In many States certain judicial powers have been retained by the Upper Houses of their legislatures. In Britain, the House of Lords is the highest court of appeal, although this function is actually performed by the Law Lords. The framers of the American Constitution, influenced by the theory of the Separation of Powers, limited the judicial powers of the Senate, except that it can try cases of impeachment against high executive officials.
Finally, judges in certain States are appointed by the legislature. In the United States the Senate ratifies all judicial appointments made by the President. The judiciary may exercise considerable control over legislation, wherever it has the right, either by precedent or by express grant, to review laws in order to determine their constitutionality. The power of judicial review seems to have reached its greatest height in the United States, despite the fact that there is no express provision in the Constitution which empowers the Supreme Court to declare the constitutionality or otherwise of federal or state Acts. The principle on which it is based was set forth by John Marshall in the famous case of Marbury vs. Madison (1803). Justice Marshall reasoned that the Constitution is the Supreme Law of the land and the judges are bound by oath to give effect to it. When the court is called upon to give effect to a statute passed by Congress which is clearly in conflict with the supreme law of the Constitution, it must give preference to the latter and hold the former void and of no effect.
In India, there is no express provision declaring the Constitution to be the Supreme law. But the power of judicial review by the Supreme Court is subject to no controversy, although its scope is not as extensive as that of the Supreme Court of the United States. In Britain, sovereignty of Parliament is admitted and no court will declare an Act of Parliament unconstitutional. But enactments of minor legislative bodies may be declared illegal. British courts have also refused to enforce executive orders deemed to have been issued without sufficient legislative authority. They may also declare void rules and regulations which offend the parent law.
The interrelation of the judiciary and the legislature can best be found in case-law or judge-made law. Judges not only interpret law, but they also make it. Whenever a case before a court for decision is not covered by law, it is the duty of judges not to determine what the legislature meant, but “to guess what it would have intended on a point not present, if the point had been present.” In this way, judges legislate to fill up the casus omisus or the cases of omission. Judges also create a law for the particular case in determining the exact meaning of law, expanding its details and applying the general principles of justice or morality. In Britain, India and the United States, judicial decisions are cited as precedents and are considered binding in subsequent cases on the principle of stare devises.
Judge-made law, thus, forms a large part of the system of jurisprudence. In countries where codes based on Roman law are used, as in France, precedents are not considered binding.