Reasons for Courts

Week 1

Dr Michal Ovádek

Definitions

What are courts?

Mohr defines courts as

a family of passive governmental institutions one of whose prominent functions is the settlement of disputes, distinguished from other governmental institutions by a commitment to decide impartially, after presentation of proofs and arguments by contending parties, and to be able to justify decisions according to pre-existing rule.¹

1. Mohr, Lawrence B. “Organizations, decisions, and courts.” Law & Society Review 10, no. 4 (1976): 621-642, p. 623.

What are courts?

Let’s distil the main elements from this definition:

• “governmental”

• “institutions” (= organizations)

• core function = dispute settlement

• impartiality

• arbiter between parties

• justify decisions with pre-existing rules

What are courts?

• “governmental”

  • could exclude international courts if understood strictly

  • seemingly excludes private adjudication and mediation, even if a strong public interest function exists (e.g. Meta Oversight Board)

What are courts?

• a court is an organization

  • a single individual is not a court

  • can there be ‘judges’ without courts? E.g. travelling judges in far-away Roman and Byzantine provinces

  • organizations have some degree of permanency, physical resources (buildings, staff, etc.), rules of procedure, informal practices

What are courts?

• a court settles disputes between parties

  • including private and public entities

  • different judicial remedies for different types of disputes

• arbitrators and mediators also resolve disputes, in less rigid settings

What are courts?

• courts need to be impartial to maintain legitimacy

  • normative requirement to decide impartially

  • practical requirement to also appear impartial

What are courts?

• court procedure is principally adversarial

  • the parties are presenting evidence and arguing their side of the case

  • the court is there to make a decision on the case as it is presented to it

What are courts?

• decisions are motivated with reference to pre-existing rules

  • laws and precedents should make rulings predictable

  • need to justify decisions in this way should limit judicial power (discretion)

Alternative definition

The Court of Justice of the European Union has developed its own definition of a ‘court or tribunal’:

[…] in order to determine whether a body making a reference is a ‘court or tribunal’ […] the Court takes account of a number of factors, such as, inter alia, whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent […]¹

1. Case C-132/20 Getin Noble Bank [2022] ECLI:EU:C:2022:235, para 66.

Alternative definition

Some similarities, some differences:

• established by law

• permanent

• compulsory jurisdiction

• inter partes (between parties)

• applies rules of law

• independent

Module and assessment

Module

• all the information is on the website

  • https://michalovadek.github.io/judicial-politics/

• lectures + seminars (presentations)

• 3000-word research paper (100%)

Module

• think, read, speak (to each other + to me) and write about courts for several hours each week

• how do courts relate to your existing interests?

  • geographically, temporally, thematically

Assessment

• you should start working on your research paper right now

  • see suggested timeline on the website

• the assessment is demanding, but the best work will be adequately rewarded

  • if you do it properly, you will learn a lot

Assessment

Previous year:

• best mark: 80

  • relevant question, grounded in literature, original data collection, appropriate analytical methods, meticulous attention to detail

• worst mark: 19

  • AI slop, vague research question, poor theory, poor methods, undocumented analysis

Assessment

• research-oriented => suitable for expanding into your dissertation

• no restrictions on geographical or temporal focus

  • but generally a good idea to venture into under-researched jurisdictions

Assessment

• coming up with something original requires first learning about what is already out there

		Data
		Existing	Novel
Theory	Existing	Nope	Good
	Novel	Good	Okay

Brief history of courts

Brief history of courts

• the behaviour of a third-party arbiter mediating disputes long pre-dates the invention of syntactic language (~ 70 000 BCE) and has been also observed among non-human primates¹

• it is a type of pro-social behaviour which can arise from a concern for the community or as a non-violent avenue to power

• the development of religious practices and the role of priests were among the earliest forms of ‘law’ (at first purely oral/physical) and ‘judges’, possibly as early as 50 000 BCE

1. Von Rohr, Claudia Rudolf, Sonja E. Koski, Judith M. Burkart, Clare Caws, Orlaith N. Fraser, Angela Ziltener, and Carel P. Van Schaik. “Impartial third-party interventions in captive chimpanzees: a reflection of community concern.” PloS one 7, no. 3 (2012): e32494.

Brief history of courts

• in early societies a key concern was the regulation of retaliation¹

  • submission to arbitration or a community “judge” requires coordination

  • risk of blood-feud spirals at family level

  • similarities with 20th century international law (state retaliation)

• emergence of institutionalized retribution

  • most famously in the Babylonian Code of Hammurabi (“eye for an eye”)

1. Wolff, Hans Julius. “The origin of judicial litigation among the Greeks.” Traditio (1946): 31-87.

Brief history of courts

• the creation of codified laws meant that sophisticated judicial institutions were in place in Mesopotamia at least as early as 2100 BCE

  • multiple jurisdictions, professional judges only one kind of judges

  • widespread use of arbitration (private justice institutions) limited recourse to court litigation

  • public trials (criminal and civil) with evidence, witnesses and adversarial parties, some supernatural elements

Lawsuit in 19th century BCE

Record of a lawsuit on a cuneiform tablet

Lawsuit in 19th century BCE

From the website of the Met Museum:

This tablet, the longest extant Old Assyrian legal text, represents one such document and records court testimony describing a dispute between two merchants. This testimony was delivered before witnesses representing the authority of the merchant government in Kanesh as well as the dagger of the god Ashur. In the text, Suen-nada and Ennum-Ashur accuse each other of stealing the valuable contents of a private archive which they both claim to own. Items within the archive include cylinder seals, tablets belonging to various named merchants, and tablets belonging to strangers that were deposited there for safe keeping. As undisturbed tablet storerooms are extremely rare, this text is important for reconstructing the contents of a sealed archive. Ennum-Assur calls for the case to be moved to Ashur to be tried in front of the city assembly and king, but unfortunately the verdict of the court is unknown.

Ancient Greece

• coexistence of voluntary private arbitration and emergence of compulsory polis jurisdiction

• court jurisdiction was to some extent separate from enforcement (public justice, private enforcement)

  • a judgment could for example certify one party’s right of retribution (e.g. enslavement of the offender)

  • judgments were frequently difficult to enforce as a result, but NB the social function of trials

Mostly drawing on Wolff (1946) who makes the point that Greek courts were merely settling disputes but not ordering litigants to do anything. Litigants would request the court to certify their private enforcement action (self-help).

Ancient Greece

• the most important disputes were litigated as public trials before a significant number (100s to 1000s) of jurors, but geographical and temporal variation

• written laws were generally sparser and more vague than in the Roman world

• a notable element of ancient Greek judiciary is the absence of a professional legal class

  • litigants largely represented themselves before lay jurors who also decided the dispute (but they could hire speechwriters)

  • rhetorical skills were nonetheless a central element of the trial

This is a great source: https://www.unpredictableblog.com/blog/Athens Also: https://acoup.blog/2023/04/07/collections-how-to-polis-101-part-iic-the-courts/

Greek jurors were very independent from the “government”, but the government itself was mostly weak because direct democracy with elected officials for everything every year

“Supreme Court” of Ancient Athens

• Heliaia, founded in the middle of the 500s BCE

• at its largest consisted of 6001 members chosen annually by lot from men over 30

• public, transparent gatherings where oral arguments were presented and informally discussed

• at the end of the trial, jurors¹ cast their ballot regarding the decision which was by majority

• magistrates handled the administration of the procedure (e.g. court calendar), but also decided minor (and homicide) cases in smaller courts

Most of our knowledge of ancient Greek judiciary comes from Athens starting in about 600 BCE. From the time of Pericles (5th century BCE), jurors were paid for service.

1. The Wasps by Aristophanes is a Greek play about an old man who is addicted to jury service.

The Trial of Socrates (399 BCE)

The Death of Socrates by Jacques-Louis David (1787)

Ancient Rome

• during the Roman Kingdom era (753-509 BCE), the king had absolute power and was thus the ultimate judge

• proliferation of Roman law (public and private) from about 300 BCE in response to territorial and economic growth

• magistrates (public officials) organized the first (pre-trial) stage of a trial

  • plaintiffs would come to them to request a remedy for a perceived infringement

  • defendants needed to consent to the litigation (but could be compelled)

  • the magistrate would describe the action and pass it onto the judge

  • the judge(s) was jointly agreed on by the parties

• lay judges heard witnesses and made decisions in public

• a powerful class of jurists – law experts – advised on what (they argued) the law was and advocates who argued on behalf of their clients

Quick overview

	Greece	Rome	Modern
Judges	❌	✅	✅✅✅
Juries	✅✅	✅	✅
Appeals	❌	❌	✅
Lawyers	❌	✅	✅✅
Oratory	✅✅	✅	✅
Form	Oral	Oral	Written
Precedents	Very limited	Limited	Common

Pre-modern “trials”

• there were decidedly pre-modern types of “trial” in the Middle Ages and before, typically mixing law, courts and religious beliefs

  • trial by oath: defendants could establish their innocence by taking an oath and getting a required number of people (often 12 in Europe, up to 50 in early Islamic law) to swear they believed the oath. Found in some countries as late as the 19th century

  • trial by ordeal: the accused was subjected to an (extremely) unpleasant experience to establish their innocence/guilt. Abolished in England after 1219

  • trial by combat: the winner of the fight was presumed to be legally “right”

• Peter Leeson makes the argument that ordeals were actually effective judicial tools

the guilty knew they would not pass the ordeal -> admitted guilt

the innocent expected God to intervene (eg not be burned by boiling water) -> took the ordeal

the ordeal was gamed by priests, so that many of those taking it would pass. The issue with the argument is that the priest was the de facto judge by choosing whether to make water hot or cold and subsequently evaluating the injury

Trial by ordeal

• most common types were trial by fire and trial by water, with many different variations on both

  • trial by fire: e.g. walking on red-hot metal, documented extensively in Medieval Europe, ancient Iran, India, Cambodia and elsewhere

  • trial by water: e.g. retrieving an item from boiling water or being thrown in cold water, documented in Mesopotamia, India, France, England, etc.

• if the wound was festering a few days later, this was usually taken as evidence of guilt

Trial by boiling water

Trial by boiling water, Sachsenspiegel law book (between 1220 and 1235)

Emergence of common law in England

• body of law developed by judges through precedent (case law)

• in the 1150s, Henry II (King of England) began sending judges from the royal court in London to the rest of the country to decide disputes

• over time, the judges built up a corpus of decisions which they perceived as binding (precedent) when a similar factual situation arose in a new case

• this “common” law gradually replaced divergent local laws and customs throughout the kingdom

Emergence of common law in England

• the common law system originally served by far the most the interests of the king

• it empowered judges, who could invoke the king’s authority, to an unprecedented degree

• the rule of binding precedent solidified the sense of judges’ belonging to a distinct and autonomous professional class (though guarantees of judicial independence were lacking until 1701)

• by the time the Parliament built up its legislative authority and Roman law was rediscovered in the 13th century, common law was sufficiently developed to remain the primary source of law for centuries

Civil law systems

• legal systems emerging from the idea of the primacy of codified written rules, notably the civil code

• much of European (and beyond) law has its roots in the Corpus Juris Civilis (534 CE, aka Code of Justinian) and in the related Napoleonic Code (1804)

• no binding precedent and judge-made principles – the judge as “the mouthpiece of the law” (Montesquieu)

Modern courts

• considerable convergence between civil and common law traditions over the last two centuries

  • even if not formally binding, civil law judges aim for consistency with previous decisions which are often de facto treated as precedents

  • statutory law made by parliaments is nowadays the most important source of new rules in common law countries and feature heavily in judicial decisions

• the principle of judicial independence as the cornerstone of the modern judiciary

• variation in the prevalence of juries and judicial review

Modern courts

• the court system in democratic regimes is seen as central to upholding the rule of law

• oversee to varying degrees both vertical and horizontal disputes

  • vertical: disputes between the state and individuals (e.g. administrative law)

  • horizontal: disputes between individuals (e.g. contract law)

• should ensure respect for the constitution, whatever form the latter might take, as well as individual’s fundamental rights

Rise of constitutions

Judicial review

• the proliferation of constitutions and rights was accompanied by an expansion in (peak) courts’ power through judicial review

  • the idea of distinguishing “higher” rules – historically often tied to religion (natural law) – and “lower” rules dates back to at least ancient Greece

  • constitutions made natural law into (interpretable, enforceable) positive law

• this is a core source of political tension under constitutionalism: how can anyone (i.e. a court) but the Hobbesian sovereign decide what is permitted?

• simply pointing to the law does not suffice – language is full of ambiguities, someone needs to interpret and apply it

French judges pre-revolution were big supporters of the ancien regime, which made them particularly disliked by the Enlightened thinkers

In contrast, in England judges were seen as relatively anti-monarchy and many of them would view judge-made common law as more important than statutes and decrees, which was a political problem for the King and the Parliament

Marbury vs Madison (1803)

• outgoing president John Adams appointed judges days before his term was over

• the appointment documents were failed to be delivered to half of the judges before the arrival of Thomas Jefferson to the presidency

• the new Secretary of State, James Madison, was told by Jefferson to not deliver them

• one of the refused judges, William Marbury, filed a lawsuit in late 1801

• the Supreme Court established it had the power to invalidate statutes deemed unconstitutional (but also found to have had no jurisdiction to force the government to deliver)

The person failing to deliver the commissions in time was John Marshall in the role of Secretary of State. He subsequently became the Chief Justice of the Supreme Court before the end of Adams’ term, which enabled him to rule on the case. Unanimous 4-0 decision.

Marbury vs Madison (1803)

It is emphatically the province and duty of the judicial department to say what the law is.¹

1. Marbury, 5 U.S. at 177.

Marbury vs Madison (1803)

Portrait of Chief Justice John Marshall (1832)

Marbury vs Madison (1803)

• judicial politics on many fronts

  • born out of a court packing effort

  • questionable impartiality of the opinion writer

  • case re-framed as a question of statutory constitutionality

  • navigating political conflict (between the Federalists and the Democratic-Republicans) and likelihood of compliance

  • seeking to strengthen the Court’s authority