The Origins of Courts

Week 1

Dr Michal Ovádek

Definitions

What are courts?

Mohr (1976, 623) 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.

What are courts?

Let’s distil the main elements from this definition:

• “governmental”

• “institutions” (= organizations)

• prominent 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)

• 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

• a court settles disputes between parties, including private and public entities

  • 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

• courts decide after hearing evidence and arguments from contending parties

  • the parties present evidence and argue their side of the case; the court decides the case as it is presented to it

• 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.

Module and assessment

Module

• all the information is on the website

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

• lectures + discussion seminars

• 3000-word research paper (100%)

• 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

No devices

• no laptops, tablets or phones in lectures or seminars

• bad for concentration, yours and that of the people around you (Sana, Weston, and Cepeda 2013)

• bad for retention, as we remember less of what we only half attend to (Glass and Kang 2019)

• technology and distractions are everywhere, so this gives us two hours a week of protected time and space

• the only exception is where your SORA requires a device

Seminars

• three mandatory readings a week

• prepare following the instructions on the website

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

• bring printed copies of the readings with your own annotations, plus hand-written or printed notes

• a randomly selected student introduces the readings and kicks off the discussion

  • your normal discussion notes are enough to do this

Methods

• much cutting-edge work uses sophisticated methods you will be unfamiliar with

• grappling with difficult texts is a great learning opportunity and a valuable skill in itself

• the point is not to understand every detail of every model and statistical procedure

  • but to distil the key points from difficult readings

Methods

• much of social science is about the impact of policies and decisions (treatments), while grappling with selection

\[ \begin{aligned} X &= g(Z) \\ Y &= f(X, Z) \end{aligned} \]

• \(X\) treatment, \(Y\) outcome, \(Z\) everything else shaping both, observed or not

• selection can be resolved

  • by design, e.g. experiments, with fewer assumptions

  • by adjustment, e.g. matching, with more assumptions

• we care less about the detail of \(g\) and \(f\) than about research designs

  • designs determine the quality of the evidence on a given question

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

• previous years:

  • 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

• 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

• impartial third-party arbiters who stop conflicts appear among captive chimpanzees (von Rohr et al. 2012)

• a key concern of early societies such as ancient Greece was the regulation of retaliation and blood feuds (Wolff 1946)

  • institutionalized retribution, most famously the Code of Hammurabi (“eye for an eye”) (Slanski 2012)

• Mesopotamia had written law collections by 2100 BCE and sophisticated judicial institutions (Slanski 2012)

  • multiple jurisdictions, widespread arbitration, public trials with evidence and witnesses

Third-party mediation (likely pre-dating syntactic language) is pro-social behaviour that can arise from concern for the community or as a non-violent avenue to power. Religious practices and priests were among the earliest forms of ‘law’ and ‘judges’.

Submission to arbitration or a community “judge” requires coordination; the risk was blood-feud spirals at family level, with similarities to 20th-century international law (state retaliation).

In Mesopotamia professional judges were only one kind of judge, widespread arbitration (private justice institutions) limited recourse to litigation, and trials had some supernatural elements.

Lawsuit in 20th–19th century BCE

Record of a lawsuit on a cuneiform tablet: two merchants accuse each other of stealing the contents of a private archive (Met Museum)

Ancient and modern courts

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

Greece: voluntary private arbitration coexisted with compulsory polis jurisdiction. Courts were separate from enforcement: a judgment could certify one party’s right of retribution (e.g. enslavement of the offender) rather than order anything, so judgments were often hard to enforce, but NB the social function of trials (Wolff 1946). The most important disputes were public trials before hundreds or thousands of lay jurors; written laws were sparser and vaguer than in Rome; there was no professional legal class, litigants represented themselves (they could hire speechwriters) and rhetoric was central. Greek jurors were very independent from the “government”, which was itself weak.

Athens’ Heliaia, traditionally traced to Solon’s reforms (c. 594 BCE), had up to 6000 members chosen annually by lot from men over 30; public oral arguments, majority ballot; magistrates ran the procedure and decided minor cases, while the Areopagus and other special courts tried homicide. Jurors were paid from the time of Pericles. Aristophanes’ The Wasps is about an old man addicted to jury service. The trial of Socrates (399 BCE): The Death of Socrates by Jacques-Louis David (1787) is in img/socrates-death.jpg if wanted. Sources: Carugati, Hadfield, and Weingast (2015), https://www.unpredictableblog.com/blog/Athens and https://acoup.blog/2023/04/07/collections-how-to-polis-101-part-iic-the-courts/

Rome: in the Kingdom era (753-509 BCE) the king was the ultimate judge. Roman law proliferated from about 300 BCE with territorial and economic growth. Magistrates ran the pre-trial stage (plaintiffs requested a remedy, defendants had to consent but could be compelled, the magistrate described the action and passed it to a judge agreed by the parties); lay judges heard witnesses and decided in public; jurists advised on what the law was and advocates argued for clients.

Pre-modern “trials”

• trial by oath, by ordeal and by combat mixed law with religious belief

• Leeson (2012) argues that ordeals were effective judicial tools

Trial by boiling water, illustration from a Sachsenspiegel manuscript

Oath: defendants established 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 it; found in some countries as late as the 19th century. Ordeal: most commonly fire (walking on red-hot metal) or water (retrieving an item from boiling water); abolished in England in 1219. Combat: the winner was presumed to be legally “right”.

Leeson’s accessible version: https://aeon.co/ideas/why-the-trial-by-ordeal-was-actually-an-effective-test-of-guilt

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

Common and civil law

• common law: from the 1160s royal judges sent across England replaced many local customs with law common to the whole kingdom

  • it empowered judges and made them a distinct professional class, though independence was guaranteed only in 1701

• civil law: primacy of codified rules, from the Corpus Juris Civilis (534 CE) to the Napoleonic Code (1804)

  • no binding precedent – the judge as “the mouth that pronounces the words of the law” (Montesquieu 1748)

Henry II began sending judges from the royal court in London to decide disputes across the country after the Assize of Clarendon (1166). The law they applied replaced many local customs with national law that applied to everyone, the “common” law, originally serving mostly the interests of the king.

Modern courts

• civil and common law traditions have converged

  • civil law judges treat previous decisions as de facto precedents

  • statutes are now the main source of new rules in common law countries

• judicial independence is the cornerstone of the modern judiciary; juries and judicial review vary

• courts are central to the rule of law in democracies

  • vertical disputes (state v individuals) and horizontal ones (between individuals)

  • upholding the constitution and fundamental rights

From constitutions to judicial review

Rise of constitutions

Judicial review

• the proliferation of constitutions and rights was accompanied by an expansion in (peak) courts’ power through judicial review (Ginsburg and Versteeg 2014)

  • 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 v Madison (1803)

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

• some of the appointment documents were not delivered before Thomas Jefferson took office

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

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

• the Supreme Court established its power to invalidate unconstitutional statutes but found it lacked jurisdiction to order delivery

The person responsible for delivering the commissions in time was John Marshall as acting Secretary of State. He had already been named Chief Justice in January 1801 and held both posts until the end of Adams’ term, which enabled him to rule on the case. Unanimous 4-0 decision. Portrait of Marshall (1832) is in img/john-marshall.jpg if wanted.

Marbury v Madison (1803)

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

1. Marbury v Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

Marbury v 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

Judicialization of politics

Judicialization of politics

• the process of power shifting towards courts (and legal institutions) from other branches of government, especially the legislature (Ferejohn 2002)

• courts become an important site for settling issues of public policy

• political actors and action become constrained by court rulings

• who should ultimately decide matters of public policy?

Judicialization

• three ways courts have become empowered vis-à-vis the legislatures (Ferejohn 2002):

  1. creation of substantive limits on legislative power
  2. policy-making through litigation and judicial precedent
  3. the regulation of political activity and enforcement of standards

Judicialization

There is hardly any political question in the United States that sooner or later does not turn into a judicial question. From that, the obligation that the parties find in their daily polemics to borrow ideas and language from the judicial system. Since most public men are or have formerly been jurists, they make the habits and the turn of ideas that belong to jurists pass into the handling of public affairs. The jury ends up by familiarizing all classes with them. Thus, judicial language becomes, in a way, the common language; so the spirit of the jurist, born inside the schools and courtrooms, spreads little by little beyond their confines; it infiltrates all of society, so to speak; it descends to the lowest ranks, and the entire people finishes by acquiring a part of the habits and tastes of the magistrate.

Alexis de Tocqueville, Democracy in America (1835)

What courts decide today

1. Policy: e.g. rulings on the “pesification” of the Argentinian economy (2003-4)

2. Electoral: Romania’s Constitutional Court annulled the first round of the 2024 presidential election; Brazil’s electoral court barred Bolsonaro from office until 2030 (2023)

3. Constitutional: South Africa’s Constitutional Court refused to certify the new constitution until it was amended (1996); Israel’s Supreme Court struck down the 2023 amendment barring reasonableness review of government decisions (2024)

4. Identity: the Turkish Constitutional Court’s party bans (1998-2009); India’s Supreme Court on Ayodhya (2019)

5. Executives: South Korea’s Constitutional Court upheld the impeachment of President Yoon (2025)

• none of these courts commands an army or a budget

the Turkish court eg banned parties which promised to undermine the secularist tradition

Argentinian SC declared unconstitutional the forced conversion of US dollars to pesos

another example of electoral is Bush v Gore (2000) where 5 judges decided to stop the recount in Florida. The recount could have overturned the result in Gore’s favour

Why would the losing side accept the verdict of a third party?

References

Carugati, Federica, Gillian K. Hadfield, and Barry R. Weingast. 2015. “Building Legal Order in Ancient Athens.” Journal of Legal Analysis 7 (2): 291–324. https://doi.org/10.1093/jla/lav003.

Ferejohn, John. 2002. “Judicializing Politics, Politicizing Law.” Law and Contemporary Problems 65 (3): 41–68. https://doi.org/10.2307/1192402.

Ginsburg, Tom, and Mila Versteeg. 2014. “Why Do Countries Adopt Constitutional Review?” Journal of Law, Economics, and Organization 30 (3): 587–622. https://doi.org/10.1093/jleo/ewt008.

Glass, Arnold L., and Mengxue Kang. 2019. “Dividing Attention in the Classroom Reduces Exam Performance.” Educational Psychology 39 (3): 395–408. https://doi.org/10.1080/01443410.2018.1489046.

Leeson, Peter T. 2012. “Ordeals.” The Journal of Law and Economics 55 (3): 691–714. https://doi.org/10.1086/664010.

Mohr, Lawrence B. 1976. “Organizations, Decisions, and Courts.” Law & Society Review 10 (4): 621–42. https://doi.org/10.2307/3053299.

Montesquieu. 1748. The Spirit of the Laws.

Sana, Faria, Tina Weston, and Nicholas J. Cepeda. 2013. “Laptop Multitasking Hinders Classroom Learning for Both Users and Nearby Peers.” Computers & Education 62: 24–31. https://doi.org/10.1016/j.compedu.2012.10.003.

Slanski, Kathryn E. 2012. “The Law of Hammurabi and Its Audience.” Yale Journal of Law & the Humanities 24: 97–110. https://openyls.law.yale.edu/server/api/core/bitstreams/81efb5aa-9fea-4f81-8062-55f94f2f1b2b/content.

Tocqueville, Alexis de. 1835. Democracy in America.

von Rohr, Claudia Rudolf, Sonja E. Koski, Judith M. Burkart, Clare Caws, Orlaith N. Fraser, Angela Ziltener, and Carel P. van Schaik. 2012. “Impartial Third-Party Interventions in Captive Chimpanzees: A Reflection of Community Concern.” PLoS ONE 7 (3): e32494. https://doi.org/10.1371/journal.pone.0032494.

Wolff, Hans Julius. 1946. “The Origin of Judicial Litigation Among the Greeks.” Traditio 4: 31–87. https://doi.org/10.1017/S036215290001549X.