The role of the judiciary in modern society is no different than ever -
to assist in delivering justice. The day-to-day role of the judiciary is
to apply the law to factual situations and provide a just resolution
for the parties as well as for society. The cases that go beyond those
day-to-day determinations are what we are mainly to consider here.
Behind that easy answer - what is justice? Is justice different at least
in some ways in a modern society versus some other societies now or in
the past? John Rawls suggests the answer is yes. 1 He says in
his collected papers we can only evaluate justice in our own society. I
would include at least common law countries in the definition of our
And to whom is justice delivered?
Only those within the jurisdiction of the court? Citizens of the United
States who are combatants against us on foreign soil? Foreign nationals
within our borders? What if the habeas corpus jurisdiction of a
constitutionally-created Court was circumscribed by legislation or by
executive action as President Lincoln did with certain individuals in
suspending their right to habeas corpus at the outset of the Civil War?
And remember, in analysis, having the power to do something is one
thing, having authority to do it is another. President Lincoln had the
power but not the authority.
Note that I
said the Courts assist in delivering justice. It is clear that the
legislative, the executive, and the judicial branches ...