The judiciary is responsible for enforcing the law. The main responsibility of a (democratic) judiciary is to support the rule of law in a state. Judiciaries are also responsible for fairly resolving conflicts. These conflicts can be between citizens (e.g. a divorce), between citizens and the state (e.g. land confiscation), or dealing with crime.

However, the judiciary also plays a very important role in government. This is because the most important laws that determine how government works are usually written in a constitution. Judiciaries are responsible for interpreting the meaning of these laws when they are not clear, or in conflict. This can be very important in politics since lack of clarity or conflict of meaning can cause serious problems in government. The judiciary acts as an independent judge that settles these disputes in a neutral way.

An important point about many judiciaries is that they give people the opportunity to appeal to higher levels of court if they feel that the decision that has been made at a lower level is wrong. Lower courts might be more vulnerable to political pressure or corruption, so the right to appeal is an important part of the rule of law. Independence of the judiciary is an important source of democratic legitimacy.

If the judiciary is independent, the public will be more confident about using the courts to solve disputes and seek justice.

Constitutional Courts

Having a government based on the separation of powers can mean that the responsibilities of the different branches can sometimes conflict. Sometimes the executive and the legislature both think that they have the right to make a decision (based on their understanding of the constitution). In these cases, a third group is needed to fairly resolve this conflict.

The main institution that is responsible for this function of the judiciary is called a “constitutional court” or “supreme court”. It is responsible for checking that laws passed by the government do not conflict with the basic laws of the constitution. The roles of a constitutional court are:

• To interpret the constitution.

• To carry the power of judicial review: it can declare a law or action by the legislative or executive branch illegal because it conflicts with the constitution.

• To settle disputes between different branches of government.

• To check (monitor or control) the abuse of power.

• To decide on cases where individuals complain that their constitutional rights have been abused.

It is very important that these courts are independent from the other branches of government. Any pressure from the executive on the judiciary, or any close relationships between judges and politicians will weaken the judiciary’s independence. For this reason, judges are usually chosen very carefully and have these positions for very long periods (often for the rest of their lives).

This causes problems for several reasons. Firstly, judges are not chosen in a democratic way. They are not elected, and there is often no way of removing them after they have been chosen. Secondly, judges are supposed to be politically neutral when making decisions. However, this can be challenging because every judge has political opinions. This means that choosing a judge can be a very political decision.