Document Type : Article
Authors
1 Assistant Professor of criminal Law, Department of Law, faculty of Human Science, University of Guilan, Rasht, Iran
2 Assistant professor of private law, Department of private Law, Faculty of Law and Political Science. university of kharazmi, Iran, Tehran
Abstract
Today, power, in all its forms and through all its organs, and those who wield it, can no longer escape the watchful eyes of the people. The judiciary, judges, and courts—whether in civil or criminal matters—are among the key pillars of power. If we understand democracy to mean government of the people, by the people, and for the people, the question arises: what kind of judiciary should a “for-the-people and by-the-people” judiciary be? This paper, written using a descriptive-analytical approach, finds that people will perceive a judiciary they do not identify with as a symbol of oppression. They will view its rulings not as judicial judgments but as unjust orders. Such a judiciary will lack legitimacy and respect and may become a refuge for wrongdoers. Therefore, mechanisms must be designed to ensure that the judiciary operates in accordance with democratic principles. If judges are not directly elected by the people, at least the committees responsible for selecting judges should consist of individuals acceptable to the public and free from any perception of being handpicked by the government. Moreover, in certain crimes, citizens should serve on jury panels, giving them a sense of ownership over judicial power. Even if judges and courts, like other branches of government, are not directly accountable to the public for certain reasons, courts must issue rulings with the public as their audience, deliver decisions that are worthy and impartial, and endeavor to address social issues to the fullest extent permitted by the legal system.
Keywords
Main Subjects
English
- A) Books
- Uzelac, A. (2014). Goals of Civil Justice and Civil Procedure in Contemporary Judicial Systems. Springer International Publishing Switzerland
- Fix-Fierro, H. (2003). Courts, justice and efficiency, Hart Publishing. Oxford
- Foster, D. (1882). Advantages of the Jury System, The North American Review , Nov., 1882, 135(312) (Nov., 1882), 447- 460 Published by: University of Northern Iowa Stable URL: https://www.jstor.org/stable/25118214
- Rawls, J. (1999). a theory of justice. harvard university press, usa
- Zariski, A., & Sourdin, T. (2018). What Is Responsive Judging?. springer
- B) Articles
- Berkson, L C(1980). Judicial Selection in the United States. A Special Report, Judicature. 64 (4), Dated: (October 1980) 176-193.
- Dworkin, R. (1996). Freedom’s Law: The Moral Reading of the American Constitution. Oxford: Oxford University Press.
- Flaherty, M. (2015) Self-represented litigants, active adjudication and the Perception of Bias: Issues in Administrative Law. The Dalhousie Law Journal. (38).
- Keenan, D. K. (2004). The Origin and Current Meanings of "Judicial Activism", California Law Review, 92(5), (Oct., 2004), 1441-1477 (37 pages) Published By: California Law Review, Inc.
- Tyler, T. R. (1988). What is Procedural Justice?: Criteria used by Citizens to Assess the Fairness of Legal Procedures, Law & Society Review, 22(1), 103-136 Published by: Blackwell Publishing on behalf of the Law and Society Association.
References In Persian:
- A) Books
- Arendt, H. (2018). Totalitarianism. translated by Mehdi Tadini, Tehran: Nashthalth (In Persian).
- Clark, D. S. (2021). International encyclopedia of comparative law, civil procedure. third volume, translated and researched by Hadi Malek Tabar, Tehran: Publishing Company (In Persian).
- De Tocqueville, A. (2016). Analysis of Democracy in America. translated by Rahmatullah Moghadam Maraghei, Tehran: Scientific and Cultural Publications (In Persian).
- Fan Kangem, R. (2021). International encyclopedia of comparative law, civil procedure. second volume, translated and researched by Hossein Davodi, Tehran: Publishing Company (In Persian).
- Garth, B., & Capletti, M. (2018). International encyclopedia of comparative law, civil procedure. first volume, translated and researched by Hassan Mohseni, Tehran: Publishing Co., Ltd (In Persian).
- Khaleghi, A. (2019). Criminal Procedure Code. second volume, Tehran: Shahr Danesh Publications (In Persian).
- Montesquieu (1984). De l'esprit des lois. translated by Ali Akbar Mehtadi, Tehran: Amir Kabir Publishing House (In Persian).
- Rawls, J. (2017). Political Liberalism. translated by Musa Akrami, Tehran: 3rd edition (In Persian).
- Shams, A. (2002). civil procedure. advanced course, first volume, Tehran: Mizan publishing house (In Persian).
- Woodruff, P. (2015). The First Democracy. translated by Behzad Qadri and Samaneh Farhadi, Tehran: General Knowledge Publications (In Persian).
- B) Articles
- Azizi, I., Amiri, M., Special, Mohammad, R, (2013). the effect of the judge selection method on the independence of the judge in the law of the United States with a view to Iranian law. comparative law researches,17th publications, spring of number 1 (In Persian).
- Rahmani, Q. (2018). Iranian Jury; From the geometry of adaptation in constitutionalism to the art of transformation in the Islamic Republic. Public Law Research Quarterly, 21(62) (In Persian).
- Samai, M., Jabibzadeh, M. J., & Nobahar, R. (2021), virtuous judge; The contribution of virtueism in the theory of judgment. the judiciary law jurnal, 86, (118), Summer, 49-7 (In Persian).
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