Like legislators and executives, judges are major participants in the policy-making process; and courts, like legislatures and administrative agencies, promulgate rules of behaviour having the nature of law. The process of judicial decision making, or adjudication, is distinctive, however, for it is concerned with specific cases in which an individual has come into conflict with society by violating its norms or in which individuals have come into conflict with one another, and it employs formal procedures that contrast with those of parliamentary or administrative bodies.
Established court systems are found in all advanced political systems. Usually there are two judicial hierarchies, one dealing with civil and the other with criminal cases, each with a large number of local courts, a lesser number at the level of the province or the region, and one or more courts at the national level. This is the pattern of judicial organization in Britain, for example. In some countries—for example, in France—although there is a double hierarchy, the distinction is not between courts dealing with criminal cases and other courts dealing with civil cases but rather between those that handle all civil and criminal cases and those that deal with administrative cases or challenges to the administrative authority of the state. Reflecting the federal organization of its government, the United States has two court systems: one set of national courts and 50 sets of state courts. By contrast, Germany, which is federal in governmental organization, possesses only a single integrated court system.
Local courts are found in all systems and are usually of two types. The first type deals with petty offenses and may include a traffic court, a municipal court, a small-claims court, and a court presided over by a justice of the peace or a local magistrate. The second type, sometimes called trial courts, are courts of first instance in which most cases of major importance are begun. These are the state superior courts in the United States, the county courts and quarter sessions in Britain, the tribunal de grande instance in France, and the district courts, or Landgerichte, in Germany. In some systems there is a level above the local court, usually referred to as assize courts, in which exceptionally serious crimes, such as homicide, are tried. Courts of appeal review the procedures and the law in the lower court and, in some instances, return the case for a new trial. In all systems there are national supreme courts that hear appeals and exercise original jurisdiction in cases of the greatest importance, such as those involving conflict between a state and a national government. Outside the regular court systems, there are sometimes found specialized judicial tribunals, such as administrative courts, or courts of claims that deal with special categories of cases.
The functions of government
In all modern states, governmental functions have greatly expanded with the emergence of government as an active force in guiding social and economic development. In countries with a command economy, government has a vast range of responsibilities for many types of economic behaviour. In those countries favouring social democracy, the government owns or regulates business and industry. Even in the free-market economy of the United States—where there remains a much greater attachment than in most societies to the idea that government should be only an umpire adjudicating the rules by which other forces in society compete—some level of government regulation, such as the use of credit controls to prevent economic fluctuations, is now accepted with relatively little question. Government has thus become the major or even the dominant organizing power in all contemporary societies.
The historical stages by which governments have come to exercise their contemporary functions make an interesting study in themselves. The scope of government in the ancient polis involved the comprehensive regulation of the ends of human existence. As Aristotle expressed it, what was not commanded by government was forbidden. The extent of the functions of government in the ancient world was challenged by Christianity and its insistence on a division of those things that belong separately to Caesar and to God. When the feudal world succeeded the Roman Empire, however, the enforcement of the sanctions of religion became one of the first objects of political authority. The tendencies that began in the 18th century separated church from state and state from society, and the modern concept of government came into being. The American colonies’ Declaration of Independence expresses the classic modern understanding of those ends that governmental functions exist to secure. The first aim of government is to secure the right to life; this comprehends the safety of fellow citizens as regards one another and the self-preservation of the country as regards foreign powers. Life exists for the exercise of liberty, in terms of both natural and civil rights, and these, along with other specific functions of government, provide those conditions upon which men may pursue happiness, an end that is finally entirely private and beyond the competence of government.
With the advent of the Marxist conception of the state, the ends of human existence once again became the objects of comprehensive government regulation. Marxism sees the state as a product of class warfare that will pass out of existence in the future age of perfect freedom. Aristotle believed human perfection to be possible only within political society; Marx believed that the perfection of man would follow upon the abolition of political society. Before the final disposal of the state, however, many Marxists believe that forceful use of governmental power is justified in order to hasten mankind’s progress toward the last stage of history.
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