What is/was a court of &quot;judicature,&quot; and how is it named? Supreme court of judicature etc. I feel like it may even still be a thing in Scotland, but you see it in older EWCA decisions. What does the word mean and what does it note to qualify a court's name with it?
My understanding is that is simply another term for a &quot;court of law&quot; or for a &quot;court of justice&quot;. All of those terms simply mean a court, a place where judgements under law are made. Which term is used is a matter of history and tradition, or perhaps of style. The term does not of itself imply any difference of rules or authority or procedure. Different courts do have different procedures to some extent, and if one court normally uses one term for itself, then that term may go with that court's procedure to some extent. Merriam-webster gives as sense 2: a court of justice Collins gives as sense 4: a court of law Cambridge gives: the legal system and the work it does The legal section of the Free Dictionary gives: A term used to describe the judicial branch of government; the judiciary; or those connected with the court system. ... Judicature refers to those officers who administer justice and keep the peace. It signifies a tribunal or court of justice. ... [sense 5] a court of justice or such courts collectively.
The concept of prima facie is common also in civil proceedings (and, impliedly, administrative ones). See the results from this query, most of which are civil cases. For instance, this memorandum opinion begins by acknowledging that the plaintiff-appellees "have met their burden of establishing a prima facie case for defamation". In theory, the purpose of prima facie elements is to establish "high-level" uniformity as to what items a plaintiff or prosecutor, as the case may be, will need to prove in order to prevail in a case. That uniformity is necessary for --and consistent with-- the so-called "equal protection of the laws". From a standpoint of equal protection, there is no reason why a case being criminal vs. civil should make a difference regarding the applicability of the concept of prima facie elements.
This would establish a new precedent (I assume) You assume correctly. However, a precedent is only binding on lower courts and persuasive on courts at the same level so a trial judge precedent is not very far-reaching. Does this statute takes precedence over (overrules) the previous court precedent? Not exactly. The precedent was good for the old (common) law. Now the law has changed and the old precedent is irrelevant. Courts only interpret the law and legislatures are free to change the law within the limits of their constitutional power. Indeed, a fair number of laws are enacted because the legislature does not agree with how courts are ruling.
I don't believe your premise is necessarily true. As the Supreme Court has held, a defendant can be prosecuted for perjury after being convicted for another offense at trial: The conviction of Williams, at a former trial, for beating certain victims is not former or double jeopardy. Obviously perjury at a former trial is not the same offense as the substantive offense, under 18 U.S.C. § 242, of depriving a person of constitutional rights under color of law. . . . It would be no service to the administration of justice to enlarge the conception of former jeopardy to afford a defendant immunity from prosecution for perjury while giving testimony in his own defense. United States v. Williams, 341 U.S. 58, 62 (1951) (emphasis added). Now as a practical matter, trying a convicted person for perjury is most likely rare, since the prosecutor has already obtained a conviction for the underlying offense. Starting another prosecution for perjury might be excessive or unnecessary. But that doesn't mean it's categorically prohibited. Note also that perjury by the defendant can be considered by the judge to enhance the defendant's sentence. United States v. Dunnigan, 507 U.S. 87, 96 (1993).
Current Place of Magna Carta in US law Magna Carta is not now a current statute in any part of the US. I don't think it ever was (not since the US became independent of the UK), but I am not sure of that. Its words influenced the drafters of the US Federal Constitution. In some cases it may thus be helpful in understanding the original intention of the framers, but probably The Federalist and the records of the debates of the Philadelphia Constitutional Convention are far more persuasive and more helpful. The major decisions of the Marshall Court are also very relevant. The US Supreme Court can and does change its interpretation of laws passed by Congress and of the Constitution. The words of Magna Carta are not more binding than Supreme Court decisions. In fact they are not binding at all, on any court or official in the US in any way. They are part of our legal history, but they are mnot current law, no more than the Code of Justinian or the Laws of Hammurabi are. The detailed procedural rules of Magna Carta are certainly not in fore in the US in 2022, nor in the UK either. The Ninth Amendment, which protects unenumerated rights of the states and the People does not protect,such procedural details, At least it has never been held to do so, to the best of my knowledge. I don't even know of a case where such a contention was seriously argued. The question states that: The meaning of “Due Process of Law” of the Fifth Amendment is, primarily, chapter 28 of Magna Carta and everything that built on it by judicial decisions. There is a sense in which this is true, but a very weak one. The concept of “Due Process of Law” was to some extent spelled out in Magna Carta, and later court decisions and legal and political philosophers (such as Locke) built on it. But most of the specifics of what constitute &quot;due process&quot; at the time of Magna Carta have since been dropped, and most of the current requirements were added much later. The idea of a hearing before an impartial tribunal, where the accused can present evidence, goes back to MC. Other requirements of due process, such as a right to a lawyer, rights against self-incrimination, rights against double jeopardy, the right of an accused to testify under oath, the right of an accused to issue subpoenas to witnesses, the right to an impartial jury, The right to be free of search, seizure or arrest unless probable cause has been shown under oath, and many others were added long after MC, some not until the 20th century. Such one-time aspects of due process as the right to be tried by members of one's own social class, a vital aspect of MC, are long gone, and never really existed in the US. Two-Witness Rule There was an early debate in a Supreme Court case, a perjury case if I recall correctly, on the need for two witnesses for conviction, but later statues have altered that rule. I don't know of any such rule ever applying to arrests in the US. It surely does not apply now. Coke and Magna Carta Early in the 1600s Lord Justice Edward Coke used the text of Magna Carta (among other things) to argue that Equity courts should not be able to use injunctions to stop cases pending in common-law courts. To do this he gave to Magna Carta a semi-sacred status it did not have when it was originally issued. (Indeed J.C. Holt, in his classic study Magna Carta, arguses that the charter was a victory for King John, and a defeat for the Barons, because the Barons allowed themselves to be bought off by promises that John never intended to keep, and that were not, in fact, kept. He further argues that it was the re-issues over the period 50-100 years later that gave MC what contemporary force it had, but that it was Coke's invocation of it that gave it the modern reputation as a foundation of freedom. I agree.) Coke claimed things for Magna Carta it could not have meant at the time it was issued, as the equity courts did not exist as an institution at that time, and would not for several generations. Charles Rembar, in his excellent non-technical history of Anglo-american law, The Law of the Land: The Evolution of Our Legal System (ISBN: 978-1-5040-1566-0; 1980) wrote (pp. 57-8): Early in the 1600s, Lord Justice Coke declared that neither king nor Parliament could transgress fundamental principles of common law. In time the proposition was true enough for king (also, academic: he himself could make no law, fundamental or trivial), but it has never held for Parliament; no one in office followed Coke along this line, not even Coke himself. Removed from the bench, he entered the House of Commons, and fought the Stuarts there. In the last stage of his long career, Coke asserted the utter supremacy of Parliament, an assertion which by the century’s end had become the constitutional law of England. The equation of &quot;Due Process of Law&quot; with &quot;Law of the land&quot; was part of this argument on Coke's part; it was, in effect, a piece of spin, which not all later scholars have noticed. &quot;Due process&quot; was, at beat, a part of the &quot;law of the land&quot;, and it was always subject to modification by Act of Parliament (earlier, by acts of King-in-Council). It is true tht the US Supreme court has taken &quot;Due process&quot; in a procedural sense, to imply in most cases the right to a hearing, before an impartial tribunal, including a right to present witnesses and evidence, and that several of these principles are mentioned in Magna Carta, and come down to us from MC through much legal history. Magna Carta in the Case of Murray's Lessee In the case of Murray's Lessee v. Hoboken Land &amp; Improvement Co., 59 U.S. 272 (1856) The US Supreme Court looked back throigh legal history to consider what is and is not permitted by the US Fifth Amendment, and its &quot;Due process&quot; clause. This is the kind of extensive excursion into legal history that was more common in Court opinions from the fist half of the Nineteenth Century that it is now. (Rembar remarked, on p 170 of The Law of the Land, &quot;the Supreme Court, ... is fond of legal history and often gets it wrong.) But it is important to note how that opinion from the Taney Court (not the previous Marshall Court) used Magna Carta. The court wrote: [59 U. S. 277] We must examine the Constitution itself to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country. We apprehend there has been no period since the establishment of the English monarchy when there has not been, by the law of the land, a summary method for the recovery of debts due to the crown, and especially those due from receivers of the revenues. It is difficult, at this day, to trace with precision all the proceedings had for these purposes in the earliest ages of the common law. In short that court is interested in Magna Carta only as it has influenced US state and Federal statutes. It in no way states or implies that the exact procedure of Magna Carta must be that of the current US, or is assumed to be such in the absence of a statute changing that procedure. Rather it looks at how US States adopted procedures derived from MC as a guide to the meaning of the Due process clause. After discussing at 59 U. S. 278 what the procedure for retrieving money from tax officials who had allegedly retained it improperly under the statutes of the Tudors (already long after Magna Carta, although well before Coke) the Court wrote: [59 U. S. 278] This brief sketch of the modes of proceeding to ascertain and enforce payment of balances due from receivers of the revenue in England is sufficient to show that the methods of ascertaining the existence and amount of such debts and compelling their payment have varied widely from the usual course of the common law on other subjects, and that, as respects such debts due from such officers, &quot;the law of the land&quot; authorized the employment of auditors, and an inquisition without notice, and a species of execution bearing a very close resemblance to what is termed a warrant of distress in the act of 1820, now in question. It is certain that this diversity in &quot;the law of the land&quot; between public defaulters and ordinary debtors was understood in this country, and entered into the legislation of the colonies and provinces, and more especially of the States, after the declaration of independence and before the formation of the Constitution of the United States. ... [59 U. S. 279-280] Provisions not distinguishable from these in principle may be found in the acts of Connecticut (Revision of 1784, p. 198), of Pennsylvania, 1782 (2 Laws of Penn. 13); of South Carolina, 1788 (5 Stats. of S.C. 55); New York, 1788 (1 Jones &amp; Varick's Laws, 34); see also 1 Henning's Stats. of Virginia, 319, 343; 12 ibid. 562; Laws of Vermont (1797, 1800), 340. Since the formation of the Constitution of the United States, other States have passed similar laws. This legislative construction of the Constitution, commencing so early in the government when the first occasion for this manner of proceeding arose, continued throughout its existence, and repeatedly acted on by the judiciary and the executive, is entitled to no inconsiderable weight upon the question whether the proceeding adopted by it was &quot;due process of law.&quot; *Prigg v. Pennsylvania-, 16 Pet. 621; United States v. Nourse, 9 Pet. 8; Randolph's Case, 2 Brock. 447; Nourse's Case, 4 Cranch C.C.R. 151. Tested by the common and statute law of England prior to the emigration of our ancestors, and by the laws of many of the States at the time of the adoption of this amendment, the proceedings authorized by the act of 1820 cannot be denied to be due process of law when applied to the ascertainment and recovery of balances due to the government from a collector of customs It is to support this last conclusion on what is and is not Due Process under the Fifth Amendment that the Court examined history, including Magna Carta. All the rest of this discussion of history was Obiter Dictum not binding precedent. And of course, not Supreme Court precedent is binding on future Supreme Court rulings. The court can and does overturn its own decisions, and change its interpretations of the Constitution. Wooden v. United States and its citation of Murray's Lessee In Wooden v. United States (Mar. 7, 2022, No. 20-5279), Justice GORSUCH in his opinion concurring in the result, but dissenting from the majority opinion's reasoning, wrote, starting on page 6 of his separate opinion: Consider lenity’s relationship to due process. Under the Fifth and Fourteenth Amendments, neither the federal government nor the States may deprive individuals of “life, liberty, or property, without due process of law&quot; Amdts. 5, 14. Generally, that guarantee requires governments seeking to take a person’s freedom or possessions to adhere to “those settled usages and modes of proceeding” found in the common law. Murray’s Lessee v. Hoboken Land &amp; Improvement Co., 18 How. 272, 277 (1856); N. Chapman &amp; M. McConnell, Due Process as Separation of Powers, 121 Yale L. J. 1672, 1774–1775 (2012). And among those “settled usages” is the ancient rule that the law must afford ordinary people fair notice of its demands. See, e.g., Sessions v. Dimaya, 584 U. S. ___, – (2018) (GORSUCH, J., concurring in part and concurring in judgment) (slip op., at 3– 5). Lenity works to enforce the fair notice requirement by ensuring that an individual’s liberty always prevails over ambiguous law. Early cases confirm the message. In United States v. Wiltberger, a sailor had killed an individual on a river in China. 5 Wheat. 76, 77 (1820). But the federal statute under which he was charged criminalized manslaughter only on the “‘high seas.’” Id., at 93 (quoting Act of Apr. 30, 1790, § 12, 1 Stat. 115). Chief Justice Marshall acknowledged that other parts of the law might have suggested Congress intended to capture the sailor’s conduct. 5 Wheat., at 105. But he insisted that “penal laws are to be construed strictly” because of “the tenderness of the law for the rights of individuals”—and, more specifically, the right of every person to suffer only those punishments dictated by “the plain meaning of words.” ... United States v. Mann tells a similar story. 26 F. Cas. 1153 (No. 15,718) (CC NH 1812). ... As the framers understood, “subjecting . . . men to punishment for things which, when they were done, were breaches of no law . . . ha[s] been, in all ages, the favorite and most formidable instrumen[t] of tyranny.” The Federalist No. 84, pp. 511–512 (C. Rossiter ed. 1961) (A. Hamilton); see also McBoyle v. United States, 283 U. S. 25, 27 (1931) Although it is not likely that a criminal will carefully consider the text of the law . . . fair warning should be given to the world in language that the common world will understand The first thing to note is that this is not a majority opinion, and so not binding law. Indeed another opinion in this case specifically responds to Justice Gorsuch's views, taking issue with them. The next thing to note is that while the opinion does cite Murray’s Lessee, it never so much as mentions Magna Carta, nor does it quote any of the mentions of Magna Carta in Murray’s Lessee. Justice Gorsuch cites Murray’s Lessee to support two principles. One is the &quot;rule of lenity&quot; whch says theist when there is ambiguity in a criminal statute, it shall be read so as to favor the accused. The other is the &quot;rule of fair notice&quot; which says that a person shall not be convicted of crime unless some law clearly makes the actions charged criminal. Justice Gorsuch derives both of these from the Due Process clauses of the Fifth and Fourteenth amendments. To establish this, he cites, not Magna Carta, nor cases from Tudor times, nor US cases from before the Constitution, but US Supreme Court cases written by Justices Marshall and Story (both members of the Marshall Court), and one of the numbers of The Federalist (often considered a good guide to the intentions of the framers). Nothing in this citation implies that the detailed procedures of Magna Carta are now in force, nor that they ever were in the US. It applies only a general rule of law, not a detailed procedure, and that on the basis of US Supreme Court precedent, not because Magna Carta says so. The Great Charter may have been one of the earliest statements of these rules, but it is the reconfirmation of them, in case after US case, that makes them part of US law today.
The concept of law predates writing. "Law" refers not only to the system of rules, as your definition notes, but to the individual rules making up that system (for example, there is a law that prohibits theft). An act is, more generally than the definition you quote, a thing that is done (for example, someone who is discovered committing a crime can be said to have been "caught in the act.") This also does not depend on writing. In our literate times, however, when a legislature (or any body, such as a corporate board of directors), wants to achieve something, someone writes a description of a proposed result. When the body makes a formal decision to adopt the written document (by a vote, for example), it is deciding to do the thing described in the document; that is, it is deciding to act. Typically, for a legislature, the thing it's doing is to create, modify, or repeal a law. It's not very difficult to see how a document that describes a legislature's desire to act came to be called an act. In some contexts, however, it can also be called a law. So the word law can refer to the entire system (as in law school), to a particular act (as in the legislature passed a law today called the XYZ Act), or indeed to a particular rule or section of an act (as in the law in question is subparagraph 2(B)(ii)(b) of the XYZ Act). Law can also refer to case law, of course, or regulatory law, so we tend to use statutory law or statute to denote the laws created through the legislative process. In conclusion, the word "law" has several related meanings, so its use can be imprecise. When speaking about specific paragraphs, precision may be in order. In a case like this, where a paragraph create exceptions to rules laid out in a preceding paragraph, it doesn't make a lot of sense to describe each paragraph as a "law." The numbered items in statutory text can be called many things, and usually have different names depending on the level at which they are found. So I would not know whether these are sections, subsections, paragraphs, subparagraphs, or something else. If I were unable to find the correct terminology for (in this case) India, would probably use a generic term like "items."
united-states In Colorado (which is an outlier among U.S state court systems), trial court judge in the state court system has a duty to rule on pending motions within three months, and if they do not, a litigant can, after providing certain notices to the judge and appropriate authorities in the court administration office move to have the judge's paycheck suspended until the judge rules. In practice, even most lawyers don't know that this rule exists. Those lawyers who are aware of this rule virtually never utilize it, out of the well founded belief that it only makes sense to do so if you are a client in a very time dependent situation whom you are certain the judge will rule against when the judge actually gets around to ruling and you want to get on to the appellate process quickly for the client. Even then, the prevailing assumption is that the judge will be prejudiced against litigant in all discretionary matters for the rest of the case, and that the lawyer for that litigant will be at a disadvantage before that judge for the rest of his or her legal career. Colorado has no similar duty for municipal court judges or administrative law judges (who are not administrative part of the state judicial branch), or for appellate court judges. Likewise, there is no such duty in federal court. In an extreme circumstance, a state court litigant could file a Colorado Appellate Rule 21 motion (formerly called a writ of mandamus) with the Colorado Supreme Court seeking interlocutory relief from the excessive delay, and a federal court litigant in an Article III federal trial court could seek parallel interlocutory relief from the U.S. Court of Appeals for the Circuit in which the trial court is located. But, either way, the likelihood of the relevant appellate court actually granting interlocutory relief for excessive delay by a trial court in addressing a pending matter is virtually nil, unless the case is one statutorily entitled to priority scheduling such as election law cases, protective order cases, and in Colorado state court, in certain civil cases involving very elderly parties. By way of example, I have had civil cases in which dispositive motions have been fully briefed and awaiting a ruling from a judge in both a general jurisdiction state trial court, and also in a different federal court, in which no ruling was forthcoming for more than a year after the matter was fully briefed. It isn't terribly unusual when appellate court rulings are released, to see that the oldest case ruled upon (often an appeal of a serious criminal conviction) that day was filed five or more years before the opinion is issued, even though once a trial court record is transmitted to the court (which typically takes three to six months), and there are typically only three or four appellate briefs to be filed plus half an hour of oral argument to conduct once the case is fully briefed for the appellate judges to consider before ruling. There are rare cases where proceedings can be even slower due to exigent circumstances. For example, I once had a limited jurisdiction civil case that went to trial over automobile repairs in which the presiding judge who had heard all of the testimony and taken careful notes from it had a serious health incident the evening after the last day of the trial, leaving him hospitalized for seven months, and in which it was discovered that the tape recorder that was supposed to have recorded the trial court proceedings that could have been used to create a transcript for use by another judge to rule on the case was broken and had recorded nothing. A year after the trial was completely and the judge had recovered and returned to work, we got the judge's ruling that he otherwise would have provided within a week (because that would have been his normal practice, not because he was required to do so) had he not been hospitalized. Needless to say, no one can tell the U.S. Supreme Court to speed up ruling on a matter in any binding way. There are some exceptions to this in U.S. criminal law trial practice at both the state and local and at the federal level, where there is a constitutional right to a speedy trial that if abridged results in the dismissal of charges against the defendant, and there are a few other deadlines of a similar character related to the post-conviction process. There is also a very short deadline in criminal cases, once a defendant is arrested, for the defendant to have a first appearance before a judge.
Are the steps of the process of judicial review spelled out anywhere? Judicial review isn't a separate kind of legal proceeding. It is something that happens in the course of making legal rulings in an ordinary lawsuit, or in a criminal case, commenced in a court where there is trial court jurisdiction over the kind of case presented. Usually, the trial court is a U.S. District Court in the federal system, and the trial court of general jurisdiction in the state system. But, in principle, any judge of any trial court, even traffic court or small claims court has the authority and the obligation to rule on the constitutionality of any statutes challenged in a case before that judge. Also, some appellate courts, while primarily having appellate jurisdiction, have a small class of cases where they act as trial courts. For example, the U.S. Supreme Court has original trial court jurisdiction over lawsuits of one or more U.S. states against one or more other U.S. states and handles a few such cases each year in a typical year. Similarly, many state supreme courts have original trial court jurisdiction over ethical violation cases brought against attorneys in the state. The initial ruling on the constitutionality of a statute almost always takes place in the trial court, rather than in an appellate court, although appellate courts review the trial court's ruling on constitutionality on appeal, if there is an appeal. The only times an appellate court acting as an appellate court raises the issue of the constitutionality of a statute for the first time on appeal are (1) when that issue goes to the subject-matter jurisdiction of the trial court or appellate court over the case, (2) where the failure of the court to raise the issue that a statute was unconstitutional of its own accord amounted to &quot;plain error&quot; or &quot;structural error&quot; by the trial court, or (3) where the trial court ruled in favor of a party for a non-constitutionality related reason which the appellate court finds was incorrect but the appellate court affirms the trial court anyway on the basis of the unconstitutionality of a statute at issue in the case before it. While a legal ruling on the constitutionality of a statute happens in the trial court, however, the ruling is often made prior to an evidentiary trial on the merits of the case, for example, in a ruling on a motion to dismiss a claim (made based upon the allegations of the person brining the claim in court documents alone), in a ruling on a motion for summary judgment (which is similar but is supported by exhibits and affidavits from the parties to develop the factual context), or in a ruling on a pretrial matter (e.g. an evidence suppression hearing before a judge prior to a trial in a criminal case) that is subject to what is called an interlocutory appeal (i.e. an appeal to an appellate court before the entire case is concluded with a trial on the merits). Also, even when there is an evidentiary trial on the merits, the case may be one in which there is a bench trial, rather than a jury trial, since many constitutional questions involve issues that are not subject to the jury trial right. The constitutionality of legislation and also of policies and practices of governments carrying out their duties, is one issue, often one issue of many, that is ruled upon, in the context of litigation between a party that has suffered a particularized injury from the unconstitutional action (as opposed to one shared by all citizens or all taxpayers), against a party that causes or has the power to prevent that injury. So, for the most part, the constitutionality of legislation is decided either in the context of a civil lawsuit, which is governed by the ordinary rules of civil procedure (see, e.g., In re A.C.B., 2022CA3 (Colorado Supreme Court January 6, 2022), holding that an indigent defendant in a civil contempt proceeding potentially resulting in incarceration had a right to counsel and vacating the contempt of court ruling entered when he was pro se as a result), or in the context of a criminal case against a criminal defendant subject to the ordinary rules of criminal procedure (see, e.g., U.S. v. Hansen, Case No. 17-10548 (9th Cir. February 10, 2020) reversing on direct appeal from a criminal conviction the trial court's conclusion that 8 U.S.C. § 1324(a)(1)(A)(iv) was constitutional as applied to the fact pattern of Mr. Hansen's case). There is a slight nuance in federal civil and criminal cases where the issue of constitutionality of legislation is raised, and also in most state courts. This is the court rule requirement that the attorney-general (the state attorney-general in the case of state court litigation and in the case of federal court litigation over the constitutionality of a state law, and the federal attorney-general in the case of federal court litigation) be joined as a party to the case in order to present an opportunity for the state or federal government, or both, as the case may be, to chime in on the constitutionality issue that affects far more people than the actual parties to the case. See, e.g., Federal Rule of Civil Procedure 5.1. But otherwise, there are no special court rules or procedures that apply to cases in which judicial review of legislation is sought. Also, in the event that one party makes a novel challenge to the constitutionality of legislation, and the government doesn't object because the government agrees with the person challenging the constitutionality of the law, it is common practice for the court to recruit an amicus counsel to argue on behalf of the constitutionality of the law, although this practice isn't uniform and is discretionary. This is a function of case law and custom, rather than being a statutory or court rule requirement, however.