Judicial Processes: Should Judges Be Elected Or Appointed

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Table of Contents

  • Factors Behind Trusting Law:
  • Different Type of Legal System and How They Work:
  • The Need to Nominate and Elect the Best-Qualified Magistrates
  • How Do Judicial Elections Work in This Country?

I consider that it is a paradigm that we have to obey the law just because it is the law and that it is really what citizens understand by law, sometimes we only know that the law is issued by the deputies in some congress, since whether federal or state, that the law has to be created through a legislative process which has several stages and culminates with the publication to be required by the state, we infer that the laws are part of the social organization and have that exist so that our human relations and with the state have a certain organization, without stopping to reflect if those laws that we implicitly obey are fair or not, we simply abide by them because they are mandates of the Authority, and we fear being sanctioned if we do not comply with them, without sometimes matter whether or not that law that we are abiding has a valid reason for being, if we exist, we obey the law because they taught us since childhood in our homes.

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As a superior entity, simply and simply because I had to understand that she is my superior, nothing more, that perhaps it would not have been different than the one that had told me: I tell you to do or stop doing this or that thing because Mom thinks that it is not Good for you for this or that cause? Do we really understand as citizens the rationale for our laws? We obey it because they are given to us by our “Superiors,” but in reality who are they? I believe that our conscience as governed must change; we must care that that law that we have to obey has to be understood and not obeyed, simply and simply because it has to be by force, and what does that imply? For knowing the spirit of it, the (Ratio), it knows the reason why it was created by the legislator, what is its true justification of being or existing and if that law is really materially useful, that is, according to its purposes it is functional or not in the scope of application for which it was created, if the socioeconomic, political, ethnic, religious and other conditions ensure the success of the application of the law that is intended to be imposed in that social stratum . It is necessary that the collective conscience change; we are immersed in a culture of illegality in which the one who breaks the law and draws the punishment is the intelligent one, 'he who delivers it' and the one who fulfills it is the fool. The law must be obeyed, but first, it must be understood by those to whom it is addressed and must also be useful for society (Bonsignore et al.).

Factors Behind Trusting Law:

The trust in the legal system basically builds on two main components, 1) Social trust, which basically shows the confidence of citizens on their legal system, and the 2) political trust when the citizens show approval of the government and its institutions work. In fact, most people comply with the law every day voluntarily and peacefully, and not because they know the legal text and have studied their sanctioning regime - we are too busy to do so - but by mere custom, that light vehicle that It transports us without feeling like the dolphin to Theseus or like the wave to the surfer. The modern state building is entirely dependent on a great routine of observance of the laws, and that is why Renan was quite right when he defined the nation as a “daily plebiscite”, the one that daily awaits the confirmation of the order constituted by its normal compliance and free, not coerced, by the diffuse sovereign will. “The laws,” writes Tocqueville, “are always hesitant as long as they don't rely on customs; these form the only resistant and lasting power of the people.”

Different Type of Legal System and How They Work:

The general factors that affect all legal settings in a given region equally. These are:

Political-legal factors: The government's economic policies and the different laws that regulate economic activity can be key for the company. We refer to all the legislation that a company must comply with, such as prevention of occupational hazards, competition rules, advertising, environmental protection, etc. Of course, taxes and social security that must be paid are also key. Thus, when in Spain, VAT was raised to 21%, this caused many companies to have to raise their prices.

Economic factors: The general situation of the economy, interest rates, existing unemployment, the level of development of the country, etc. they are factors that can make a company sell more or less or that can produce more or less cheap. There is no doubt that the economic crisis, which led us to 27% unemployment, hurt hundreds of thousands of companies in Spain (such as construction). On the other hand, underdeveloped countries may be unattractive to sell, but to produce. This explains why many large companies are going to be produced in underdeveloped countries.

Sociocultural factors: It refers to factors such as educational level, lifestyles, consumption habits, etc. All of these factors also influence company sales. For example, in recent years, there is a growing sensitivity to food and the environment, which has caused a great boom in the production of organic products (Macaulay et al.).

Technological factors: Technological changes influence the products that a company can manufacture. The continuous advances make the products become obsolete every time before, and the companies must react not to be outdated. The great advances in the internet have been key to the development of many applications and programs that make life much easier for companies.

When choosing new magistrates, it is vitally important that States Parties be able to ensure a truly representative tribunal; It is necessary to take into account the judicial qualifications, the representation of the main legal systems of the world, the geographical representation, the gender balance and especially that all the candidates are “persons of high moral consideration, impartiality, and integrity”. The Coalition asks States Parties to nominate and elect only the best-qualified candidates and not to participate in reciprocal political agreements (“exchange of votes”) in any election of the ICC / AEP (Glick et al.).

The Need to Nominate and Elect the Best-Qualified Magistrates

During the nomination period, the States Parties, together with the States that have begun their ratification process, may present candidates who will then be evaluated by the Advisory Committee for Judicial Nominations (CAN). The CAN began its functions between 2011 and 2012 with the objective of facilitating the nomination and election of the best-qualified magistrates through the evaluation. For this, it evaluates the candidates in order to determine if they have the necessary qualifications to be part of the ICC tribunal and generates formal recommendations that will then be published in a report the weeks before the elections. The Coalition does not support or oppose any individual candidate but requires States parties to give their full support to the work of the CAN and take into account their findings and recommendations (Mays et al.). In the 18th session of the 2019 AEP, the election of the ninth and last member of the CAN will be carried out following a consensus recommendation of the Bureau. In the previous AEP session, consensus on the final candidate was not reached, and the election was postponed to 2019. Following the requirements of geographical representation, the eight CAN members are citizens of Palestine, Romania, France, the United Kingdom, Kenya, Botswana, Bolivia, and Brazil. However, members must act in their personal capacity, regardless of the interests of their own States.

How Do Judicial Elections Work in This Country?

The methods of judicial selection differ significantly across the United States. Though every state has a unique guideline which basically governs how they fill their state as well as local judiciaries. The elections of the judicial system occur in different ways few methods are the following:

  • The partisan elections in which judges are elected by the people and the candidates who are participating in the elections are mentioned on the ballot with the labeling of designing political party.
  • In the non-partisan elections, the judges are elected and are mentioned without the labeling of designing political parties.
  • In legislative elections, the judges are elected entirely by the state legislature.
  • In assisted appointments, the judges are elected entirely on merit. A commission committee reviews the qualifications of the candidates, and then according to his/her qualification, they are elected as a judge in the judicial system.

A States may integrate more than the above different methods across different levels of courts. For example, appellate court judges in New York are basically elected by the method of assisted appointments, but the trials of the state court are in partisan elections. Undoubtedly, it is surprising that the process of selecting and appointing the highest positions of the magistracy is carried out without the necessary presence of light and stenographers, and worse, without the prior objective assessment of the merits that have to Gather the candidates (McGuire & Kevin). And in the case of judicial positions with an essentially governmental function (e.g., Presidents of the Provincial Hearings or the TSJ), it is not acceptable to be appointed at the proposal of the CGPJ, regardless of the will of the judges and magistrates assigned in its territorial scope. This state of affairs not only seriously affects the independence of our Judges and Magistrates, but also clashes with the desired objective of professionalizing our judicial system through the establishment of a true career, transparent and based on criteria that allow measuring, in the most objective way possible, the merit and ability of the applicants to each place.

The balance of powers sought by the American democratic system also affects the judicial branch. In the country, there are two levels of justice: state and federal. In the first, each state decides how its judges are elected, and, being a diverse country, its systems are also: they range from the popular election to the appointment by the governors with the endorsement of the state legislative bodies. At the federal level, superior in the judicial hierarchy, the appointments of judges correspond to the president of the United States. for the three federal steps: federal district courts appellate courts and Supreme Court, the highest interpreter of the constitution. To compensate for the president's power - in less than two years, Trump has been able to elect two Supreme judges - his nominees must be confirmed by the US Senate. And, to compensate for the power of the president and the Senate in the election of judges, they retain their office for life, in the three federal judicial levels. Judicial independence is conferred by the fact that, regardless of their sentences and the ideological orientation of the White House and the Senate, the judge will not lose his toga: he can only be expelled for serious offenses through an 'impeachment' or trial legislative. At present, two of the Supreme judges are over eighty years old. Thus, there is a risk that when a party dominates the White House and the Senate, as has happened in recent years, the Supreme Court is dominated by conservative or progressive judges. But history shows that the appointment for life allows the judge to act more independently: for example, Earl Warren, a conservative judge appointed by Dwight Eisenhower was a progressive leader of the court. And John Roberts, elected by the also Republican George Bush, was the one who allowed the controversial health reform of Barack Obama to survive.

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