true of evidence showing that unborn babies may feel pain. Recent studies performed through the direct measurement of cortical brain responses during a needle puncture to draw blood showed that cortical blood flow was significantly elevated in foetuses as young as 25 weeks, indicating that the foetal brain feels pain. Although this evidence is contested, the very scientific uncertainty surrounding the subject means that I would certainly be prepared to temper my stance on this ground breaking constitutional ruling. The extreme passion that this subject generates, coupled with the pace of medical and scientific knowledge means that any judicial decision I might make on this subject, cannot just be bound by the letter of laws and rulings which were made when all the facts were not known. The future privacy rights of women must be juxtaposed with the future rights of generations of unborn children in a decision which embodies the spirit of the law and the times as well.

Bibliography

Elliott, C. and Quinn, F. (2002) English Legal System 4^th edition, Harlow, Pearson

McKay, D. (1994) American Politics and Society 3^rd edition Oxford, Blackwell

Schwartz, B. (1993) A History of the Supreme Court 1^st edition Oxford and New York, Oxford University Press

Sohn, S. Do Foetuses Feel Pain? Discovery News, April 26^th 2010 [online] available at http://news.discovery.com/human/fetus-pain-abortion-law.html accessed on June 21st 2011