Курсовая работа: Legal system
As long as access to justice depends on
access to lawyers, society must oblige the legal profession to meet its public
responsibilities – the leading one being that legal services must be genuinely
available to all.
It is evident that the legal profession
enjoys a special status because those who practice law and those who make the
law are often the same people, The legal business has been turned into some
kind of mystical hocus pocus over the years, and has been purposely made
obscure, complicated, and difficult to understand, in order to force the public
to consult lawyers. Entry into the profession has also been made more difficult
than necessary so that there won't be too many people competing for the work.
The law belongs to the people is not a
trade secret of lawyers and judges. The courts exist for the sole purpose of
serving the people and for no other reason. They work for people. They do not
rule them. But now lawyers become judges and judges are lawyers. They take care
of themselves. Judges in America are above the law. Who's going to convict a
judge? Another judge? Not hardly! Judges have immunity and generally can't be
sued. They can get away with anything and they know it. Therefore if they
decide to break the law or break the rules of court, they just do it. No one is
there to stop them.
As with any other profession there is a
possibility that there will be a few solicitors willing to turn a blind eye to
suspicious activities where they will personally benefit, be it by additional
fee income or an increased client base. But, this would not be the case for the
vast majority of solicitors. And Law Society itself cannot dissolve the problem
of “dirty hands”.
The system is supposed to be built on
the idea of checks and balances where each branch of government has it's finger
on the other two branches, so if one branch gets out of line the other two reel
them back in. However, the judiciary is self regulating and only two of the
three branches of government are part of the balance of power. Other than
impeachment, the other branches have no control over the judiciary.
Judges are people’s servants, not rulers.
And this concept is supported in the Rules of the Supreme Court which states as
follows: "The legal profession's relative autonomy carries with it special
responsibilities of self government. The profession has a responsibility to assure
that its regulations are conceived in the public interest and not in
furtherance of parochial or self-interested concerns of the bar."[1]
We must always remember that the name
says it all. When they cry like a stuck pig about what a great burden it will
be on the legal community to have ethics imposed on judges and lawyers, we must
never forget that the rights of the public take precedents over the profits of
attorneys. The courts are not here to suck the wealth from society and give it
to lawyers.
Having mentioned negative sides of the
profession, we must admit positive ones. The Constitution establishes the
fundamental right of access to the judicial system. The courts, as guardians of
every person's individual rights, have a special responsibility to protect and
enforce the right of equal access to the judicial system. If the courts have
this special responsibility but no judicial police force to enforce their
rulings, why is there general compliance? Two important reasons stand out: (1)
public trust and confidence in the system overall, and (2) a strong commitment
by the organized bar to work with the judiciary to establish and demand
compliance of judicial decisions.
The organized bar has long recognized
that it must speak out for the judiciary when it cannot speak out for itself.
This is especially true during ongoing litigations, for example, when the press
criticizes a judge's ruling, and because of the confidentiality of an ongoing
case, the judge cannot explain his or her actions personally. The press may
react by questioning not only the actions of the judge but his or her apparent
unwillingness to respond. The organized bar is also in a position to help the
public better understand the proceedings and the reasoning behind judges'
rulings in an effort to inspire public confidence and generate thoughtful
public debate.
The bar also works hard to provide
trained advocates or counsel in civil matters. Though the right to counsel has
been established in criminal cases, it is not guaranteed in civil matters.
An eminent writer has said: "It
requires two workmen to make a lawyer, the Almighty and the man himself. The
legal mind is the workmanship of God, and no power beneath His can create it.
Not possessing it, no one ever became a successful lawyer; with it, no one ever
failed if he earnestly tried." So we can see that such a gift is worth of
paying money for it.
1.3 THE LEGAL
PROFESSION FOR WOMEN: A PROBLEM OF GENDER EQUALITY
The Constitution of the United States is
to woman as an Emancipation Proclamation, in that it erects no barriers,
imposes no limitations, sanctions no discriminations on account of sex. Tacitly
implying the perfect equality of man and woman as citizens, alike entitled to
life, liberty and the pursuit of happiness, its very silence concerning the
status of woman is an eloquent pleading in her behalf.
Woman has ever been one of the knottiest
points of the law. At first, jurists thought to evade the issue by attempting
to reduce woman to a ghostly nonentity; but, like Banquo's ghost, she would not
"down" at the command of her Macbeth. Next she was concealed beneath
the garb of legal fictions, and under the guise of vested rights smuggled
through the departments of the blind goddess.
One link after another in the myriad
chains which fettered her freedom and independence has been broken, until she
is now not only recognized in legal procedure, but admitted into the very halls
of justice, as an officer of the court, and permitted to participate in its
proceedings. She may not only advocate her own rights, but may plead the rights
of others. She has left in the rear her former colleagues–infants, idiots and
the insane–and almost overtaken her rivals of the fifteenth amendment.
Such has been the breaking of dawn to
woman, after her long civil night. The present century recognizes that the
sphere of women is no longer a mooted question. Merit has no sex; and the
meritorious lawyer, man or woman, who deserves success, who can both work and
wait to win, is sure to achieve both recognition and reward.
Of the three so-called "learned
professions" which are necessities of civilization, the legal profession
has been perhaps the most reluctant to swing open its portals to admit in
fellowship the former "pariahs" of legal procedure: nevertheless
these majestic gates have in hundreds of cases responded to the reiterated taps
of a woman's hand. The proportion of women engaged in the law is less than in
the other professions is, in a measure, due to the peculiar requirements of the
law. Woman may be the weakest in this profession, but in it she lifts with the
longest lever the social and legal status of her sex.
Also it is no trifling education that is
needed for successful competition in this profession. The ramifications of the
law are infinite, and the successful lawyer must be versed in all subjects. The
law is not a mere conglomeration of decisions and statutes; otherwise
"Pretty Poll" might pose as an able advocate. A mind unadapted to investigation,
unable to see the reasons for legal decisions, is as unreliable at the bar as
is a color-blind person in the employ of a signal corps. The woman lawyer who
demands an indemnity against failure must offer as collateral security not only
the ordinary school education, but also a knowledge of the world and an
acquaintance with that most abstruse of all philosophies–human nature. She must
needs cultivate all the common sense and tact with which nature has endowed
her, that she may adjust herself to all conditions. She must possess courage to
assert her position and maintain her place in the presence of braggadocio and
aggressiveness, with patience, firmness, order and absolute good nature; a
combativeness which fears no Rubicon; a retentiveness of memory which
classifies and keeps on file minutest details; a self-reliance which is the sin
qua non of success; a tenacity of purpose and stubbornness of perseverance
which gains ground, not by leaps, but by closely contested hair breadths; a
fertility of resource which can meet the "variety and
instantaneousness" of all occasions; an originality and clearness of
intellect like that of Portia, prompt to recognize the value of a single drop
of blood; a critical acumen to understand and discriminate between the subtle
technicalities of law and an aptness to judge rightly of the interpretation of
principles.
While America's sons sit at the feet of
this divine Law, let not the daughters be unmindful of the peculiar position
which they occupy. Woman has both felt the "power" and participates
in the "care" of that law; therefore, her homage is due, and her
voice needed with that of man to complete the harmony of the world.
2. THE LEGAL
SYSTEM OF THE USA
2.1 THE MAIN
PRINCIPLES OF THE AMERICAN SYSTEM OF JUSTICE
In a democratic society where the
governed relinquish a portion of their autonomy, the legal system is the
guardian against abuses by those in positions of power. Citizens agree to
limitations on their freedom in exchange for peaceful coexistence, and they
expect that when conflicts between citizens or between the state and citizens
arise, there is a place that is independent from undue influence, that is
trustworthy, and that has authority over all the parties to solve the disputes
peacefully. The courts in any democratic system are that place of refuge. U.S.
Supreme Court Chief Justice William Howard Taft stated in 1926 that "the
real practical blessing of our Bill of Rights is in its provision for fixed
procedure securing a fair hearing by independent courts to each
individual."
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