L A W AND

LAW A N D POLITICS
POLITICS
Critical Concepts in Political
Political Science

Edited by
Edited by
Keith E.
Keith E. Whittington

Volume IV
IV
Comparative and
and International
International Issues
Issues

11
Il Routledge
Routledge
T b y l&oFr•nds
T•ylof r & …Group
úwp
LONDON
LONDON AND NEW YORK
YORK
 INTRODUCTION
INTRODUCTION

Much empirical study of

Much of the empirical of the politics
politics of law andand courts hashas focused
focused
United States.
on the United
on Nonetheless, there is aa long
States. Nonetheless, long tradition within political
political
of study of
science of of the legal andand court systems in countries other than the
United States and
United and inin the international
international aarena. century,
rena. In the early twentieth century,
the study of comparative law was an an important component of the research research
and teaching agenda in both
and both American law schools and political science
and political
departments. Globalisation
departments. Globalisation was very much much onon the minds of early twentieth
scholars, who were likewise
century scholars, interested in identifying
likewise interested identifying potentially
universal principles of law.
universal principles law. Scholars not only regarded substance of such
regarded the substance
asRoman
subjects as Roman law, international law,
law, international law, and constitutional and
and comparative constitutional and
commercial law as
commercial as important for the legallegal and political training of American
and political
lawyers and
lawyers political practitioners,
and political practitíoners, but also became increasingly interested interested
understanding the diversity of legal
in understanding legal institutions,
institutions, rules
rules and practice. In the
and practice.
postwar oriented judicial scholars turned some of
period, empirically oriented
postwar period, of their
attention to judicial behaviour in various jurisdictions, in order both
attention under‑
both to under-
stand the different ways that judges operated
stand operated within their own systems and and
understand the differences in judicial politics
to understand politics across jurisdictions. Early
work by Theodore Becker Becker {1970), Glendon Schubert and
(1970), Glendon and David Danelski
David Danelski
(1969)
(1969) and
and Walter Murphy
Murphy (1973)
(1973) took the research
research questions and and methods
methods
had been
that had applied to the study of
been applied of American courts and carried them
and carried them to
systems. Other scholars gradually followed.
other judicial systems. followed.
Martin Shapiro's
Martin Shapiroºs book Courts: Comparative and
Couns: A Comparative and Political
Political Analysis offered
aa suggestive and examination of
sweeping examination
and sweeping of the role
role of courts within broader
political systems. Rather
political than examining
Rather than decision‑
examining the politics of judicial decision-
making, Shapiro
making, focused his
Shapiro focused attention on
his attention on the function
function that courts performed
performed
Within aa system
within system of of governance (Chapter 44). Looking across aa variety of
44). Looking of
political systems, Shapiro
political operating not so
found courts operating
Shapiro found much to neutrally
so much
law but to make
apply the law make andand administer government policy while resolving resolving
confiicts. Courts
social conflicts.
social Courts are understood as
are best understood asextensions of the government
than as
rather than
rather as independent tribunals.
 INTRODUCTION
INTRODUCTION

Judicial independence
independence and
and legitimacy
A
A key puzzle
puzzle for contemporary
contemporary scholars of of comparative judicial systemssystems isis
whether and and how independent courts are possible. Shapiro emphasised emphasised that
courts are
are anan extension
extension of the political
political system,
system, but anan independent judiciary
is
is generally considered to
considered be a be a virtue. How
How do courts serve the political func-
political func‑
tions that they generally perform
perform while maintaining
maintaining some level of independence
level of independence
from
from politicians
politicians andand powerful members of society? In an
powerful members an influential
inñuential article,
article,
Mark
Mark Ramseyer
Ramseyer arguedargued that judicial independence depended depended on the exist‑ exist-
ence of aa competitive political
ence political system
system (Chapter 45).45). Dominant political actors
Dominant political
had
had little need or tolerance for independent-minded
little need independent-minded judiciaries. Politicians
Politicians
under
under threat of replacement found
found greater value in courts that could
could check
political power. The political
political power. The political context determined how independent courts
were likely to be. be. Matias
Matías Jaryczower,
Iaryczower, Pablo
Pablo Spiller andand Mariano Tommasi
(Chapter 46) 46) emphasise related, explanation for judicial
emphasise aa different, but related,
independence. In
independence. ln their study of independence in the 'unstable
of judicial independence “unstable environ-
environ‑
ment' of Argentina, they argue that political
ment' political fragmentation
fragrnentation creates the space
for independent judicial action.action. The more uniñed the government, the more
more unified
likely judges are are to defer to the preferences of of government leaders.
leaders.
Others have
Others highlighted the political
have highlighted political supports for an an active judiciary. James
Gibson, Gregory Caldeira and
Gibson, and Vanessa BairdBaird (Chapter 47) have have explored
degree of
the degree for the courts in the mass public.
of support for public. Their work suggests
that courts often benefit from
often benefit from aa public embrace of the judiciary, though the
degree of support that courts receive receive varies across countries. Ran Ran Hirschi
Hirsch]
instead on the specific connections between
focuses instead
focuses between courts and and particular
factions within aa political
factions political system.
system. ln his study of
In his of courts in the Middle East
(Chapter 48),
(Chapter finds that judges are often allied
he finds
48), he more secular forces
allied with more
in society against more religious forces.
more religious crucial aspect of
forces. The crucial of courts in his
his
analysis is
analysis is not their grounding broad national
grounding in aa broad national consensus but their par‑ par-
factional uses
ticular factional by elites.
uses by

Law and
Law and comparative political economy
comparative political
been aa renewed
has been
There has renewed interest in recent years in the possible signific-
signific‑
ance of
ance legal arrangements
of legal arrangements for affecting development. One strand
affecting economic development. strand
this research
of this research is reñected in Douglass
is reflected Douglass North Beny Weingast's study of
and Barry
North and of
'Constitutions and
'Constitutions and Commitments' {Chapter North and
(Chapter 49). North and Weingast havehave
concemed with
andjointly concerned
been separately and
been with the ways in which legal
legal institutions
precommitment devices that help
asprecommitment
can serve as
can political systems and
help stabilise political and
secure rights
secure Effective constitutional arrangements,
protections. Effective
rights protections. arrangements, in this view,
can provide
can assurances to potentially mobile
provide assurances mobile and interests and
and dissenting interests and
encourage them
encourage them to cooperate in creating a
a more robust political and eco‑
political and eco-
nomic system
nomic exchange for meaningful
system in exchange promises to protect their interests.
meaningful promises interests.
Constitutional protection
Constitutional protection for property owners leads investments, monetary
leads to investments,

2
 44
44
T H E PROTOTYPE
THE P R O T O T Y P E OF
O F COURTS

Martín Shapiro
Martin Shapiro

Source: Martin Shapiro, Courts,

Martin Shapiro, Chicago: University
Courrs, Chicago: of Chiwgo
University of Chicago Press, 1981, 1‐35.
1981, pp. 1- 35.

Students of of courts have employed an

have generally employed an ideal
ideal type, or really a a proto‑
proto-
involving (1)
type, of courts involving an independent judge applying
(1) an applying (2)
(2) preexisting
preexisting
legal norms
legal norms after (3) prooeedings in order to achieve (4)
(3) adversary proceedings dicho‑
(4) aa dicho-
tomous decision in which one of the parties was assigned the legal legal right
and the
and the other found
found wrong. political juri5prudenoe'
growth of political
wrong. The growth jurisprudence 1 has been
been
characterized largely by
characterized by the discovery and and emphasis of deviations from the
prototype found in the behavior of particular courts,
prototype found showing how uncourt-
courts, showing uncourt‑
like courts are
like how much
are or how much they are like other political
are like political actors. While some
political scientists and
political and many lawyers have continued to protest against this
lawyers have
approach, they have
approach, have done so so largely reasserting the prototype.2
larger by reasserting prototype. 2 Such
Such aa
tactic isis unconvincing
unconvincing because, we examine what we
if we
because, if we generally call courts
across the full
across full range
range of
of contemporary and and historical
historical societies, the prototype
prototype
fits almost none
fits none of Defense of the prototype thus seems fruitless
of them. Defense fruitless.. A
study of courts that is is essentially the measurement of from aa type
of deviance from
that isis rarely approximated in the real
rarely approximated real world would appear to be be equally
fruitless.
fruitless.

The logic triad in conflict resolution

logic of the triad resolution
Perhaps would be
Perhaps it would be wise to begin
begin over, employing
employing aa root concept of "court-
“court‑
ness”
ness" but more
more freely accepting
accepting the vast variety of actual
actual social institutions
institutions
and behaviors
and related to that concept without worrying about where
behaviors loosely related
“true courtness"
"true courtness” ends andand something else begins. For in reality there are few
else begins.
if societies in which courts are
if any societies so clearly delineated
are so delineated as
asto
to create absolute
boundaries between
boundaries between them and other aspects of the political
them and political system.
system.
The root concept employed
The here is
employed here is a structured
a simple one of conflict structured
triads.33 Cutting
in triads. across cultural
quite across
Cutting quite cultural lines, appears that whenever two
lines, it appears two
persons
Pºrscns come
come into a conflict that they cannot themselves solve, one solution
into a
appealing common sense is
aPpt=aling to common is to call
call upon
upon aa third for assistance in achieving
achieving

5
 COMPARATIVE AND
C O M PA R AT I V E A N D INTERNATIONAL
INTERNATIONAL ISSUES
ISSUES

a resolution.
a resolution. So universal across
So universal across both
both time
time and
and space
space isis this
this simple
simple social
social
invention of triads that we can discover almost no society that
invention of tn'ads that wecan discover almost no society that fails to emplcy fails to employ
it.
it. And
And from
from its overwhelming appeal
its overwhelming appeal to to common
common sensesense stems
stems the the basic
basic
political legitimacy of courts everywhere. In short, the triad for purposes of
political legitimacy of courts everywhere. In short, the triad for purposes of
conflict resolution
conñict resolution is is the
the basic
basic social
social logic
logic ofof courts,
courts, a a logic
logic soso compelling
compelling
that courts have become
courts have become a a universal
universal political
political phenomenon.
phenomenon.
The triad,
triad, however,
however, involves
involves aa basic instability,
instability, paradox,
paradox, or dialectic that
accounts for a
accounts a large proportion of the scholarly quarrels
large proportion quarrels over
over the nature
nature of
of
courts and
courts and the political difficulties
political difñculties that courts encounter
courts encounter in the real world.
real world.
At
At the moment
moment the two two disputants find their third, third, the social
social logic of the
court device is preeminent.
preeminent. A momentmoment later, when the third decides decides in favor
of one of the two disputants, aa shift occurs from
two disputants, from the triad to aa structure
structure that
is
is perceived
perceived by the loser loser as
as two against one. To the loser there is
one. To is no social
social
logic in two against one. one. There is is only the brute
brute fact of being
being outnumbered.
outnumbered.
A substantial portion of the total behavior of courts in all
substantial portion all societies can be be
analyzed
analyzed in terms of
of attempts to prevent the triad from breaking
breaking downdown into
into
one. 4
w o against one.4
ttwo

Consent
Consent
The most fundamental
fundamental device for maintaining
maintaining the triad is is consent.
consent. Early
Early
5
Roman
Roman law procedures provide
provide a a convenient example.
example.5 The two parties
parties at
issue first met to decide under what norm
issue norm their dispute
dispute would be be settled.
settled.
Unless
Unless they could agree on a
could agree a norm,
norm, the dispute could could not go forward
n o t go forward in
juridical channels.
channels. Having agreed on the norm,
Having agreed norm, they next had had to agree
agree on
on
a
a judge, aa third person
person who would find find the facts and apply the previously
facts and
agreed
agreed upon
upon normnorm to settle their dispute. eventual loser was placed
dispute. The eventual placed in
position of having
the position having chosen both both the law and
and the judge and
and thus of having
having
consented to the judgment rather than having having hadhad it imposed on him
it imposed him..
The almost universal reluctance of
universal reluctance proceed in the absence
of courts to proceed absence of one
of is less
parties is
of the two parties less aa testimony to the appealappeal of of adversary processes
processes
than it isis aa remnant of of this emphasis on consent,
consent, of of both parties themselves
both parties
choosing the triadtriad as
as the appropriate
appropriate device resolution. In early
device for conflict resolution.
law, courts were frequently thwarted by the absence
English law,
stages of English absence of one
of the parties, and medieval
parties, and procedure is full
medieval procedure of elaborate devices for enticing
full of
or compelling unwilling party into
compelling the unwilling into court rather than than proceeding
proceeding without
him.“
him. 6 Modern
Modern British
British and practice still
and American practice still prefers extended
extended delay to
absence of
the absence of one ofof the parties, and in many tribal
parties, and anthropo‑
tribal societies the anthropo-
proceed without all
reluctance to proceed
logist encounters the same reluctance all three members
of the triad and comparable devices to cajole or coerce attendance.
triad and attendance.77
All of this can, of course,
course, bebe put in the form political ques-
form of the classic political ques‑
tion: Why should loser is told that he
should I] obey? The loser should obey the third
he should third man
man
because he
because he has consented in advance
has consented advance to obey. He has chosen the norm
has chosen of
norm of
decision. He
decision. He has chosen the decider.
has chosen decider. He hashas thus chosen to obey the decision.

6
 THE
T H E PROTOTYPE OF
PROTOTYPE O COURTS
F COURTS

The mediaring continuum

The mediating Cºntinuum
Nearly every triadic conflict resolver adds
Nearly adds another device to consent in order
avoid the breakdown
to avoid breakdown into one. This device is
t w o against one.
into two is the avoidance
dichotomous, imposed
of the dichotomous, imposed solution.
solution. In ln examining triadic conflict conñict resolu‑
resolu-
tion asasa phenomenon, we
universal phenomenon,
a universal we discover that the judge of European European or
Anglo-American courts, courts, determining that the legal legal right lies lies with one and and
against the other of the parties, parties, isis not anan appropriate central type against
which deviance can be be conveniently measured. Instead he
measured. Instead lies at one end of
he lies of
continuum. The continuum runs: go‐between,
aa continuum. mediator, arbitrator,
go-between, mediator, arbitrator, judge.
And placement on
And on the continuum is determined by the intersection
is determined intersection of of the
devices of consent and nondichotomous,
devices nondichotomous, or mediate, solution.
mediate, solution.
The go-between is is encountered
encountered in many forms. forms. In ln tribal or village societies
he may be
he be any person,
person, fortuitously present and and not n o t connected with either
of the households, villages,
the households, villages, or clans in a& dispute,
dispute, who shuttles back and and
forth between
forth between them
them as asa of negotiation.8 He
a vehicle ofnegotiation. 8
He provides communication
without the dangerous physical physical contact between
between the disputants that would
otherwise be be required.
required. In more modern guise we
more modern we find him him as as the sovereign
offering "good
offering offices” in an
“good offices" international dispute or the real
an international real estate broker
shuttling between
shuttling between seller and prospective buyer and
and prospective and carefully keeping keeping them
negotiation stage.
apart at the negotiation stage. The go-between seems to operate in a a pure
consent,
consent, pure mediate-solution situation. He
pure mediate-solution He cannot functionfunction at all unless unless
both parties
both parties consent to his offices and
his ofñces and the solution reached reached is is the product
free negotiation
of free between the parties and
negotiation between and is satisfactory. And in
is mutually satisfactory.
theory, all all resolutions
resolutions offered and and accepted
accepted are purely those of of the parties
themselves.
themselves.
reality, however,
In reality, go‐between is
however, the go-between is not aa mindless
mindless communicator. He He
influence by "rephrasing"
exerts influence “rephrasing” the messagesmessages he delivers. He
he delivers. He may manage
manage
slip in aa fair number
to slip number of of proposals of of his own. And by his
his own. his characterization
ñexibility or inflexibility
of the flexibility inñexibility of eacheach side to the other, he he may strengthen
or weaken the the bargaining position of one or the other.
bargaining position other.
The mediator is is somewhat more open in his
more open his participation
participation in the triad.
He can
He can operate only with with the consent of both parties. He
both parties. He may not impose impose
solutions. But he
solutions. he isis employed
employed both both as as aa buffer between
between the parties and as
and as
an inventor of mediate
an solutions. By
mediate solutions. By dealing with successive proposals and
dealing with and
counterproposals, he
counterproposals, activer and
he may actively and openly assist in constructing a solution
interests of both
meeting the interests
meeting parties.99
both parties.
distinction between
The distinction mediation and
between mediation and arbitration
arbitration in any particular
society is is a matter of legal nuance
of legal nuance and and often
often the subject of of bitter controversy,
particularly in such such areas as as labor
labor arbitration.
arbitration. Often distinction is
Often too the distinction
between voluntary and
made between
made binding arbitration.
and binding arbitration. For For our purposes we we may
arbitration generically and
treat arbitration and speak of it as as involving
involving less less consent by by the
parties and less mediate
parties and less mediate solutions than mediation. Persons
than mediation. Persons are are not norm‑
norm-
ally
ally compelled
cºmpelled to to consent
consent to to arbitration.
arbitration. In this sense
In this sense thethe arbitrator,
arbitrator, like
like the
the

7
 COMPARATIVE
C O M PA R AT I V E AND
A N D INTERNATIONAL
¡ N T E R N A T I O N A L ISSUES
ISSUES

mediator and and the go-between, cannot

the go‐between, cannot function without the the consent
consent of of both
both
parties. In modern societies, however,
parties. ln modern societies, however, arbitration arbitration clauses frequently appear
in contracts
contracts so so that the consent is is somewhat attenuated. It lt is
is not
not consent
consent of
the moment to the arbitration
arbitration of the moment but advance consent to future future
arbitration in general.
arbitration general. Yet even such contracts almost invariably specify that
such contracts
the twotwo parties
parties must
must in each instance
instance agree
agree on on who the arbitrator shall shall be.be.
The key distinction between between the mediator and and arbitrator, however,
however, is is
that the arbitrator is is expected to fashion his own resolution
fashion his own resolution to the conflict
conñict
rather than simply assisting
assisting the parties shaping one of
parties in shaping of their own.
own. And his his
solutions are are not purely mediated number of senses. First,
mediated in aa number First, arbitrators,
arbitrators,
unlike mediators
unlike mediators and and go-betweens,
go‐betweens, usually work with aa relatively fixed fixed set
of legal
legal norms, analogous
analogous to that of of the early Roman
Roman judge. The parties have have
consented
consented to, to, or themselves constructed in advance, norms to which they
advance, the norms
will
will now be subject. If
be subject. If in aa given dispute one party has has violated these norms norms
more
more than the other, it is not expected
other, is n o t expected that the arbitrator arrive
arrive a com-
at a com‑
promise solution purely on the basis of of the interests
interests ofof the parties and and quite
apart from their obedience to the preexisting preexisting norms. Moreover, arbitration
Moreover, arbitration
is
is frequently "binding"
“binding” either by statute or under the terms of the contract.
The arbitrator has legal authority to impose
has the legal impose his his solution on on both parties
both parties
even if if one or both
both do do not
n o t voluntarily consent to to the solution."
solution.”'º 10

Nevertheless, societies tend to turn to arbitration

Nevertheless, arbitration in situations in which,
although
although overarching legal legal norms
norms may exist,
exist, the most salient concerns are are
interests of the ttwo
the interests w o parties, neither of which is
parties, neither is assigned
assigned greater legitimacy
than the other. Mediate solutions acceptable to both
other. Mediate both parties are are the goal, and,
as aa practical
as practical matter, arbitrators would find much
matter, few arbitrators much employment if if they
did not develop aa record
did record of providing solutions." Of course this isis all
providing such solutions.'' all the
“nonbinding” arbitration, in which the parties
more true in "nonbinding" parties need
need n not
o t accept
arbitrator's resolution.
the arbitrator's resolution. In ln American labor law, for instance,
instance, aa distinction
distinction
is often made
is often between "rights"
made between arbitration and
“rights” arbitration arbitration. In
“interest” arbitration.
and "interest" ln most
labor-management contracts there are some provisions provisions that set out with aa
relatively highhigh degree of of specificity and duties of the two parties
rights and
speciñcity the rights parties
another. When
relation to one another.
in relation When a a dispute provisions is
under one of these provisions
dispute under is
submitted to arbitration, both both parties expect the arbitrator to decide who
provide aa mediate
rather than provide
was legally right rather solution. The same union
mediate solution. union and and
company may submit other kinds kinds ofof disputes not covered by such precise precise
contract terms to the same arbitrator and mediate solutions.
and expect mediate
When arbitration
arbitration is is in no binding, it merges
no sense binding, mediation. When
merges with mediation.
arbitration is
arbitration is binding, both in the sense that the two parties must go
binding, both arbitra‑
go to arbitra-
tion on demand of either and
on the demand and must then abide by by the arbitrator's holdings,
it tends to merge into judicial judgment. This is
merge into instances
is particularly true in instances
such as arbitration,” when
“rights arbitration,"
as "rights when the
the arbitrator is is expected reach aa legally
expected to reach
correct rather than aa mediate
rather than mediate solution even even though the "law" “law” is is that created
created
bya
by a mutually agreed between the parties.
agreed contract between arbitration is
parties. When arbitration is bind-
bind‑
ing and
ing and dichotomous solutions are “arbitrator” in fact
are expected, then the "arbitrator"

8
 THE P
THE ROTOTYPE O
PROTOTYPE OFF C OURTS
COURTS

becomes aa kind
becomes of private judge, that is
kind of is one who judges rather than mediates
hold the governmental
does not hold
but does govemmental office of of judge. The very fact that he he
does not hold such an
not hold an office but is parties, rather than imposed
is chosen by the parties,
on them,
on preserves aa greater element of consent that continues to distinguish
them, preserves
him from
him official judge.
from the official
favored tactics for relieving
Recently one of the favored
Recently civil courts
relieving delay in the civil
adoption of systems of compulsory arbitration
been the adoption
has been
has arbitration in which suits
involving relatively small amounts of money are assigned
involving assigned to "arbitrators"
“arbitrators”
rather than
rather than tried before aa judge. Such
tried before Such aa system is arbitra‑
is not really one of arbitra-
tion but one of cheap judging. The arbitrator is expected to arrive at the same
is expected
decision under
decision under the same law as as would a a judge. The parties usually do not
arbitrator. He
choose the arbitrator.
choose uses simpler procedures and carries aa lower over‑
He uses over-
head of courtroom costs than
head than a judge and
and thus handles
handles more
more cases at smaller
cost. Such systems thus allow the appointment of
cost. Such of aa great many temporary
judges by avoiding constitutional,
by avoiding constitutional, statutory,
statutory, and budgetary limitations on
formal appointments.'2
formal judicial appointments. 12

The substitution of
The substitution of law
law and office far
and office for consent
ln turning
In turning now
now to judges, we we return problem of consent and
return to the problem and to our
Roman example.
Roman example. As societies become more more complex, they tend to substitute
law for the particular consent of the parties
law parties to aa particular norm norm for their
dispute. They also
particular dispute. also substitute oñice
office for their free
free choice of a particu‑
particu-
third man
lar third man to aid aid in the resolution dispute. The earliest Romans
resolution of their dispute. Romans
might seek the aid
might aid of anyone
anyone in formulating
formulating aa norm.
norm. They came more more and
and
more to turn to city officials for this assistance.
more Edict, which
Praetorian Edict,
assistance. The Praetorian
the closest thing
was the thing to a civil code that Rome Rome as as aa city attained, long took
attained, long
the form
form of
of aa series of
of norms
norms that such an an official announced
announced he he would supply
contending parties
to contending request. It was initially not aa body of preexist‑
parties at their request. preexist-
ing law
ing law but aa catalogue of "ready-made"
“ready-made" goods that replaced replaced the still earlier
practice of "tailoring"
practice norms for each pair of disputants.
“tailoring” norms disputants. As As the practice grew
which each of
under which of the new reenacted the edict of
new praetors reenacted of his predecessors,
his predecessors,
wecan
we can literally see what beginsbegins asa legal advice to mutually
free legal
as a system of free
consenting parties
consenting becoming aa set of preexisting
parties becoming preexisting compulsory legal rules. A
legal rules.
parallel
parallel development can be be seen in the writings of of the jurisconsults, which
begin as
begin as professional
professional legallegal advice
advice to the praetors
praetors and litigants and
and litigants and end as
end as
operative parts
operative of the Code
parts of Code of of Justinian.”
Justinian. 13
key factor in the shift from
The key from consent to Jaw law is specificity. Ethnographic
is specificity.
and sociological materials
and sociological materials make make clear that in only a limited number of
a very limited
special
Special situations do do litigants
litigants literally makemake their own rule rule of decision free
all preexisting
of all norms.“
preexisting norms. 14 At the very minimum
minimum there is is aa social sense of
of
appropriateness
aPpr0priateness or natural
natural justice, of
of how we
we always do things or what we
we
never do, of
never of the suggested by the Tiv informant who says of
the sort suggested of what
we would
we call aa lawbreaker that he
would call he "spoils tjar." 15 We
“spoils the tjar.”'º We may express this

9
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ISSUES

consensus
consensus in in terms
terms of custom or
of custom or fundamental
fundamental principles
principles of of ordered
ordered liberty
liberty
o r, as the Tiv does, asa psychic harmony of men and nature. It creates the
or, as the Tiv does, as a psychic harmony of men and nature. It creates the
constraints under which which prospective
prospective litigants
litigants shape aa norm norm for themselves.
Indeed,
lndeed, muchmuch of judicial ritual, ritual, particularly in the holding holding of public trials, trials,
consists of reminding
reminding the litigants
litigants that as good
as good men men they must
must consent to the
overarching norms norms of of their society.
society. Yet the more more nebulous
nebulous these norms, norms,
greater the element of immediate
the greater immediate and and real
real consent
consent in achieving
achieving aa pre- pre‑
cise working rule rule for a a particular case. case. At one extreme we wefind find two disputing
disputing
villagers working
working with an an elder to settle the ownership of of aa pig
pig according
according to
the ways of of the ancestors.
ancestors. If If any rule of decision
rule of decision is is actually formulated,
formulated, it
is
is likely to arise out of the adeptness of the elder in eliciting
eliciting the face-to-face
face-to-face
consent of the parties. At the other extreme we we find litigants
litigants in aa modernmodern
industrial state who discover at trial that their earlier behavior was governed
industrial governed
by aa detailed
detailed preexisting
preexisting rule, even the existence
rule, even existence of which was unknown unknown to
them
them at the time and and which they consent to only in the generalized, generalized, abstract
sense that all all citizens agree to live live under the laws laws of of the state. The judge, then, then,
unlike
unlike the mediator, imposes
mediator, imposes “his” rule "his" rule on the parties rather than eliciting
parties eliciting
aa consensual
consensual one. one.
Moreover,
Moreover, the partiesparties may not specifically consent even to who shall impose
shall impose
his rule
his rule or decide under under it. it. The most purely consensual situation is one in
consensual situation
which the disputants choose who shall assist them in formulating formulating aa rule rule
and who shall
and shall decide the case under it, as
under it, as the Romans
Romans initially did. ln most
did. In
societies, however, there seem to be
societies, however, instances in which it
be instances it pays to choose aa big big
man to do these tasks,
man tasks, whether a government official like the urban
official like urban praetor
or,
o r, as
as among Papuans, the owner of many pigs.'º
among the Papuans, pigs. 16 The disputants may
turn to the big big manman because he knows more
he knows more of of the law and and custom, because
custom, because
he has
he has the economic, political, or social
economic, political, social power to enforce his his judgment, or
because his his success or high high position
position is is taken
taken as as aa symptom of his skill and and
intelligence at resolving disputes. Beyond
resolving disputes. Beyond and and perhaps out of this tendency
to consent to judging by big big men, many societies develop the office
men, many office of
of judge
so that the parties do not choose their judge. If
so If they choose to go go to court at
all. they must accept the official
all, official judge. The ultimate
ultimate step,
step, of course,
course, is is in those
which aa legal
instances in which
instances legal system not only imposes imposes the law and and the officer
ofñoer of of
the law but also also compels one or both both parties to resort resort to legal legal processes,
processes, as as
in aa criminal trial or civil
criminal trial civil suit.
suit. The judge, then, unlike the mediator,
then, unlike imposes
mediator, imposes
himself on the parties rather rather than than being chosen by them.
being chosen them.
He also may impose
He also impose his his resolution
resolution of their conflict.conflict. It It is possible to
is possible
envision a system in which
a system parties were compelled
which the parties compelled to accept the rule rule
of decision
decision andand the personperson of of the judge but were not compelled to accept
not compelled
decision. Compulsory nonbinding
his decision.
his arbitration sometimes comes down
nonbinding arbitration down
to this.
this. That is, is, the parties may
parties may be be compelled by statute or a
a contract provi‑
provi-
sion to go
sion arbitration if
go to arbitration if aa contract provision
provision is dispute, but the same
is in dispute,
statute and/or contract may may not compel them to accept the arbitrator's award.
arbitrator's award.
Under the divorce procedures
Under procedures of many many jurisdictions, ranging ranging from from somesome of of the

10
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 T H E PROTOTYPE
THE OFF COURTS
PROTOTYPE O COURTS

American states to many Communist countries, countries, those seeking aa divorce must
counseling” by persons either licensed
“marriage counseling"
first submit to "marriage licensed or employed
by the government.
government. They need need nnot o t accept the "advice"
“advice” of of the counselor they
are
are compelled to see. see. But they may only proceed proceed with the divorce after
have heard
they have heard the advice and rejected it.
and rejected ln some societies the losing
it. In losing party
to one litigation
to litigation might refuse refuse the decision
decision and and resort to another forum forum or
banishment. Appeal and
accept banishment. pardon processes sometimes exhibit this
and pardon
feature,
feature, as instance in "de
as for instance novo” appeals,
“de novo" appeals, in which the dissatisfieddissatisñed party
may get an an entirely new trial from
new trial from aa higher court. court.
Nevertheless, in general,
Nevertheless, general, judges may impose impose aa final
final resolution
resolution independent
of the consent of of the parties.
parties. Even
Even when
when the third man man must gain gain the con-con‑
sent of the parties to his
the parties resolution, as
his resolution, as for instance
instance the mediator must, must, it isis
possible for him
possible him to to propose a solution‐one in
a dichotomous solution-one in which party
party A
all and
wins all and B loses all. But for obvious reasons
loses all. reasons he is unlikely to do
he is so. When
do so.
specific consent of the parties
the specific parties isis not required,
required, suchsuch resolutions are more more
feasible. The go-between
feasible. go-between has little or no enforcement power.
has little power. The mediator
may do somewhat better by bringing bringing to hear bear general social sentiment in
resolution. We
favor of resolution. We often distinguish
distinguish the arbitrator from from the mediator on
the basis
the basis that the arbitrator's
arbitrator*s decisions are subsequently enforceable by court
action. Judges are furthest along
action. along the spectrum toward complete enforcement, enforcement,
having means
typically having means to tap the organized forces of coercion in the society
enforce their solution.
to enforce solution. Moreover,
Moreover, where the judge is is administering
administering aa detailed
body of law law whose building blocks are concepts of legal
building blocks obligation,
legal right and obligation,
resolutions are at least partially dictated by the rules
such resolutions
such rules of decision he he has
imposed
imposed on the parties.
parties.
Curiously enoughenough it is is preciser
precisely the need need to elicit the consent of the loser
to aa decisional
decisional process
process that has been larger
has been imposed on him
largely imposed him that may
lead decision stripping him
lead to aa decision him of everything.
everything. To the extent that he he believes
third person
that aa third person whomwhom he has not chosen is exercising
he has discretion in behalf
exercising discretion
his opponent,
of his opponent, he he may deny the legitimacy of the whole judicial system.
Mediate solutions that split”
Mediate difference between
split" the difference between the two parties parties in various
ways are are likely to expose judicial discretion discretion most clearly. Thus judges may
find it preferable
find preferable to issue issue dichotomous solutions, denying their discretion by
solutions, denying
arguing
arguing that under preexisting law one party was clearly right and the
under the preexisting
other clearly wrong.wrong. The losing losing party may be be unhappy with the resolution, resolution,
but so
but so long
long as as hehe accepts
accepts the legitimacy of the "law," “law," he he may not perceive
perceive
the judge as
the lºdge as acting
acting with his his opponent.
opponent.
substitution of law
The substitution and office
law and office for consent entails very major destabliz- destabliz‑
ing pressures
ing pressures on the triadic structure. For
structure. For it it was essentially his consent at
every preliminary stage stage that enabled the losing
losing disputant to continue see-
see‑
ing the triad
ing triad as triad rather than
as aa triad than as as two against one. If If the loser does not
Speciñcally consent in advance
specifically advance to the norm. norm, he he must be be convinced that the
rule imposed
legal rule
legal imposed on him him diddid not favor his his opponent.
opponent. Thus the yearning for
17
neutral principles of
neutral principles found among
of law found among contemporary lawyers. lawyers.l7 And if
And he
if he

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did
did not
not consent
consent to to the judge, he
the judge, he must
must bebe convinced
convinced that judicial office
that judicial office itself
itself
ensures that the judge is not an ally of his opponent. Thus the yeaming for
ensures that the judge is not an ally of his opponent. Thus the yearning for
18
aa professional
professional and and independent judiciary.ls
judiciary.
Yet
Yet it isis frequently difficult or impossible
impossible to convince
convinee the loser of of these
these
very things.
very things. First of all, many
all, many disputants are a position know suspect
are in a position to know or suspect
that the law to be be applied
applied in their cases
cases does favor their opponents. Most laws
in most
most societies favor some some classes of of persons
persons and disfavor others.
others. Second,
where the judge is is aa governmental
governmental or religious officer, officer, then aa third set set of
interests quite independent of those of the two two disputants is interjected.
is interjected.
One or bothboth prospective
prospective litigants
litigants may perceive
perceive that the interests
interests of of the
government or the church is contrary to his own.
his own. ItIt is for these reasons that
reasons
the judges and and their professional
professional defenders in most advancedadvanced societies spend spend
such
such aa large proportion of their dialectic and
large proportion and ritual
ritual talents promulgating
promulgating and and
defending
defending the prototype
prototype notednoted at the beginning
beginning of of this study.
study. Contemporary
courts are involved in aa permanent crisis because
are involved because they have
have moved
moved very far
along
along the routes
toutes of law and
and office from
from the basic consensual triad that pro-pro‑
vides their essential logic.
essential social logic.

Courts in the mediatory continuum

Courts continuum
Having
Having said said all
all these things, if if we
we could now n o w focus exclusively on judging
discussion
in any further discussion of courts, the path would be
path be fairly clear.
clear. However,
we turn to the work of those persons and
if we institutions to which we
and institutions we norm‑
norm-
ally award
award the titles judges and courts, we
and courts, shall see that in reality they are
we shall
simply at one end spectrum rather than constituting an
end of aa spectrum an absolutely
distinct entity. Courts are clearly the least consensual and
Courts are and the most coercive
of triadic conflict resolving conventional prototype
institutions. The conventional
resolving institutions. prototype of of
concentrated so
courts has concentrated heavily on the coercive aspects
so heavily of courts,
aspects of however,
courts, however,
that it hashas tended to isolate
isolate judging unduly from from other styles of conflict
resolution. It lt is because elements of mediation and
of mediation and remnants
remnants ofof consent are
integral to most
integral most court systems that the conventional prototype of courts is is
often misleading.
often misleading. Courts share with with their fellow triadic conflict resolvers
resolvers
along the
along continuum the need
the continuum need to elicit consent.
consent. Among other things this
means mediating is
means that mediating n o t to be
is not be seen
seen asasan antithesis to judging but rather
an antithesis
as a component in judging. Most
as judicial systems retain
Most judicial retain strong elements of of
mediation.
mediation.
ln chapter 4 we
In shall examine one of
we shall longest-lasting judicial systems
of the longest-lasting
history, that of imperial
in history, imperial China.
China. It lt so
so intimately intermingled mediation
intermingled mediation
imposed, dichotomous conflict resolution
with imposed,
with resolution that it has has often
often been mis‑
been mis-
takenly characterized asan
characterized as an entirely mediatory judicial system.
system. In the English
English
legal system
legal discussed in chapter 2, we
system discussed shall discover that, even
we shall even before
before the
Normans conquered
Normans England, the ideal
conquered England, Anglo-Saxon jurisprudenoe
ideal of Anglo‐Saxon jurisprudence was a a
agreed by the parties under
resolution mutually agreed
resolution under supervision and recorded
supervision of, and recorded
by, aa court. Dawson has
court. Dawson has pointed arbitration played
pointed out that arbitration played aa very large
large

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role in the development of

role sixteenth and seventeenth
English equity in the sixteenth
of English
eenturies and
centuries and in the judicial business of Council. In the Roman
of the Privy Council. Roman
formulary procedure
procedure described earlier,
earlier, it appears
appears to have been fairly com-
have been com‑
mon for the praetor to serve asor
mon as or suggest anan arbitrator rather than a a judge
to the contending parties.
to parties. Inln these instances
instances we we useuse the term arbitration
rather than mediation
rather than mediation because the third party is supposed to take account
is supposed
rights or claims of
legal rights
of the legal of the contending parties in framingframing aa solution
for their approval.
for approval.
lndeed, it would
Indeed, would not be move about the world's legal
be difficult to move legal systems
multiplying the examples of the intermingling
endlessly multiplying intermingling of mediation
mediation and and
judging. Communist legal legal systems might seem to have have aa special penchant for
"comradely mediation” between
“comradely mediation" between fellow members
members of the working class, class, since
communists define law as
define law as an
an instrument of oppression. Indeed,
of class oppression. lndeed, both
in the West and and in China,
China, we encounter comradely courts that seek to resolve resolve
family,
family, neighborhood,
neighborhood, and and work place disputes without formal formal judicial pro‑ pro-
ceedings. But we also discover that these bodies tend to mix mediation
we also mediation with
imposed solutions backed
imposed backed by by the coercive authority of the party and the
state. Moreover, comradely courts are almost invariably embedded in a
state. Moreover,
conventional court structure staffed by professionalprofessional judges applying
applying law,law, or
sometimes party policy that is treated as as an integral
integral part ofof law. Most com- com‑
munist states now operate their economies on aa system of
munist of supply contracts
entered into
entered into between
between industrial
industrial enterprises. Contracting parties engaged in
enterprises. Contracting
aa dispute are confronted by
are confronted by aa range
range of arbitration and and judicial proceed-
proceed‑
ings quite similar to those in noncommunist
ings quite noncommunist states. lndeed, more generally,
states. Indeed,
mediation and
mediation and arbitration
arbitration in the context of the opportunity to go go into
into court
if the parties
if parties cannot come to agreement is is aa typical pattern encountered in
both communist and
both and capitalist states.
Mediate solutions are
Mediate feasible when the disputed
are most feasible disputed matter is is divisible
or can be be converted
converted into divisible. At first glance it would seem
into something divisible.
to be injury or trespass that would
be injury would bebe least amenable to mediation
mediation and and most
subject to the rule of "an
rule of “an eye for anan eye.”
eye." The common law system has often
been
been taken
taken as as the model
model of of dichotomous resolution, since it is aa "strict" “strict”
law system seeking
law seeking to assign
assign legal
legal right
right to one of of the parties and legal
legal wrong
to thethe other.” insistence of
other. 19 Yet the insistence of the common law that the central and
usually sole remedyremedy is is money damages and that no no resolution
resolution is is possible
possible
unless one party can show he
unless he has
has been damaged in aa compensable way reveals
been damaged
dimension. The common law
another dimension. law consistently converts indivisible dis- dis‑
putes, that is,
putes, is, disputes over injury to person
person and and property and and disputes over
fulfillment or nonfulfillment
the fulfillment nonfulñllment of obligations into into disputes over sums of
money. Mediate solutions are
money. Mediate are always possible in disputes about money. Even
always possible Even
aa.Ílldge
judge whowho must declare that
must declare that one party is
one party is legally
legally right
right and the other
and the other legally
legally
wrong
Wrong need need notnot resort
resort to
to winner-take-all
winner‐take‐all solutions. Typically he
solutions. Typically will award
he will award
money damages that amount to more
money more than the loser wants to pay but less less
than the
than the winner claims he deserves. Moreover, where the Anglo-American
he deserves. Anglo‐American

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law
law has has developed
developed equity
equity as asa a means
means of of resolving
resolving conflicts through remedies
conflicts through remedies
other than money damages, that is, through equitable
other than money damages, that is, through equitable decrees ordering some‑ decrees ordering some-
one to do something, it invokes the doctrine of "balancing
one to do something, it invokes the doctrine of “balancing of equities.“ That of equities." That
doctrine requires
requires anan equity court
court to shape remedies so as
remedies so as n o tnot to impose costs
costs
on
on oneone of the parties
parties that far outweigh outweigh benefits
benefits to the other.
other. In short,short, below
the facade
facade of dichotomous solution solution presented
presented by by Anglo-American courts
lies
lies the potential
potential for mediation.
mediation.
potential is
That potential is frequently realized realized in the courtroom itself, itself, for instance
when judge or jury reduces reduces the amount of
of aa damage award because the
award
plaintiff,
plaintiff, while legally right,
right, was himself partly at fault.
fault. More fundamentally,
More fundamentally,
money damagesdamages are are mediatory
mediatory because because they allow the loser to substitute
aa money payment for the performance perfomance of some action action to which he is strongly
heis
averse
averse or for acceptance of some distasteful
for the acceptance distasteful retribution
retribution like like suffering the
loss
loss of of an arm
arm because
because he he hashas taken off someone else's. elseºs.
However,
However, in modern
modem Anglo-American
Anglo‐American law systems, systems, and for that matter in
Continental
Continental ones, ones, the area of mediation mediation often moves moves outside the courtrooms.
The bulk of conflict resolutionresolution through legal channels occurs by negotiation
through legal negotiation
between
between the partiesparties and attorneys under the compulsion of eventual
and their attorneys
court proceedings
prooeedings should
should negotiations
negotiations fail.
fail. ToTo dismiss the vast bulk of of con‑
con-
resolution by
flict resolution law in modern
by law modern societies as as somehow extra-judicial would
both direct the student of courts away from
both from the central phenomenonphenomenon and and
lead
lead to fundamental
fundamental distortions of of reality. announced judicial
reality. For previously announced
rules
rules and anticipation by
and anticipation by the disputants of benefits of eventu‑
of the costs and benefits eventu-
ally going trial are key
going to trial negotiations. They are
key parameters in such negotiations. are not free
bargaining
bargaining based
based solely on the wills and and immediate resources of the parties, parties,
bargaining under the shadow supervision of
legalized bargaining
but legalized of an
an available court? court.ºº0
negotiation is
Such negotiation
Such is not mediatory, because the bargain struck will
n o t purely mediatory,
depend in part on
depend on the "legal" parties, that is,
strength of the parties,
“legal” strength is, predictions of how
each would fare
each fare in court.
court. Yet such such negotiations
negotiations aim aim at, instanoes
at, and in most instances
achieve, sufñciently satisfactory to both
achieve, aa solution sufficiently both parties to avoid litigation.
avoid litigation.
negotiations may end
Failed negotiations
Failed end up in court,court, where their judicial resolution resolution sets
the parameters for further negotiations. negotiations. Thus the principalprincipal arena of modern
of modern
dispute settlement intimately intermixes
legalized dispute
legalized intermixes elements of mediation and
of mediation and
dichotomous solution,
dichotomous solution, consent and
and judicial imposition.2l
imposition. 21

. Conventional
Conventional American
American legal legal scholarship has has continued to draw a a sharp
line between
line mediation or negotiation
between mediation negotiation on the one hand hand andand judging defined defined
the prototype on the other.
by the
by other. Two American scholars have delivered
have recently delivered
major
m a j o r attacks on on that line? Eisenberg has
line.222 Eisenberg noted that,
has noted that, in both legal and
both legal and
anthropological literature,
anthropological literature, negotiation
negotiation typically has been characterized as
has been as
a matter
a matter of free bargaining
free bargaining determined determined entirely by the interests and
and power
of the parties.
parties. In contradistinction
contradistinction to negotiation, litigation is
negotiation, litigation is usually seen
as highly constrained
as constrained by legal mies and
legal rules principles. So
and principles. So far in this chapter,
chapter, we we
have been
have concentrating on the elements of
been concentrating of mediate
mediate settlement retained retained by
judges engaged litigation. Eisenberg
engaged in litigation. Eisenberg is is interested
interested in the other side of of the

14
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COURTS

coin. He
coin. He argues that, that, particularly when negotiation
negotiation is is carried on on with the
prospect that litigation
litigation may follow, negotiators invoke
follow, negotiators invoke aa great many rules rules
and principles derived
and principles derived from
from the legal
legal system
system and and the more general set of
more general of
social norms. Eisenberg
social norms. Eisenberg finds finds major "continuities between
“contínuities between the processes
dispute‐negotiation and
of dispute-negotiation adjudication.” While he
and adjudication." he deals largely with the
diadic structure of of negotiation between two parties,
negotiation between much of what he
parties, much he says
would
would also also apply to the triadic structure of mediation. importantly,
mediation. Most importantly,
his work shows that in actual,
his working legal
actual, working legal systems,
systems, mediate
mediate solutions
and legal
and rules are so
legal rules so intimately combined that the study of courts cannot
proceed
proceed realistically without attention attention to both.
When Eisenberg
When Eisenberg comes to note note the differences between negotiation and
between negotiation
litigation, he
litigation, places particular emphasis on
he places on the "binary"
“binary” aspects of litigation.
litigation.
In part he he is referring to the aspect of dichotomous,
is referring winner‐take‐all deci‑
dichotomous, winner-take-all deci-
sion about legal
sion legal right and and wrong
wrong we we have noted. He also points to
have already noted.
another aspect of dichotomous decision that we we have
have notnot examined so so
far. Later in this chapter we
far. Later we shall note
note the important role role of courts as as fact
ñnders. Even
finders. Even where facts facts cannot be be established
established with certainty, Anglo-
certainty, Anglo‑
American courts typically make
American definitive findings
make definitive findings of fact and and treat them
as certain
as certain even though though they are are established only by the preponderancepreponderance
23
of evidence.
of evidence.23 artificial dichotomy between
This artificial between the legally true version of of
the facts and
the facts and the legally false false one is, course, closely related
is, of course, related to the other
dichotomy between between legal wrong. For in order to assert that one
and wrong.
legal right and
party is is certainly legally right right and
and the other wrong, wrong. the judge must pretend pretend
that he knows with
he knows with certainty factual situation was.
oertainty what the factual
Later
Later in this book we see that the desire for factual
shall see
we shall factual certainty marks marks
legal systems. In
most legal ln chapter 5 it will will bebe noted
noted that the standards of of
proof were so so high Islamic courts that aa second court system had
high in Islamic had to
be established
be established to handle handle the bulk of cases in which those standards could
not be
not be met.
met. In ln chapter 3, however, we
3, however, shall see that French
we shall French judges are far
willing than
more willing
more English and
than English and American judges to admit formally that they
cannot be be sure what the true facts of of the case are. Instead of
are. Instead adopting the
of adopting
“binary” tactic of Anglo-American judges, they often openly admit that
"binary"
facts remain
the facts unproved. Then
remain unproved. resort to an
Then they resort an elaborate set of rules of
rules of
presumption
Presumption that determine determine which party is is to win the case case when the facts
uncertain. For
are uncertain.
are instance we
For instance we shall
shall see that when aa vehicle is involved in a
is involved a
damage situation, and
damage situation, and it cannot be beestablished
established with certainty what happened, happened,
French law
French presumes that the operator of
law presumes of the vehicle is is responsible
responsible for the
damage done.
damage done.
Coons has
Coons attacked the binary fetish
has attacked fetish of American courts.
courts. He proposes that
He proposes
in certain ínstanoes the judge admits
certain instances admits that the facts are are indeterminate and and
then makes
then makes decisions that give 50‐50 split to the parties
give aa 50-50 instead of
parties instead finding
offinding
entirely forfor one or the other. Because both
other. Because both parties supposed to be
parties are supposed equal
be equal
before the
before law, they should
the law, should bebe treated equally by the judge in situations in
which the crucial facts
which would establish
facts that would establish who was legally right and who

15
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wrong cannot be
wrong cannot established with
be established with & a reasonable
reasonable degree degree of of certainty.
certainty. Coons
Coons
offers the example of A, B, and C, who are hunting together. B
offers the example of A, B, and C, who are hunting together. B and
and C C fire
ñre
at
at the
the same
same time.
time. A A loses
loses an
an eye
eye to
to aa stray piece of
stray piece bird shot.
of bird shot. Itlt cannot
cannot be be
determined with
determined any degree
with any of certainty
degree of certainty whether
whether the the shot
shot came
came fromfrom the the gun
gun
of
of B B or C. Should
or C. Should A A get
get no
no compensation because because he he cannot
cannot prove
prove whether
it was
was B or C who injured him.
injured him. Would it not be
not be moremore just if
if he were 24
he awarded
awarded
a sum
sum ofof damages and Band
and B and eachC each ordered to pay half of
of them.24 Coons
them.
relates
relates hishis proposal
proposal to the mediation
mediation style of the Far East which we we shall
shall
examine in chapter 4. 4.
The work of Eisenberg
Eisenberg andand Coons shows that the prototype prototype of of courts and,
particularly,
particularly, the sharp disjunction
disjunction between
between litigation
litigation and and other modes modes of
dispute settlement are being being brought into into question.
question. They both both describe and and
prescribe mixtures of imposed office
mixtures imposed office and law and law with more
more mediational, con-
con‑
sensual elements.
elements. Inln doing
doing soso they mirror
mirror a a great dealdeal of of the reality of of actual
actual
court systems that has has been
been somewhat obscured by viewing courts through
the conventional
conventional prototype.
prototype.
Judicial striving
Judicial striving for consent can be found everywhere in court procedures
be found procedures
and proceedings.
and proceedings. In criminal law, bargaining is
law, plea bargaining is the mediation
mediation of of the
interests of prosecution
interests prosecution and defendant. Ethnographic materials,
defendant. Ethnographic materials, including
including
those on en American trial courts, give us us numerous
numerous examples of of judges propos-
propos‑
ing one solution after another and,
ing threat, persuasion, and
and, by threat, application
and the application
of the social
of social pressure
pressure brought by the audience, moving both
audience, moving both parties
parties to at
25
profess satisfaction
least profess with one of
satisfaction with of them.
them.25 Indeed,
lndeed, most of conventional
of the conventional
attachment to adversary proceedings
proceedings is is based
based not on the desire to heighten heighten
level conñict
the level of conflict in judicial proceedings,
proceedings, but quite the opposite, on the
opposite,
need to have
need both parties
have both parties present before
before the judge if if he
he isis to have
have any chance
of creating a& resolution
resolution to which both parties will consent.
which both consent. EveryEvery effort is is
made to preserve
made preserve the appearance that the parties voluntarily come before before
court. A striking
the court. European and
striking feature of European and Anglo-American court systems
in general is ¡5 the extent to which
which the complaining
complaining party in civil suits must
burden of
shoulder the burden of getting the other side into relativer little
into court with relatively little
assistance from
assistance from the court itself.
Perhaps more
Perhaps fundamental than
more fundamental than these remnants
remnants of of mutual
mutual consent to trial
universal phenomenon
is the almost universal
is phenomenon that at least one of of the disputants must
choose to go go to court.
court. Only in isolated instances, such
isolated instances, such as as the authority of of
intervene in civil disputes/
procurator to intervene
the Soviet procurator disputes,266 are are judicial services
imposed on
imposed neither one of
on disputants neither of whom wants them them.. In this sense while
parties no
the parties no longer choose their particular law and and their particular judge,
at least one of of them mustmust choose the law and and the courts.
courts.
In a proportion of
a substantial proportion of civil
civil proceedings courts are are used
used to settle
contractual disputes in which the parties have have in fact created detailed
created the detailed
mies of
rules of decision for themselves when they initially wrote the contract. contract. HereHere
again
again the partial phenomenon
partial phenomenon suggests the more general
more general one. one. It is not only
not
…contract disputes after all
in all that the parties consultation with the judge
parties in consultation

16
16
 THE
T H E PROTOTYPE
P R O T O T Y P E OF
O F COURTS
COURTS

make the law.

make law. More
More often than not n o t what we we would labellabel adversary proceed‑
proceed-
ings are rituals
ings rituals in which three law speakers, speakers, the judge and and the two parties
parties
or their attorneys,
attorneys, speak on until arriving
on until arriving at some verbal formulation of
the law synthesized
the law synthesized from from their various versions.versions. This can be be seen at the
level of aa debate among
simple level litigants about what the customs of
among tribal litigants of
27
people truly are
the people are27 and at the elaborate level
and level of appellate opinions con‑ con-
28
structed out of
structed bits and
of bits and pieces
pieces of of the opposing briefs. briefs.23 Most courts makemake
some law as as they go along. and
go along, when they do so
and when so it is assist‑
is usually with the assist-
parties.
ance of the parties.
Along
Along the dimension of
the dimension of enforcement too we we find
find the judge less less far from
from
the mediator than
the than one might expect. expect. In most societies courts have had had
only the most
most rudimentary enforcement mechanisms, mechanisms, often only a melange
of voluntary compliance and self-help. Courts typically do not
and self-help. not monitor
compliance, and
compliance, reintervene to exact compliance only at the request
and they reintervene
reintervention often takes the form
parties. The reintervention
of one of the parties. form of aa simple
repetítion of
repetition previous order.
of the previous successful suitor even in a modern
order. The successful modern
industrial society frequently finds
industrial finds that the decree is is only the first in a long
a long
expensive, and
painful, expensive,
series of painful, and often inconclusive
inconclusive steps aimed aimed at getting his
remedy. Courts,
remedy. Courts, we we are repeatedly and rightly told,
are repeatedly told, have
have neither the purse
sword. Perhaps
nor the sword. important, they rarely have
Perhaps more important, have the administrative
resources to follow up
resources up on their resolutions.
resolutions. Most court systems seem to
operate on the assumptions that both both parties sufñciently to comply
parties consent sufficiently
voluntarin
voluntarily at at least as long
as long as as some vague threat of further judicial action
is maintained.
is maintained.
hardly surprising
is hardly
It is surprising that most judges spend spend aa good deal of of time as as
mediators. It
mediators. lt might once have have been argued that the emphasis on mediation
been argued mediation
oriental courts was wholly or largely a
in oriental of Confucianism or the like,
a result of like,
oriental judge as
so that the oriental
so mediator was aa peculiar and
as mediator and culturally deter-
deter‑
mined phenomenon. Structural
mined Structural rather than cultural factors, factors, however,
however, seem to
be at the root
be root of of the matter. Even where law and
matter. Even and courts are accorded aa high high
level oflegitimacy,
level of legitimacy, true adversary proceedings culminating in aa dichotomous
verdict are an optimal
are an mode of conflict resolution
optimal mode resolution only for parties who in the
future need
future need have relations or only arm's length
have no relations length relations another.
relations with one another.
For those who must
For those maintain close economic or social
must maintain social relations, proceed‑
relations, proceed-
ings according
ings according to the the prototype of of courts are are unlikely to be be satisfactory.
satisfactory.
Given substitution of law and
Given the substitution and office consent, the loser will rarely feel
office for consent, feel
sufñciently satisfied
sufficiently with the most extreme form
satisñed with form of the judicial process to fully
relations with
reenter those relations winner. And the less
with the winner. less legitimacy is is accorded
the regime
the regime of which the court is
of which is aa part, less capable it will be
part, the less restoring
be at restoring
3
a working relationship.
relationship.
There are are some
some societies where even even those in close and and continuing rela‑rela-
tionships are willing to accept dichotomous solutions with good
are willing good grace. We
grace. We
generally find,
find, however,
however, highly mediatory styles of of judging in agrarian villages,
agranan vrllages,
with aa strong
with strong tendency on the part part ofof the villagers to avoidavoid the more
more courthke
courtlike

l7
17
 OMPARATIVE AND
COMPARATIVE A N D INTERNATIONAL
I N T E R N AT I O N A L ISSUES
ISSUES

courts
courts of of the central regime.
the central regime. Frequently there is
Frequently there is an
an adoption
adoption of of mediatory
mediatory
styles even by the courts of the regime. The classic Chinese29situation may
styles even by the courts of the regime. The classic Chinese situation may
represent
represent an an extreme
extreme upward upward percolation
percolation of of mediatory
mediatory styles.
styles.29 The
The medieval
medieval
English
English arrangement
arrangement may may be be more
more typical. There the
typical. There the large
large landowners,
landowners,
who
who were were not only at
not only at arm's
arm's length
length but
but often
often at
at sword's
sword*s point,
point, resorted
resorted to to
the
the king's common law
king's common courts for
law courts for strict
strict law judgments of
law judgments of disputes with one
disputes with one
another. However,
another. However, when when conflicts arose between
conñicts arose between lordlord and tenant or
and tenant or between
between
tenants
tenants in in the context of communal or partially communal
context of communal or partially communal agricultural agricultural
production, they were generally resolved
production, resolved either in the lord'slord's own or the com- com‑
munal (hundreds)
munal (hundreds) courts.courts. There aa bailiff or group of of elders worked in more more
mediatory style.30 style. 30 On the other hand, hand, in seventeenth-century England England and and
colonial and
colonial and nineteenth-century America, America, where there were large large numbers
numbers
of individually owned owned and and operated agricultural units units producing
producing for aa cash cash
31
market,
market, there seemed to be
seemed to be specially high levels litigation.3I
high levels of litigation.
The tendency toward mediation mediation even by formally structured structured courts is is not
limited
limited to communal agricultural agricultural settings.
settings. Inln modern
modern Japan, for instance, instance.
which imported
imported a a highly adversary and and dichotomous judicial style style along
along with
with
the German
German Civil mediation continued as
Civil Code, mediation as the basic judicial mode mode
in the villages.
in villages. Adversary litigation litigation became more urbanization
more prevalent with urbanization
and
and most prevalent in auto
auto accident cases in which the parties
parties hadhad no con-con‑
tinuity of relationships.
relationships. Yet the major Japanese industrial
industrial cartels engage in
32
relatively littlelittle litigation subcontractors.32
litigation with one another or their subcontractors.
ln Western
In Western societies as aswell, firms maintain continuous business
firms that must maintain business
relationships
relationships are nnot o t prone
prone to litigation. Continuous business relation is
business relation is usu-
usu‑
ally expressed legally by contracts. contracts. It It is precisely in contract relations that
formal instruments of mediation
formal instruments mediation and and arbitration
arbitration have exhibited tremendous
have exhibited
growth in modern modem industrial
industrial states. PerhapsPerhaps moremore important,
important, as noted
we noted
as we
earlier, negotiation
negotiation under under the umbrella of and and within the restraints imposed
restraints imposed
by potential
potential adversary proceedingsproceedings with with dichotomous solutions has become
has become
the principal
principal mode mode of legalized
legalized conflict resolution
resolution in industrialized societies.
industrialized societies.
out‐of-court settlement has
And out-of-court become aa major mode
has become mode of resolution
resolution of
even those conflicts
conflicts that reach reach the stage of law suits. In criminal criminal law,law, too,
too,
where the prosecutor has has come to peroeive
perceive his relation with criminals as
his relation as a
continuous one, plea bargaining bargaining has become the dominant mode
has become mode of resolu‑
resolu-
33
t i o n in at least one highly urbanized,
tion urbanized, industrialized
industrialized society, the United United States.
States.33
lndeed, many observers trained to the prototype
Indeed, prototype of of courts are shockedshocked by
the informal, familia],, conciliatory, and
informal, familial and mediatory style style of most American
criminal proceedings.
proceedings.
Another clear example of the relation relation of of mutual
mutual interdependency to the
choice of mediatory rather proeeedings is,
rather than strict judicial proceedings is, of
of course,
proliferation of mediation
the endless proliferation mediation and arbitration arrangements through‑
and arbitration through-
Westem world for the resolution
out the Western resolution of labor‐management
labor-management conflicts. conñicts.
ln short, if
In if one were to review all all societies, or even even to confine
confine oneself
to modem industrial and
modern industrial and commercial commercial states where one would most expect to
most

18
18
 P R O T O T Y P E OF
T H E PROTOTYPE
THE O F COURTS
COURTS

find
find the prototypic court, court, one discovers that legal legal processes are n not
o t neces-
neces‑
sarily or entirely court processes,processes, if we confine
if we confine our definition of of court to
prototype. For
the prototype. For wewe frequently find intermediate
intermediate rather than dichotomous
resolutions. We We find
find them aimed at the mutual mutual satisfaction of of the parties and
and
representatives and
conducted by their chosen representatives
conducted often by aa chosen third. We
and often We
find them completed through
find through procedures emphasizing emphasizing mutual
mutual conciliation
rather than adversary confrontation.
rather confrontation.
To put the matter
To matter another way, way, judges tend to share the same means of of
resolution with
conflict resolution with other triadic figures,
figures, and
and most of those we we would label
label
judges engage in aa great deal of mediation. mediation. Moreover,
Moreover, the substitution of law
and
and office
ofñce for consent has has not been total even for those judges who act most
n o t been
independently of the wills of the parties in acquiring and resolving resolving conflicts.
As aa result,
As result, even from perspective of
from the perspective of conflict resolution,
resolution, where the proto‑
proto-
type of court would seem seem to be be most clear,
clear, wewe encounter grave difficulties.
difficulties.
If
If we
we accept the prototype,
prototype, we we must admit that most of of those wewe call judges
do
do aa lot of non judging. And
nonjudging. And we we must confine
confine the area of judicial studies to
thin slice of the real
aa very thin real world and and one so so arbitrarily sliced that it would
appear senseless to most of the participants. participants.
discussion we
In this discussion we have focused on
have focused on the commonalities betweenbetween mediators
and judges, particularly in the mixing
and mixing of consent and coercion. In chapter 4
and coercion.
another point about the close relation relation between
between mediation
mediation and and judging will
be illustrated
be illustrated at at length.
length. It is is no
no coincidence that in most developed developed legal
legal
systems, we
systems, mediation and
we encounter mediation litigation side by
and litigation by side. Neither can
function well without the other.
function other. Litigation expensive. The
Litigation facilities are very expensive.
opportunity
ºpportunity to settle a a large
large share of disputes by by mediation reduces the costs
mediation reduces
proportions the political
of courts to proportions political regime
regime is is willing to bear.
bear. Conversely,
without the threat of litigation
litigation if mediation fails,
if mediation mediation would
fails, parties to mediation
be far
be far less
less willing to accept mediate solutions. Most mediation
mediate solutions. mediation is is far less
consensual than
consensual than it looks. Behind it lies
looks. Behind lies the threat of of litigation.
litigation.
Thus even if we
even if we remain
remain strictly withinwithin the area of conflict resolution, the
conventional prototype
conventional prototype of of courts
courts must be be substantially modified
modified by an an
appreciation of
appreciation of the important role role of mediation within systems that proclaim
of mediation proclaim
themselves judicial. A substantial share of the legal conñicts in most societies
legal conflicts
is resolved not by dichotomous but
is resolved but mediate
mediate decision, either renderedrendered by a a
itself or under
court itself under the shadow of potential court proceedings.
of potential proceedings. Much
Much of of what
courts do is is not adversarial
adversarial in the sense of encouraging or requiring
of encouraging requin'ng dis-
dis‑
putations between the two conflicting
putations between conñicting parties. It is is enough both parties
enough that both
present their views to one another and third or with the option of
and a third going to
of going
third. The style of the interchange
aa third. interchange may be becooperative,
cooperative, benevolent, or even
familial rather
familial ritualized trial by
rather than one of ritualized by battle. Moreover, where courts
battle. Moreover,
preserve aa more
preserve more or lessless mediatory style, they may subtly mix preexisting preexisting legal
rules with rules
rules rules that emerge from from the interaction
interaction of the parties. To the extent
that there are preexisting rules,
are preexisting rules, they may may be be ones created by by the parties them‑
them-
selves in a contract.
contract. After the final final settlement, less depend on those
less may depend

l9
19
 COMPARATIVE
COMPARATIVE AND
A N D INTERNATIONAL
INTERNATIONAL ISSUES
ISSUES

rules
rules than
than on on aa newly emerging agreement
newly emerging agreement or or understanding
understanding or or set
set of
of subrules
subrules
that is suggested or elicited in the very process of settling
that is suggested or elicited in the very process of settling the dispute. the dispute.
Only
Only the the prototypic
prototypic element
element of of judicial
judicial independence
independence remains remains relatively
relatively
pure in the context of conflict resolution. For neither of the conflicting
pure in the context of conflict resolution. For neither of the conflicting parties
is
is likely
likely to accept anything
to accept anything otherother than
than pure mediation from
pure mediation from aa third
third whowho ISis
tied
tied to
to his
his opponent.
opponent. That That is,
is, so
so long
long as
as the
the third
third exercises
exercises any any independent
independent
influence
influence overover thethe outcome,
outcome, he he must
must demonstrate
demonstrate his independence of
his independence of the
the
party who achieves the more favorable outcome
party who achieves the more favorable outcome if he is to achieve the con-
if he is to achieve the con‑
sent of
sent of' the
the less
less favored
favored.. ItIt is when we
is when we turn
turn from
from conflict
conflict resolution
resolution to to social
social
control
control that the independence
independence element of
of the prototype
prototype comes into
into serious
question.
question.
The basic tension to be be found
found in courts as as conflict resolvers
resolvers lies lies in their
need
need to persuade
persuade the parties
parties that judges and laws have not
laws they have not chosen
chosen none-
none‑
theless constitute a a genuine, neutral
genuine, neutral third. Most of the ties courts maintain
maintain
to the mediator,
mediator, and many of the hiatuses
and many hiatuses of coercive power that we we observe
in the procedures
procedures of courts for acquiring acquiring the parties andand imposing
imposing and and enforc-
enforc‑
ing
ing verdicts,
verdicts, stemstem from
from this tension.
tension.

Social
Social control
The conflict resolution
resolution role
role of courts has
has not been been given pride of
given pride place here
of place here
because
because is it is the sole, "natural,"
sole, “natural,” or "correct"
“correct” role courts. We began with
role of courts. We began
resolution aspect of the work of
the conflict resolution of courts for three reasons. reasons. First,
First,
everyone seems to agree agree that conflict resolution
resolution is is aa basic task of courts. When
we
we move, as as we are about to,
we are to, from
from conflict resolution
resolution to social control and
social control and
lawmaking, we we leave
leave that consensus.
consensus. Many students of courts would look at
social control as
social asa much more
a much more neutral function than that presented
neutral function presented here and and
some would deny that courts do or should should engage
engage in lawmaking. Second.
lawmaking. Second,
itIt is
is in the sphere of conflict resolution
resolution that the most favorable favorable case can can be
be
made
made for the conventional, four‐element prototype of
conventional, four-element presented at the
of courts presented
beginning of this chapter.
beginning chapter. We havehave now seen that, that, even
even in that context,
the prototype is is misleading
misleading particularly in its its third and and fourth elements. Next
fourth elements.
we shall see that the first two elements of
we of the prototype
prototype must be be seriously
questioned in the context of social
questioned social control
control and and lawmaking.
lawmaking. Third, excessive
emphasis on on the social control and lawmaking aspects
and lawmaking aspects of the work of courts
rs likely to result in overstressing the role
is role of coercion and
of coercion underplaying the
and underplaying
role of consent in the judicial sphere.
role
More important,
More important, such such emphasis may may lead lead to an artificial compart‑
an artificial compart-
mentahzation
mentalization of judicial role
role that in t u
turn m may lead
lead to a misunderstanding
misunderstanding
of crucial problems of judicial legitimacy.
crucial problems legitimacy. If people or the regime
If the people regime approve
substance of the social
the substance control and/or lawmaking
social control lawmaking that courts do, the
perceived legitimacy of the
perceived the courts may increase. increase quite
lndeed itit may increase
increase. Indeed
mdependently of
independently of any legitmacy the courts acquire acquire in the realm realm of of conflict
resolution. Yet the basic social
resolution. social logic
logic of courts as asconflict resolvers
resolvers isis so
so strong,

20
20
 THE P
THE ROTOTYPE O
PROTOTYPE OFF C OURTS
COURTS

particularly where links links to consent can be be maintained

maintained even as and oñice
as law and office
are substituted for direct consent,
are substituted consent, that courts would be be foolish not to enlist
foolish not
resolution social logic in behalf of their social control and law-
this conflict resolution law‑
making activities. Conversely,
making activities. Conversely, their social control and lawmaking lawmaking activities
may either emphasize or deemphasize the potential potential conflict betweenbetween direct
consent and and its partial replacement by law and
its partial and office. So social control and
office. So and
lawmaking activities may weaken or strengthen the social
lawmaking social logic of courts in
the resolution area.
the conflict resolution resolution, social control,
confiict resolution,
area. The conflict control, and law-law‑
making functions
making functions of courts must be be seen as mutually interdependent.
seen as interdependent. If If we
we
wish
wish to view conflict resolution as
resolution as first among equals, is
equals, it is because the social
logic or the triad
logic triad may be be aa more
more constant source of of legitimacy than popular
support of the substantive policies embodied embodied in the courts' social social control
and lawmaking
and lawmaking activities.
While an an analytical
analytical distinction can be be drawn between the confiict
drawn between resolution
conflict resolution
social control
and social
and control activities of courts, in practice practice they are inevitany
are almost inevitably
intertwined. Particularly
intertwined. go-betweens and mediators
dealing with go‐betweens
Particularly in dealing mediators or with
judges chosen by the parties and
the parties and employing
employing aa rule rule formulated by the parties, parties,
one may encounter aa resolution
one resolution which appears to be
which appears be based
based solely on on the
interests of the parties,
interests unconstrained by overreaching
parties, unconstrained overreaching social norms, norms, customs,
customs,
laws. But even
or laws. when mutual
even when mutual consent of the parties parties is
is the dominating con- con‑
cern, the
cern, the two parties will usually find
parties will find themselves mutually consenting consenting to the
proposition that their conflict
proposition conñict should be governed by some general norm
be governed norm ofof
the society to which which they belong.
belong. While our two early Romans Romans may have have
occasionally invented invented aa wholly new legal legal rule themselves, most of
rule for themselves, of their
energies were no
energies directed at achieving
no doubt directed achieving an an agreed
agreed verbal formulation
Roman tribal
of aa Roman
of tribal usage
usage or custom.
custom. It It was to gain assistance in this task that
they later turned to a praetor. praetor.
Thus even imposition oflaw
even absent the imposition of law and resolution of disputes
office, the resolution
and office,
through reference
through reference to aa third is is likely entail the enforcement of
likely to entail of broader
norrns on the parties
norms parties either directly or as as bounding
bounding constraints. Only the
go-between
go‐between shuttlingshuttling between
between parties embedded
embedded in two quite different societies
is likely to be
is acting without exerting
be acting exerting any social control over the parties. parties.
It isis of course in the substitution of office and
office and law for consent that the
social control
social control aspects
aspects of courts become become most evident and and most clearly
create tensions with conflict resolution.
create resolution. When the ttwo w o parties
parties must go go to aa
third who is
third is an
an officer
offioer, it isis as
as evident to them as as to the observer that they
are
are no longer going to' a
no longer disinterested third. Instead
a disinterested introducing aa
lnstead they are introducing
third interest: that of
third interest: of the government, the church, the landowner, or whoever
else appoints official. To be
appoints the official. even the Papuans
be sure, even Papuans who mutuallymutually choose
“big man"
a& "big man” to settle their disputes do not expect him him to be be neutral in the
sense of having having no interests
interests of his lndeed the bigger he
own. Indeed
his own. he is, the broader
is likely to be
is be the web of his his interlocking social and
interlocking social and economic interests
interests among
the various genetic,
the genetic, economic, and social units
and social units to which the disputants belong.
But the requirement of mutual consent allows
of mutual allows the Papuans,
Papuans, like like modem
modern

21
21
 COMPARATIVE
COMPARATIVE AND
A N D INTERNATIONAL
INTERNATIONAL ISSUES
ISSUES

corporations
corporations in in search
search of an arbitrator,
of an arbitrator, to to settle
settle onon aa third
third whowho willwill not see
n o t see
his
his interests,
interests, whatever
whatever theythey may
may be,be, as parallel to
as parallel those of
to those of one
one butbut n not
o t the
the
other of the parties.parties.
When
When litigants
litigants dodo not
not freely choose their
freely choose judges, aa number
their judges, number of of alternatives
alternatives
arise. First, when both parties perceive the interests of the regime to
arise. First, when both parties perceive the interests of the regime to bebe hostile
hostile
to
to their own,
own, the parties will not go
will not go to to the official court. Indeed, considering
court. lndeed, considering
the whole of of human experience, this avoidance
human experience, avoidance of of courts
courts because
because they repres- repres‑
ent the interests of others or outsiders is
ent is more
more the norm norm than the exception.exception.
Second,
Second, when both both parties perceive
perceive the interests
interests of of the regime
regime to be be com-
com‑
plementary or irrelevant to their own, they may go to
go court.court. Thus the bailiff
of anan exploitive, foreign,
foreign, and and hated
hated feudal
feudal lordlord may be be the perfect judge for
two
two serfs in conflict over the rightful
rightful possession of a cow precisely because
possession of a cow because the
lord
lord doesn't care which of of them milks
milks it so so long
long as as hehe gets half the milk. milk.
Third, when one of the the parties
parties perceives
perceives the interests represented by the
interests represented
judge as as hostile
hostile to his own and
his own and favorable to his his opponent, litigation
litigation may
occur if if the other party or the court has has sufficient
sufñcient coercive resources resources to bring bring
the reluctant party in, in, but the basic social logic of
of the court will disappear.
Should the self-perceived underdog actually lose,
self-perceived underdog lose, he he will see the situation
as
as two against one and and the the role
role of the court nnot as conflict resolver but as
o t asconflict as
coercer.
coercer.
This phenomenon
phenomenon is, is, of course, clearest in criminal law,
of course, law, where coercion
34
against one one ofof the parties
parties is at aa maximum.
maximum.34 operative, however.
It is equally operative,
1t however,
noncriminal matters
in many noncriminal matters where the law clearly favors one class of parties
over another.
another. In most legal legal systems once aa legal legal debt has has beenbeen voluntarily
mcurred, the law
incurred, law greatly favors the creditor over the debtor who cannot or
will notn o t repay. The debtor correctly sees judges hearing hearing debt litigation
litigation as as
essentially engagedengaged in enforcement of of the law through the hamessing harnessing of of
public authority to the efforts of the creditor to collect. collect. Thus in most most debt
actions the debtor simply does not appear in court for the litigation
actions litigation and and loses
loses
by default. 35 He
by default.35 He correctly sees the judge as precommitted to his
as precommitted opponent'ss
his opponent'
side. When a
side. disfavored litigants
a class of legally disfavored litigants has political strength.
has the political strength,
it may attempt to prevent the courts from acting acting at all. ln America indebted
all. In indebted
farmets have
farmers have from
from time to time gotten “mortgage moratorium”
gotten "mortgage moratorium" laws through
state legislature. Such Such statutes prevent judges from from making mortgage fore-
making mortgage fore‑
orders for aa certain
closure orders period
certain period time.of time. American labor unions belonged
unions belonged
to the winning New political coalition in 1932.
Deal political
New Deal 1932. They quickly used used their
political power, first
new political
new federal judges of the power to enjoin
first to strip federal enjoin strikes
and later to set up
and up a new body of law favorable to labor and
a new and aa new new court,
NLRB, to enforce it.
the NLRB, it. They perceived
perceived the old law and and itsits judicial enforcers
as favorable to management.
as favorable management.
It is
is to counteract these perceptionsperceptions of of judges as as part of of aa ttwo
w o against
rather than
one rather than a genuiner
genuinely triadic structure that the prototype
prototype stresses the
“mdependence” of
"independence" of the judge. More More of of the resources
resources of of legal
legal scholarship and and
argumentatton are
argumentation building up the ideology of
are spent on building independence
of judicial independence

22
22
 T H E PROTOTYPE
THE PROTOTYPE O
OFF COURTS
COURTS

than on any other part of the prototype precisely because because the court's basic
social logic as
social logic conñict resolvers
as triadic conflict resolvers tests element.
rests on this element.
ln the most
In most basic and and usually the least important sense, sense, independence
would meanmean that the judge had had not been bribed or was nnot
been bribed o t in some other way
aa dependent of of one of parties. But when we
of the parties. we ensure this kindkind of independ‑
of independ-
ence creating the office
ence by creating of judge within some govemmental
office of governmental structure,
in aa far
far more
more important sense he he is
is not independent,
independent, for he he is aa dependent
of those for whom he he holds office. Thus explicators of the prototype have
holds office. have
come to definedefine independence
independence not so so much
much as as independence from from the con‑ con-
parties as
tending parties
tending as independence
independence from from those to whom the judge owes his
office. They stress the institutional
office. institutional separation of courts from from the remainder of
system.”
political system.
the political 36
To independence in this sense the touchstone
make independence
To make
“courtness” is
of "courtness" is to measure
measure fromfrom the most deviant case. Looking at all
case. Looking all
known societies,
known societies, wewe find number of
find a number locations within the political
of typical locations political
structure for judging. One is is the whole body of tribe, the folkmoot,
of the tribe, folkmoot, in
which,
which, far from having
from having separate judges, the entire polity does the judging.37
judgingY
ln tribal societies organized
In organized under chiefs, the chiefs judge with or
under strong chiefs,
without the assistance of of the elders and and the body of tribesmen. 38 In
of tribesmen.38 ln village
39
societies the elders do much much ofof their own judging.39
judging. In ln feudal
feudal societies the feudal
feudal
magnates
magnates do much of the judging. In empires almost invariably
do much invariany the admin‑ admin-
istrator of
istrator of the geographic unit is is the judge in those matters
matters not delegated to
n o t delegated
retained by the conquered
or retained peoples. In short,
conquered peoples. universal pattern
short, the universal pattern is that
judging runs runs asas anan integral
integral part of of the mainstream
mainstream of of political
political authority
rather than as
rather than as aa separate entity.
entity. Inln those societies in which sovereignty can
located, the
be located,
be the sovereign judges. In political authority is
ln those in which political is not
concentrated, those who hold
clearly concentrated, hold the dispersed authority judge.

Judging and administration

Judging and administration
The congruence
congruence of of administering
administering and and judging must be be specially noted.
Indeed, the
Indeed, the observer who did did not so firme believe
so firmly believe in the independence
independence
of judging
ºfledging might take judging for a
a special facet of
of administering. Both
administering. the
Both the
judge and
and administrator apply general rules
general rules to particular situations on
on aa
case-by-case
case‐by-case basis.
basis. Both
Both tend heavin on precedent,
tend to rely heavily precedent. fixed
fixed decisional
decisional
procedures,
procedures, written records,
records, and legalized defense of
and legalized of their decisions. Both
Both
lawmakers engaged
are supplementary lawmakers
are ñlling in the details of
engaged in filling of more gen‑
gen-
rules. Both
eral rules.
eral Both are social controllers for more
are front-line social goveming
more distant governing
authorities. And
authorities. And in aa startling number
number of instances both both are the same person,
and aa person
and person who draws little no distinction between
little or no between administering and and
judging.
The most striking example is is the
the imperial
imperial administrator.
administrator. The all-purpose
all‐purpose
geographic officer
geºgraphic ofñcer is is the mainstay of empire,
empire, whether he
he be British district
be British
officer Chinese mandarín
Officer or the Chinese described in chapter 4.
mandarin described Such ofñcers
4. Such officers are there
to keep the peace and collect the taxes-not unrelated
tº kººlº the peace and collect the taxes‐not unrelated functions. And functions. And for
for

23
23
 COMPARATIVE
COMPARATIVE AND
A N D INTERNATIONAL
INTERNATIONAL ISSUES
ISSUES

better or
better or worse,
worse, in in practice
practice the imperial prefects
the imperial prefects are are also
also thethe imperial j.udges.
imperial judges.
While
While in very wealthy empires, and at the higher levels of geographic sub-
in very wealthy empires, and at the higher levels of geographic sub‑
division, one
division, one may may sometimes
sometimes catch catch even
even substantial judicial sub-specialization
substantial judicial sub‐specialization
among the
among the immediate
immediate subordinates
subordinates of of aa govemor,
governor, the the norm
norrn is is the
the all-purpose
all‐purpose
officer serving in the field.
ofñcer field.
The
The connection
connection between between tax gathering and
tax gathering judging is
and judging is nnot o t confined
confined to to
purely
purely imperial
imperial situations.
situations. MuchMuch the the same
same phenomenon
phenomenon is is to
to be be found
found i? in
feudal monarchies. The English Exchequer described
feudal monarchies. The English Exchequer described in chapter 2 is an obvi‑ in chapter 2 is an obvi-
ous example,
ous example, but but inin Tokugawa,
Tokugawa, Japan, Japan, as as well,
well, aa good
good rulerule of of thumb
thumb is
is that
that
40
whoever is responsible
is responsible for supervising
supervising the rice tax is also a judge.
rice tax is also a judge.ºº Feudal Feudal
systems like like empires make make liberal
liberal useuse of the all-purpose
all‐purpose local local administrator.
administrator.
And far more
And more important than than the fact that feudal feudal magnates
magnates enjoyed enjoyed the rights rights
of the highhigh justice and and the low was that their bailiffs, bailiffs, who were primarily
local
local agricultural administrators and
agricultural administrators and tax collectors,
collectors, also also presided
presided over
local baronial court.
the local baronial court.
As we shall see in chapter 2,
we shall 2, English
English common law judges begin begin as as royal
royal
administrators who dispensed dispensed the king's king's justice in the course of doing doing the
rest ofof the king's business. And
king's business. And that great rival rival of of the common law law courts,
courts,
the courts of equity, equity, areare the courts of the chief administrative
administrative official official andand tax
collector of the realm, realm, the chancellor.
chancellor. The justices of the peace peace were simul- simul‑
41
taneously judicial and administrative ofñoers.“
and administrative officers.
We also
We also encounter this afñnity between judging and
affinity between administration in
and administration
magistrates, who are
the town magistrates, are in many ways the equivalent of general‑
of the general-
purpose administrators
administrators of the countryside.countryside. From imperial Japan
From imperial colonial
Japan to colonial
Massachusetts
Massachusetts and and medieval
medieval France,
France, wherever aa body of local notables
of local notables has has
been vested with
been with the authority to direct municipal municipal affairs,affairs, it will be found
be found
with authority to do do local
local judging. Indeed, “magistrate” has
Indeed, the title "magistrate" has become
become
an
an almost purely judicial one in the United United States, although clearly the
States, although the
magistrales
magistrates of America, like
of colonial America, like those of of medieval
medieval Europe, Europe, were all- all‑
purpose urban
purpose authorities. 42 Indeed,
urban authorities.“z preciser because
lndeed, precisely because judging is is traditionally
an integral part of the local
an integral local govemor's
governor's tasks, England and
tasks, in England and America we we
sometimes get the reversal reversa] of rides, as
of rides, midwestem American
as in those midwestern American states states
where county administrators bear the title "judge." “judge.” The Roman Roman praetors,
praetors,
whom we
whom we have have seen play such such a a large role in early Roman
large role litigation, were
Roman litigation,
magistrates.
general city magistrates.
general
We can
We can attribute this congruence congruenoe of judging and and administration
administration to aa
number of factors. First of all,
of factors. return to our triad,
all, to return triad, it is as natural
is as natural for two two
disputtng
disputing parties to tturn u r n to aa government official in places places where there is
a government as tribesmen to turn to the owner of
as it is for two tribesmen of many pigs pigs
where there is is not.
not. The local govemor is a big
local governor is a big man and man and thus “available”
"available" for
judging._Like
judging. Like the owner of many pigs, pigs, the govemor
governor may import import interests
interests of of
hts own
his own into resolution of the dispute,
i n t o the resolution dispute, but also like like the pig pig owner, he he may
counterbalance this drawback by his his greater resources eliciting the consent
resources for eliciting
of or coercmg
coercing the reluctantreluctant party. Second, endless disputes
party. Second, disputes about the the whole

24
24
 T H E PROTOTYPE
THE P R O T O T Y P E OF
O F COURTS
COURTS

web of obligations owed by the locals locals to their lords, churches, sovereigns, and
lords, churches, and
arise in the
chiefs inevitably arise bringing the demands of
the course of bringing of the higher to
lower, which is
the lower, is the core of feudal and imperial
feudal and Moreover,
imperial administration. Moreover,
as the growth of
as of the Exchequer courts shows,shows, these disputes grow outward
conñicts between
from conflicts
from between man and and distant master to conflicts
conflicts between local
between local
man and local
man and local man.
man. "I“I cannot pay my taxes because I] loaned loaned my neighbor
money which he
money refuses to pay back.
he refuses back. Get my money back and I will pay my
tax.” In
tax." ln these instances the administrator will find find the settlement ofof disputes
aa routine
routine part of his
his job. There isis usually no
no one else to do the judging chores,
chores,
and if he
and if he doesn't do them, he
them, he cannot get his
his job done.
done.
Third, mandarín or district officer
Third, the mandarin is there to exert a certain measure
ofñcer is
social control.
of social control. Because imposition of norms
Because the imposition norms as as aa means settling aa
means of settling
between two
dispute between t w o individuals isis one mode
mode of exercising social control, he
exercising social he
with all
along with
will seize on it along all the others.
others.

Courts and the regime

Courts and regime
Perhaps the
Perhaps the most important explaining the historical
important factor in explaining historical congruence
of judging and administering is
and administering is to be
be found in aa far broader aspect of
administratoris responsibility for social control.
the administrator's control. The origin of judicial
43
systems in many parts parts of of the world is to be be found conquest.43
found in conquest. This is
obviously true for imperial judicial systems such as
for imperial as those of Rome, China,
Rome, China,
and
and the black empires of of central Africa such as as the Barotse. As we we shall see
in chapter 2, 2, it is
is also
also clearly true for the common
common law courts imposed imposed over
the old
old moot and hundred folk courts by the Norman
and hundred Norman conquerors. Conquest
created the British
created colonial India
British courts of colonial India and Africa as as well as
as many
colonial court systems.
other colonial systems. The Supreme Court of the United United States andand
the lower federal insofar as
federal courts insofar as they operate on the old Confederacy are
courts of conquerors.
conquerors. Even Even where courts are imposed by force
are not directly imposed
of arms,
arms, they will beidentified
will often be identified with the political regime or with distant
political regime
rather than local
rather local authority.
authority.
Conquerors
Conquerors use use courts as as one of their many instruments
instruments for holding
holding and
controlling conquered
controlling territories. And more
conquered territories. more generally, governing
goveming author-
author‑
ities seek to maintain
ities increase their legitimacy through the courts. Thus
maintain or increase
function of courts in many
a& major function many societies is is aa particular form
form of social
social
the recruiting
control, the
control, recruiting of support for the regime.
When
When conquerors imposeimpose courts,
courts, often we discover aa form
often we form of "extraterritor-
“extraterritor‑
iality.” The new
iality." resolve conñicts
new courts serve to resolve conflicts between conquering cadre
between one conquering
and another or between
and between aa conqueror and and aa native
native when the native native courts
cannot be be trusted
trusted to do the the job. The claim
claim to Roman
Roman citizenship was in part
aa claim
claim to Roman
Roman courts
courts and
and Roman procedure even
Roman procedure these portions of
even in those of the
empire where indigenous functioned. At their inception
indigenous courts functioned. English com-
inception English com‑
mon law
mon resorted to on
law courts were resorted on the civil side almost entirely by Norman
Norman
overlords in their relations with one another.
relations with another. The King's
King's Peace enforced by
Peace enforoed

25
25
 COMPARATIVE AND
COMPARATIVE A N D INTERNATIONAL
INTERNATIONAL ISSUES
ISSUES

those courts was

those courts was largely
largely a a body
body of of rules
rules designed
designed to protect Normans
to protect Normans from from
Saxons. The clerical courts of the Roman Catholic Church, which
Saxons. The clerical courts of the Roman Catholic Church, which areare soso
important in
important in the
the whole development of
whole development of Continental
Continental judicial
judicial systems,
systems, areare one
one
of the
of the foremost
foremost examples
examples of of such
such extraterritorial
extraterritorial courts.
courts.
Aside
Aside from this extraterritorial value
from this extraterritorial value of of newly
newly imposed
imposed courts, courts, thethe con-
con‑
queror is
queror is soon
soon likely
likely to discover aa number
to discover number of of other
other advantages
advantages they they may
may
yield.
yield. A scattered population
A scattered population living largely by
living largely customary and
by customary and local
local law
law
may
may be governed more efficiently by central authorities if a unified body of
be governed more efficiently by central authorities if a unified body of
law
law is introduced. Moreover
is introduced. Moreover the the conqueror
conqueror often often finds
finds thatthat rulerule is
is facilit-
facilit‑
ated
ated by by reaching
reaching some some working relationship
relationship with with the indigenous
indigenous notables
notables
and
and delegating considerable
considerable authority to
to them in
in exchange for their
their support.
support.
As aa result of the interaction
interaction of these two t w o considerations, an an imposed
imposed body
of law is is typically particular laws laws andand customs
customs that have have previously governed
the notables
notables transformed into into aa body of uniform uniform law designated
designated to govern govern
everyone.
everyone. In short,
short, the conqueror melds
melds his his own and
and indigenous upper
indigenous
class law, universalizes it, and
law, universalizes it, and imposes it imposes it over the local
local and and particular
particular
rules
rules that have
have previously been
been the body of law of the peasantry and
and small-
small‑
holders. The Normans Normans combine their own law with with that evolvedevolved by Saxon Saxon
notables in their relations
notables relations with one another to create aa body of law that is is
essentially landowners'
landowners' law. law. They imposeimpose that law over the existing existing plethora
of
of local
local customary law and make
law and make it common to all of of England.
England. We shall shall
see in chapter 2 that English English law and
and courts evolved as
evolved as part of
of the attempt
of a a conquering
conquering regime regime to create centralized and and uniform
uniform rule rule over all all its
its
domains. Some centuries later the descendants of of these conquerors con- con‑
quered
guered another domain. domain. They combined combined their own law with Brahmin Brahmin law, law.
imposed it over local
imposed custom and
local custom and caste rules rules andand made
made it common
it the law common
to all
to India.“
all of India. 44

Thus a function of
a major function of courts in many societies is is to assist in holding
holding
countryside. They provide
the countryside. provide an an extraterritorial
extraterritorial court to adjust relations relations
among the occupying cadres according
among according to their own rules. rules. They also provide
also provide
a umform body of national
a uniform national law law in order to facilitate
facilitate central administration
central administration
and cement the alliance
and alliance between
between conquerors and l o w ] notables.
and local notables.
There _1sis yet another strand to this development.development. One mode consolidating
mode of consolidating
the legitimacy of of an imposed regime
an imposed regime is to provideprovide more more and and better govern-
govem‑
ment services than than its its predecessor.
predecessor. Newly imposed imposed courts might provide provide not
advantages just indicated
only the advantages speedier, fairer,
indicated but speedier, fairer, more resolutions
more just resolutions
of conñ1cts population. New
indigenous population.
conflicts within the indigenous New courts might might compete with
indigenpus modes
indigenous modes of conflict resolution. resolution. To To the extent that they won the
oompetmon,
competition, they would would aid aid the central
central authorities in breaking breaking into cake
into the cake
;)fáocal custom and
of local custom bringing government influence
and bringing influence down down into into the villages.
u ¡cial semces,
Judicial services, like like medical serv¡ces, are aa way into
medical services, i n t o the countryside.
countryside. Such Such
new courts would
new would provideprovide a a body of more specific, uniform,
more specific, uniform, and flexible
and flexible
law that would appeal
law appeal to those locals locals inhibited
inhibited by by the old old customary law. law.4545

would also provide

They would provide an “independent” judge freer of local
an "independent" local dominant

26
26
 T H E PROTOTYPE
THE OFF COURTS
PROTOTYPE O COURTS

interests
interests than
than the village elders or the folk courts.
courts. Thus what we we often mean
by an
by an independent judiciary is is one that serves upper class andand nationalizing
nationalizing
interests
interests rather
rather than dominant local
local interests
interests and
and thus one more satisfactory
46
to persons trying to break through the web of local
persons trying interests.“
local interests. We shall
We
kind phenomenon
trace this kind of phenomenon quite specifically in chapter 2 in describing
describing
the growth of English
English common law courts. In ln spite of a certain antipathy
to litigation
litigation in Chinese imperial
imperial administration,
administration, chapter 4 will show that
local
local administrators also used the availability of judicial services asa
also used as a way of
learning
learning more
more about the countryside and and exerting
exerting government influence
influence often
alliance with the local
in alliance local gentry.
Given
Given these considerations, between administering
considerations, the congruence between administering andandjudg‑
judg-
ing is
ing is hardly surprising,
surprising, for judging, like
like administering,
administering, may
may bebe principally
designed
designed to hold
hold and
and exploit the countryside for the central regime.
regime. Indeed
lndeed
for roughly
roughly the same reasons,
reasons, courts may appeal
appeal to those who wish to resist,
resist,
revolt against or maintain
revolt maintain their independence
independence fromfrom central regimes. Thus
the Cao
the Dai in Viet Nam
Cao Dai Nam built up its its own court system as as part of of its
its sect
building.
building. Access to better judicial services than were provided
provided by the French
French
47
was one
one of the
the benefits members.“
benefits offered to members.

Social
Social control, and conflict
legislation, and
control, legislarí0n, conflict resolution
resolution
The relation
relation ofof the
the social control function
function to the prototype of of courts must
be
be seen, however, in aa far
seen, however, far broader context than the special special case of of the newly
imposed
imposed courts of conquering regimes,
of conquering regimes, even though the special case accounts
large proportion
for aa large proportion of court systems.systems. To do do so
so it is
is convenient to movemove
from the substitution
from office for consent to the substitution of legislation
substitution of office
for disputant-originated rules decision.
rules of decision.
substitution of law for
The substitution for the immediate consent of the parties to aa par‑ par-
be found
rule is to be
ticular rule found widely in the dispute settlement as as well as
as the social
control aspect of judicial work.
control work. Indeed,
lndeed, while it would be be overly ambitious
to propose general evolutionary hypothesis,
propose aa general hypothesis, laws
laws of social
social control seem
arise out of recurrent dispute-settlement situations.
frequently to arise situations. Criminal law
is the most
is most obvious form form of of social control through law. law. Yet simple societies
rarely distinguish
rarely private from
distinguish private criminal law.
from criminal law. The moot and more generally
and more
the popular witnessing and participation
the popular witnessing of and participation in judicial proceedings often
often seem
understanding of communal societies that, where social
express the understanding
to express social units
are small. any dispute between
are small, between two t w º members
members has immediate consequences
has immediate
for the whole.
for the whole. The whole therefore judges, and and judges not only with an an eye
to conflict resolution, but to its more general well‐being.
its own more well-being. This under-
under‑
standing may also
standing be expressed
also be expressed in the conception ºf of the crime of ºf witchcraft,
which is often seen asan interpersonal
which is often seen as an interpersonal dispute carried a level of intensity
carried to a level
dangerous community.“ Banishment,
dangerous to the community. 48
Banishment, aa popular form form of remedy in
relatively societies. is
relatively simple societies, is obviously a a simple mode
mode of conflict resolution
resolution
through the
through physical separation of the parties. But it
the physical it is
is also
also aa simple mode
mode

27
27
 COMPARATIVE
COMPARATIVE AND
A N D INTERNATIONAL
INTERNATIONAL ISSUES
ISSUES

of
of social
social control
control by getting rid
by getting rid ofof a a troublemaker.
troublemaker. And And more more deeply,
deeply, its its
rationale is frequently the fear that harboring
rationale is frequently the fear that harboring a49wrongdoer will bring thea wrongdoer will bring the
wrath of the gods on on the community as as aa whole.
whole.“9
At
At English common law, criminal law was
English common law, criminal law was notnot clearly
clearly separated
separated from from tort
tort
until the seventeenth century. Tort law represented
until the seventeenth century. Tort law represented the extension of judicial the extension of judicial
conflict resolution services
conflict resolution services byby the crown to
the crown to individual
individual disputants
disputants where where oneone
man
man had had injured
injured another.
another. YetYet throughout
throughout the the medieval
medieval period,
period, many
many of of these
these
same
same personal
personal injuries,
injuries, such
such as as assault,
assault, were were recognized
recognized as breaches of
as breaches the
of the
King's Peace. Peace. A single judicial proceeding
proceeding might result in the levy of money
of money
damages to be be paid
paid to the injured
injured party and and aa fine
fine to be paid paid to the crown.
crown.
Of
Of course even today, in both
today, in both common and Roman
and Roman law systems,
systems, a a single act
50
may give rise rise to both
both criminal and and civil proceedings.
proceedings.sº In ln the earliest Roman Roman
law,
law, all all of
of the offenses that we we would today label label criminal
criminal were treated as as
civil
civil injuries
injuries subject to private
private conflict resolution
resolution by judges selected selected by the
parties.
parties. RomanRoman criminal courts with preselected preselected juries were first created created for
the peculiarly political
political crime of malfeasance
of malfeasance in public office
office andand only gradu-
gradu‑
1
acquired general criminal jurisdiction.Sl
ally acquired jurisdiction. 5
Even
Even when we we look at property and and tort-the
tort‐the central pillars pillars ofof inter-
inter‑
personal conflict resolution-we
personal resolution‐we discover important impositions impositions of social
control
control through bodies of of law
law apparently designed designed essentially to serve only
the private interests of the parties.
private interests parties. In ln tort
t o r t law the "reasonable
“reasonable man," man,” and and
his
his equivalent in the civil
civil law of delict, is a
of delict, is a vehicle for importing into personal
importing into personal
disputes general social standards of
general social how men
of how should act.
men should act. IfIf one does n not
o t act
in accord
accord with with the general
general social norrns norms deñningdefining reasonable
reasonable conduct, the
court will will award
award damages to one's opponent. opponent. Anglo-American property law
is essential feudal
is feudal in origin and thus is marked marked by the intimate mixture mixture of of
rightsreserved
rights reserved against one's oneºs equals and and inferiors
inferiors and and obligations owed owed one's
supertors which characterizes feudal
superiors feudal law. Even Even to the extent that modern modern
Continental property law claims to be purified of
be purified its own feudal
of its experience,
feudal experience,
harks back
it harks back to a Roman law
a classic Roman law of property that specifically subjects
52
personal use
the personal use of property to the interests interests of of the state.
state.52
_ At the point at which the judge is is expected
expected to apply general general preexisting
preexisting law
…the
in disputes, that law becomes
the settlement of disputes, becomes an an element of of social control.
social control.
That law law must come from somewhere. Whether its
from somewhere. its origin is in custom, or in
the systematizing
the systematizing of earlier judgments, or in the fiat of of the rulers, or in some
legmmated process
legitimated process of legislation,
legislation, its its very naturenature as as aa general
general rulerule applic‑
applic-
future situations
able to future
able imports some element of social
situations imports social concern beyond beyond
the particular concerns of the particular disputants. The Marxists Marxists tell us us that
laws always embody the interests
laws always interests of of the ruling classes. Certainly even
ruling classes. even those
rules consciously designed
rules designed to meet only the interests interests of of prospective
prospective disputants
cannot be be totally neutral
neutral in the sense of of embodying
embodying no general general social vision
right and
of nght and wrong or or_appropriate
appropriate and inappropriate conduct.
and inappropriate conduct. EvenEven societies
profess no conscrous
that profess conscious desire to impose specific specific social
social norms
norms in the ppro- rº‑
cess mterpersonal disputes will in fact resolve
resolvmg interpersonal
cess of resolving resolve those disputes

28
28
 THE
T H E PROTOTYPE
P R O T O T Y P E OF
O F COURTS
COURTS

on the basis of whether the parties have

basis of have acted
acted "as we always do things”
“as we things" or,o r,
alternatively, have "bloodied
alternatively, have “bloodied the arrows” “spoiled the tjar.”
arrows" or "spoiled tjar."
Thus so so long
long as as aa judge acts to impose
impose preexisting rules on the dis‑
preexisting rules dis-
putants, he
putants, he is
is importing
importing an an element of social control. Or to put the matter
differently, he
differently, he isis importing
importing aa third set of interests,
interests, whatever interests are
embodied in those rules, be adjudicated along
rules, to be interests of
along with interests of the two
parties. prototype*s elements of
parties. In this sense the prototype's of judicial independence
independenoe and and
judgment according preexisting rules
according to preexisting conliict. For the pre-
are always in conflict.
rules are pre‑
existing rules
existing rules almost invariably embody some public interest over and and above
and in contradistinction
and interests of the two parties.
contradistinction to the interests To the extent
parties. To
that the
the judge employs preexisting rules not shaped by the parties them‑
preexisting rules them-
selves, he
selves, he acts notn o t independently but as as aa servant of the regime,
regime, imposing
imposing
interests on
its interests
its on the parties
parties to the litigation.
litigation. Chapter 2 is illustrate
is designed to illustrate
this point at length.
length.

Public regulation
Public regulation
When we we reach
reach the criminal law itself, and the other bodies
itself, and bodies of law that openly
impose
purport to impose the interests
interests of the regime on individuals and groups,
regime on individuals groups, the
vision of the triad
vision triad becomes even even more maintain, particularly where
more difficult to maintain,
judicial office exists. If If the judge is is himself anan officer of the crown,
crown, and the
dispute isis in the form
form of the CrownCrown v. Doe,
Doe, in what sense do do we have a
we have a triad
as opposed
as opposed to aa simple inquisition?
inquisition? We We have noted that judging is
have noted is aa con-
con‑
comitant of of sovereignty or at least political
political authority.
authority. When the whole tribe,
or its representative jury, or the village elders meet to judge aa transgression
its representative
against the people or the community,
the people community, in what sense do we we have aa triad? Yet
over the whole range range ofof our experience we we observe acts that are defined
defined asas
offenses
offenses against the collectivity judged by by the collectivity itself or by "judges"
“judges”
who areare supposed to be be the representatives
representatives of the collectivity.
collectivity.
Thus even
even if if we
we could
could preserve
preserve the notion
nation of
of the completely independent
third in the
third the realm “pure” conflict resolution,
realm of "pure" assuming such aa realm
resolution, assuming realm existed,
we could
we could not do so
do so in the realm social
realm of social control because of
of the very nature
nature
and proceedings in that realm.
office and
of judicial office realm. Moreover,
Moreover, in that realm realm
legal rules
the legal applied to aa litigation
rules applied litigation that in form
form isis aa dispute between
between one
party-the
party‐the community-and
community‐and a second party‐the party-the alleged transgressor- are
alleged transgressor‐are
rules that consciously and
rules and openly were created by and and for one of of the parties.
parties.
Thus to return
return to our prototype,
prototype, the very facts facts that (3)(3) the proceedings
are
are adversary and and (2) preexisting legal
(2) apply preexisting legal n o m s ensure that we
norms we will not
not
have (1)
have an independent judge. For
(1) an even in those few societies that seek to
For even
insulate the judge from
insulate from the rest of government, he
of government, expected to administer
he is expected
the criminal law,
the criminal law, that is, impose the will of the regime
is, to impose regime onon aa party being
being
prosecuted by the regime.
prosecuted With extremely great care to the various rituals
regime. With rituals
independence and
of independence impartiality, some criminal courts may succeed in
and impartiality,
maintaining
maintaining the thirdness. However,
appearance of thirdness.
the appearance However, few of the defendants

29
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 COMPARATIVE AND
COMPARATIVE A N D INTERNATIONAL
INTERNATIONAL ISSUES
ISSUES

in contemporary Western
in contemporary Western criminal
criminal courts
courts areare likely
likely to perceive their
to perceive judges
their judges
as anything other than officers of the regime
as anything other than ofñcers of the regime seeking to control them.53 seeking to control
The criminal defendant
The criminal defendant has not chosen
has not chosen his judge. Indeed,
his judge. lndeed, he he would
would avmdavoid the the
courtroom entirely if
courtroom entirely if he could. But more important, the burglar correctly
he could. But more important, the burglar correctly
perceives that
perceives that the judge is
the judge is there
there asas a a social
social controller
controller to to enforce
enforce the the law
law
against
against burglary.
burglary. He He is is not
not aa neutral third who
neutral third who has has no
no more
more attachment
attachment to to
the state's interest
the state's interest '…preventing burglary than to the burglar's interest in
in preventing burglary than to the burglar's interest in
pursuing
pursuing his his profession.
profession. It It is
is not
not that
that the burglar does
the burglar does n not o t grant
grant legitimacy
legitimacy
to
to the
the law
law against
against burglary.
burglary. While While they
they may
may excuse
excuse their
their own own conduct
conduct in in
various
various ways, most burglars would acknowledge that their ought to
ways, most burglars would acknowledge that their ought to bebe aa law
law
against burglary.
burglary. It It is
is precisely because
because they perceive
perceive the law law to be be legitimate
legitimate
and
and thethe judge obligated to to enforce
enforce itit that they know know he he isis nnot
o t aa neutral
neutral third
third
but a a friend
friend of the prosecution.
prosecution. So So toto put matter somewhat
put the matter somewhat differently,
differently,
when the government or the people people are one of of the parties
parties to a dispute,
dispute. the
triadic structure
structure is necessarily weakened when the judge is either an officer
of the government or is
of is the people
people themselves.
themselves.
weakening of the triad is clearest in criminal law,
While this weakening law, it is also
also fairly
evident in all all bodies of "public"
“public” law,
law, that is, is, law setting
setting out the relations relations
between
between governor and and governed. Those societies that engage engage in the greatest
separation of powers or specialization
separation specialization of judicial function function approach
approach nearest
to aa perception
perception of of judicial independence.
independenoe. At At least the private
private party engaged engaged in
a dispute with one segment of of government is judged by an officer ofñcer of of another
segment.
segment. But, But, asas we
we havehave already seen, seen, it is is aa far more
more typical governing governing
arrangement to to subsume judicial under administrative tasks than
under administrative than to create
a judicial specialization. Moreover
a Moreover it is typical of
is typical of Continental
Continental legal legal systems
and their offspring
and offspring to handle handle a proportion of public law litiga-
a substantial proportion litiga‑
tion
tron in "administrative
“administrative courts,” courts," which are less
are less clearly differentiated from
differentiated from
54
administrative agencies
the administrative agencies than are are the regular courts of the same systems. systems…“
Even
Even in in the United
United States and Commonwealth countries,
and Commonwealth constitutional
countries, where constitutional
separation
separation of powers powers is complete, aa curious paradox arises because
is most complete, because of of
the very inclinati0n
the inclination to separate.
separate. We We encounter aa common pattern in which the
courts of of the central government are relativer relatively independent of the rest rest of of
that government,
government, federal a federal system exists,
exists, andand the highest court of
of the central
central
government refereesreferees constitutional disputes between between the central central government
and the federal
and federal units. situation the central
units. In this situation central court is is frequently and and often
often
rightly perceived
nghtly perceived not as as anan independent third but as as anan arm central
arm of the central
government imposingtmposing central control control on on the federal units. Particularly
federal units. Particularly when
the central court is imposing the will
is imposing will of a national majority over that of aa local
a national local
majority, as in
ma1_o_nty, in many of of the United
United States Supreme Court's Court's race and religion
race and religion
decrsrons,
decisions, the locallocal majority sees the court not as asanan independent adjudicator
rather as
but rather m p o s e r of national
as the iimposer national uniformity over local diversity.55
local diversity. 55

We have
_ We argued that the substitution of office and
have argued and lawlaw for consent gravely graver
impairs the basrc
1mparrs tnadrc logic
basic triadic logic of courts in the sphere resolution and
sphere of conflict resolution and
even more partrcularly when
more particularly when courts are primarily engaged engaged in social control.
social control.

30
30
 T H E PROTOTYPE
THE OFF COURTS
PROTOTYPE O COURTS

Another way of putting this is that precisely because

of putting we vest social control
because we
as well as
as as conflict resolution in courts,
conliict resolution courts, their triadic position is impaired.
position is impaired. For
in most legal litigants are aware that the judge is
legal systems the litigants is concerned nnot
ot
refereeing their two
only with refereeing t w o sets of interests but with imposing
of interests imposing a third set
interests on them both.
of interests both.

Courts as
as lawmakers
Iawmakers
When we
When we movemove from conliict resolution
from the conflict resolution and and social control tasks of of
courts to their lawmaking
lawmaking tasks, tasks, the triad may be even further weakened.
be even
Nearly all
Nearly a l ] contemporary students
students of of courts agree that courts do engage in
least supplementary and
at least and interstitial
interstitial lawmaking,
lawmaking, filling filling in the details of of the
56
statutory or customary law. law.“5 ln several major legal
In legal systems courts go go far
beyond lawmaking. The common law of
interstitial lawmaking.
beyond interstitial Anglo‐American legal
of the Anglo-American legal
system is
system is largely judge-made. Whether we should speak of
we should of the jus gentium
praetorian Ia
and other praetorian
and law imperial Rome
w of imperial Rome as judge-made depends on whether
asjudge‐made
we choose
we choose to call the praetors judges or administrators. administrators. Similarly,
Similarly, Jewish
and Islamic
and contain large
Islamic law contain large components of of judge‐made
judge-made law if we choose
if we
call judicial the
to call the legal
legal pronouncements
pronouncements of of religious otiicials who frequently
religious officials
57
performed in triadic contexts.
performed contexts.57 afíinities and
Moreover, the affinities
Moreover, and overlappings
between
between judicial lawmaking
lawmaking and and administrative rule making
rule making are so so great that
they can be separated. When
artiñcally separated.
be only artifically When administrators do judging, itit is
often impossible to distinguish
often impossible distinguish betweenbetween "case law” and
“case law" and administrative law, law,
as instance in the mass
as for instance mass of of harigami,
harigami, which formed formed an an important portion
8
of traditional Japanese law. law.58 Even in modern
5 Even modem Roman Roman Jaw law systems, where
theoretically the lawmaking power of courts is
the lawmaking severer limited,
is severely substantial
limited, substantial
and articulated bodies of law have
and systematically articulated have been
been judicially constructed
9
from very slight statutory foundations.
from foundations.59 5 Chapter 3 3 focuses on judicial law- law‑
making in the Roman
making Roman law law systems
systems of Europe.
of Western Europe.
60
Much
Much of the thrust of the judicial behavior literature literatureºº has been
has been toward
showing that there has
showing been aa high
has been high correlation between between judges' political
political
attitudes and and their decisions for and and against certain categories of litigants.
of litigants.
literature further suggests that these judicial attitudes fall
This literature fall into
into the same
relativer coherent
relatively ooherent ideological
ideological patterns found found in the national political culture.
national political
Considerany less
Considerably less success
success hashas been encountered in linking
been encountered linking these patterns of
political
political attitudes to the personal personal backgrounds
backgrounds of of the judges, their modes modes
appointment, or the social
of appointment, social and political structures in which they operate.
and political
Nevertheless, the brute
Nevertheless, bmte fact of of judicial discretion, even within systems of h
discretion, even highly
igth
articulated statutory and
articulated constitutional law,
and constitutional has been
law, has been more sufñciently
more than sufficiently
demonstrated. In short, short, while the development of aa political political psychology of
judging may be still at an
be still an early stage, stage, the behavioral
behavioral literature has has fairly
demonstrated that many judges are not entirely
convincingly demonstrated entirer "neutral"
“neutral” thirds
instead bring
but instead bring to the triad
triad distinct public policy preferences, preferences, which they
seek to implement through their decisions. decisions.

31
31
 COMPARATIVE
COMPARATIVE AND
A N D INTERNATIONAL
INTERNATIONAL ISSUES
ISSUES

Aside
Aside from
from actual empirical discovery
actual empirical discovery of of widespread judicial lawmaking,
widespread judicial lawmaking,
it is clear that such lawmaking is logically required wherever law
it is clear that such lawmaking is logically required wherever law is
is sub-
sub‑
stituted for consent in the triadic resolution of conflict. For if
stituted for consent in the triadic resolution of conflict. For if the third person the third person
must resolve
must resolve conflict, and ifif he
conflict, and must do
he must do soso by preexisting law,
by preexisting then he
law, then he must
must
“discover” the preexisting law. Because no human society has ever sought to
"discover" the preexisting law. Because no human society has ever sought to
set down
set down an an absolutely
absolutely complete
complete and and particularized
particularized body body ofof preexisting
preexisting law law
designed exactly to meet
designed every potential
meet every conflict, judicial "discovery"
potential conflict, “discovery” must must
often of necessity be be judicial lawmaking.
lawmaking.
In addition
addition to the simple fact and logical logical necessity
necessity of of judicial lawmaking,
lawmaking,
it isis clear that many societies, including
societies, including even even those that seek to separate
judicial fromfrom administrative and and legislative
legislative office,
office, quite deliberately vest
lawmaking functions in courts. In
major lawmaking ln common law countries numerous numerous
instances may be
instanoes be found
found in which
which legislatures
legislatures have
have given
given courts new jurisdic‑
jurisdic-
tions without giving them new substantive statutory law for those jurisdictions.
Alternatively,
Altematively, they may may have
have written statutes whose key operative words are are
common law terms of art that incorporate incorporate past and invite future
and invite future judicial
lawmaking. In the United
lawmaking. United States the statutory creation of of aa federal
federal labor
contract jurisdiction without the provision substantive federal
provision of any substantive federal law of
contracts and and the Sherman Anti-Trust Act's condemnation of conspiracies
Actºs condemnation
in "restraint trade" are obvious examples. In France
“restraint of trade” France the creationcreation of
an administrative courts with extensive
an elaborate hierarchy of administrative extensive jurisdiction
combined with a a singularly cryptic body of statutory administrative administrative law
was surely an an invitation administrative judges to make
invitation to administrative make their own law- law‐‑
an invitation
an invitation that they have accepted. 61
have accepted…“
Two basic judicial lawmaking
lawmaking situations exist. exist. The judges may make make law
in the sense that aa generalized political authority does triadic conflict resolu‑
generalized political resolu-
tion, administers and and enforces various social social norms, announces new
and announces
norrns, and new
norms
norms without clearly differentiating
differentiating among among the three. Thus in Llewellyn's
Llewellyn's
and Hoebel's
and famous example of Cheyenne lawmaking,
Hoebel's famous “soldiers,” aa
lawmaking, the "soldiers,"
principal task is
group whose principal is to supervise the tribe's collective buffalo- buffalo‑
huntmg
hunting operation, are are confronted
confronted by an an incidental
incidental task of conflict resolution.
In this context they announce that from now on no one should should borrow
another's horsehorse without asking permission.“2
asking permission. 62 short, frequently when
In short, when we we
speak of judicial lawmaking,
lawmaking, we we are really
really observing the phenomenon
phenomenon of
merged judicial, administrative, and
merged and legislative lawmaking powers
legislative lawmaking powers in aa single
political authority which
political which we have already noted
we have noted is more common
is far more common than than
judicial separation.
separation.
lawmaking situation is
second basic judicial lawmaking
The second is one in which separated
which aa separated
and specialized
and nevertheless makes
specialized judiciary nevertheless makes law.law. We have just noted
We have noted that in
theory, in
theory, … fact, and in the consensus of
fact, and of scholarly observers,
observers,63 all such
63 all such courts
do
do engage in lawmaking.
lawmaking.
mfsttitfl:lfí£23£f£;kirtighsituations
Both of these lawmaking situations arise from from political
political economy in in the
choose
most to allocate sufñcie:t
fundamental sense of resa
that term. Most societies
somet1es cannot afford afford or ordo_not
do not
choose to allocate sufficient resources provide three men
ouroes to provide men or three institutions

32
32
 THE PROTOTYPE O
T H E PROTOTYPE OFF COURTS
COURTS

goveming that can be

to do the job of governing be done by one.one. The general governor,
govemor,
whether he he be
be king, chief, popular assembly,
king, chief, assembly, or district officer,
ofñcer, will do
lawmaking and
the lawmaking and the judging because he has enough
he has enough resources
resources to do all the
governing.
goveming.
Even when a
Even a society does choose to nourish nourish aa number of of governing
governing
bodies, including one or more
bodies, including devoted to triadic conflict resolu‑
more primarily devoted resolu-
interlocking elements of political
tion, two other interlocking
tion, political economy come to the
fore. Separate courts are
fore. are aa very expensive commodity.
commodity. Once in existence
there will be
there be strong
strong and and continuous pressure to pile pile additional
additional tasks on
them, to get one's money's
them, money's worth out of them, so
of them, so to speak.
speak. In the United United
States aa strong constitutional tradition of separation of powers has allowed
has allowed
the Supreme Court to fend fend off some unwanted
unwanted additional
additional tasks.
tasks. But that
very same tradition has served asa
has served as a basis for the Court acquiring enormous
lawmaking powers.
lawmaking powers. In the UnitedUnited States today federal and and state courts are
drawing school district lines,
drawing lines. administering
administering prisons, supervising railroads,
prisons, supervising railroads,
prescribíng personnel
prescribing personnel procedures police departments,
procedures for police altering the time
departments, altering
schedules and and design features of vast construction projects,
design features projects, determining
determining
64
patterns of
patterns urban development,
of urban development, and and preserving
preserving the seacoasts.
seacoasts.º4 And one
basic reason
reason they are doing these things is that where there are tasks to be
are doing be
done,
done, it will frequently appear
appear quicker and cheaper to assign them to
an existing government agency than to create a new one. one. Thus even in the
context of aa strong ideological commitment to separation of powers,
strong ideological powers, courts
will pick up many lawmaking lawmaking and administrative tasks simply because
and administrative because
they are there.
are there.
Because
Because there is aa general tendency to economize piling tasks on exist-
economize by piling exist‑
institutions, any expensive institution
ing institutions,
ing institution of government can be be expected to
have multiple functions.
have multiple functions. This phenomenon appears in preliterate,
phenomenon appears feudal,
preliterate, feudal,
mercantile, and
mercantile, and industrial Multiple‐function government institutions
societies. Multiple-function
industrial societies.
also have aa second
also have political economic advantage.
second political advantage. Sometimes consciously and
sometimes not, govemmental redundancies
not, they create governmental redundancies that have have significant
survival value for the political
survival political system.
system. In no no society is is politics marked
marked by by
rational sequences or
totally rational or even certainty of of outcome. In all a l ] governing
goveming
systems,
systems, key links intermittently
key links fail. Thus the existence
interrnittently fail. existence of many alternative
accomplishing any given task of government may be
channels for accomplishing bean import‑
an import-
guarantee of
ant guarantee of even minimal political efficiency.
minimal political efñciency. If police cannot quell
If the police quell
riot, perhaps
the riot, perhaps the army can. If the city government cannot provide
can. If provide voca-voca‑
tional
tional education, perhaps the states can.
education, perhaps can. If legislature will nnot
If the legislature o t respond
respond
to the needs racial minorities,
needs of racial perhaps the executive
minorities, perhaps will.
executive will.
enthusiasm of students of organization for rationalizing
The earlier enthusiasm rationalizing
administration through
administration through an an extreme formform of the division of labor, labor, in which
each
each unit did did dedo and
and could
could do only one thing,thing, has faded. The messiness of
has faded. of
govemments, with their multiple
most governments, multiple overlapping and and competing agencies,
certain advantages after all.“
has certain
has all. 65 Governmental
Govemmental redundancy is not n o t only anan
advantage
advantage in the sense that a new
a new agency can be found
be found to take over from aa
from

33
33
 COMPARATIVE AND
COMPARATIVE A N D INTERNATIONAL
I N T E R N AT I O N A L ISSUES
ISSUES

failing one. As
failing one. As proponents
proponents of of mixed government and
mixed government the d.ivision
and the division of powers
of powers
have argued from ancient times, multiple government agencies may also serve
have argued from ancient times, multiple government agencies may also serve
as
asa a salutary
salutary check
check on one another.
on one another. But
But what
what has
has often
often been
been less
less clear
clear i.s
is that
that
agencies cannot
agencies cannot check
check one another
another unless
unless each
each is is capable
capable ofof performmg
performing at at
least some of
least of the
the vital
vital functions
functions of
of the other. If
the other. If each
each agency
agency of of government
government
is
is so specialized that it cannot do anything
so specialized anything but one preset operation operation in
the total process
process of government, the assemblyassemny line results will give each
line that results each
agency an an absolute veto over the operations of of government.
government. For For ifif any oneone
withdraws, the product cannot be
withdraws, completed. In
be completed. theory, perhaps,
ln theory, perhaps, skillful
skillful
bargaining with elaborate
bargaining elaborate side payments among among the veto wielders could could pro-
pro‑
duce both internal
duce both internal checks and a functioning government.
and a functioning government. In practice,
practice, the
more
more each participants” threats of absolute
each participant can meet other participants' absolute veto
by
by moving perform the tasks of the threatener,
moving to perform threatener, the moremore likely we we are
are to
functioning moderation
achieve the functioning moderation that seems to be be the aim proponents
aim of the proponents
of mixed government.
of mixed government.
Thus it is govemments in which the independence
is precisely in those governments independence of
the judiciary is is stressed,
stressed, because of a desire
a desire to check and balance, that the
and balance,
judiciary is lawmaking and
is likely to acquire substantial lawmaking and administering
administering cap- cap‑
abilities. In
abilities. ln such govemments existence of
governments the existence of checks and and balances means
balances means
numerous roadblocks along
numerous roadblocks along any policymaking
policymaking avenue,avenue, soso that aa great pre- pre‑
m i u m is
mium placed on
is placed on exploring
exploring alternative avenues detours. In
avenues or detours. ln those same
same
governments,
governments, agencies pushed pushed to watch and check one another necessarily
acquire one another's capabilities. Thus the ultimate strategy for anyone
anotherºs capabilities. wish‑
anyone wish-
ing
tng to get something out of of government is to treat all agencies as
all agencies as multiple
multiple
purpose,
purpose, shopping among among them untiluntil any one or any combination of them them
Will yield
will desired. 66 Americans,
yield what is desired.'56 Americans, for instance, have learned
instance, have learned that if if the
wonºt give them what they want,
Congress won't want, the president may, may, and and if
if he will
he will
not, perhaps the Supreme
not, Supreme Court will.will.

Judicial
Judicial independence and judicial
independence and lawmaking
judicia/lawmaking
In great many nations
In aa great nations judicial independence
independence is is conceived
conceived nnot in terms of
o t in of
a tr1parttte constitution
a tripartite constitution withwith checks and and balances
balances but simplysimply in in terms of of aa
professronal judiciary
professional judiciary sufficiently insulated from
sufñciently insulated other governmental
from other governmental influ- influ‑
within its
ences to operate within its own sphere underunder the rule of law.
rule of law. The courts of
of
Great Bntam and czarist Russia would show the
Great Britain and czarist Russia would show the range of this range of this sort of inde‑
of inde-
pendener It
pendence. It may be be found
found all the way
all the way from constitutional systems
liberal constitutional
from liberal systems
emphasmngresponsible
emphasizing responsible but but centralized
centralized political authority to
political authority pure auto-
to pure auto‑
cracnes, Obv10usly
cracies. political systems that
Obviously some political that seek to to concentrate political
concentrate political
authonty fmd that
wrll find
authority will that the triad is
the triad an extremely
is an useful tool
extremely useful tool of conflict resolu‑
of conflict resolu-
tion. Such systems will then encounter the dynamics of the
tion. Such systems will then encounter the dynamics of the triad that we havetriad that we have
already encountered. They may be willing to pay the costs
already encountered. They may be willing to pay the costs to centralization to centralization
of creatmg_a
of relatively independent
creating .a relatwely independent judicial authority in
judicial authority in order
order to to reap the
reap the
beneñts of increased capacity for conñict resolution.
benefits of mcreased capacity for conflict resolution.

34
34
 THE
T H E PROTOTYPE
P R O T O T Y P E OF COURTS
O F COURTS

Preciser because
Precisely because they want such triads for routine routine conflict resolution
resolution amongamong
private citizens while seeking
private seeking to keep political power away from
keep political from the judges,
regimes necessarily
such regimes difficulties with their judiciaries. For
necessarily encounter difficulties we
For we
have already seen that in the course of doing
have conflict resolutions,
doing conñict resolutions, either under
preexisting legal
preexisting legal rules otherwise, courts will make
rules or otherwise, law. To
make law. To express the same
thing differently,
thing differently, they will exercise political political power.
power. When this inevitable inevitable
phenomenon is
phenomenon is encountered,
encountered, both both autocratic and and constitutional regimesregimes of
political authority can respond
centralized political
centralized respond in one of of four ways. First, First, they
can
can yield and
and in the process become less centralized. Second,
less centralized. Second, they can system- system‑
atically withdraw from from the legally defined defined competence of of the judiciary all
matters
matters of political interest to themselves. Third,
of political intervene at will
Third, they may intervene
pull particular cases out of the courts and
to pull and into hands. Fourth,
into their own hands. Fourth,
they can create training, organization,
recruitment, training,
create systems of judicial recruitment, organization, and and
promotion that ensure that the judge will be be relatively neutral
neutral as as between
between
private parties
two purely private parties but will be faithf'ul servant of
be the absolutely faithful of the
regime on all
regime all legal
legal matters
matters touching its interests.
its interests.
mixes of all
Various mixes all four of of these solutions are to be found in Western
be found
legal systems.
legal England and
systems. England Continental countries have
and most Continental have deviated
from theories of
sufficiently from of parliamentary sovereignty to allow consider- consider‑
able autonomy to their courts.
able courts.“ 67
intersection of
Nevertheless, the intersection
Nevertheless, of courts
and powerful bureaucracies in these countries is particularly instructive and
and powerful and
illustrative of tactic two.
illustrative two. Let us us suppose that courts actually sought to to serve
resolvers between
as triadic conflict resolvers
as between administrative agencies and and aggrieved
individuals. Let us
individuals. us also
also suppose that they sought to do do soso according
according to the
prototype set out at the beginning
prototype beginning of of this discussion.
discussion. Then an an independent
judge, applying preexisting law in an
applying the preexisting setting would seek to
an adversary setting
decide whether the bureaucracy or the individual individual citizen shouldshould triumph
dispute. Such
in aa dispute. proceedings would inevitably
Such court proceedings inevitany operate to substitute
fact‐finding and
judicial fact-finding lawmaking for administrative fact-finding
and lawmaking fact-finding and law‑
and law-
making. For
making. bureaucracies typically operate under
For bureaucracies under rather broad
broad and and vague
statutory mandates
mandates and uneertain or changing fact situations. Thus
and either uncertain
they are inevitably themselves supplementary lawmakers. Just as as inevitably,
then,
then, when courts seek to resolve conflicts by
resolve conflicts by the application "preexisting"
application of “preexisting”
rules where an
legal rules
legal an administrative
administrative agency is is one of the parties,
parties, they must
either accept the agency's supplementary lawmaking lawmaking or do their own. own. But
the agency's
the agency's own lawmaking
lawmaking is be highly particularized and
is likely to be and deeply
embedded in the very decision
embedded decision being disputed by the other litigant.
being disputed litigant. Thus if,
hand, the court accepts the agency's lawmaking, in many instances
on the one hand,
on
will also
it will also automatically be be finding
finding for it and and against the other litigant. It
litigant. It
rather as
is rather
is as if,
if, in the ancient RomanRoman situation, instead of the two disputants
situation, instead
having to agree
having agree on the legal legal rule
rule to govern their dispute,
dispute, one disputant was
authorized to impose
authorized impose aa rule rule of hishis choosing on on the other.
other. If, on the other
I f , on
hand, the court does its
hand, its own
own supplementary lawmaking, it has has become
become willy
nilly aa sharer in the political
political power of the regime.

35
35
 C OMPARATIVE
COM PARATIVE AND
A N D INTERNATIONAL
I N T E R N AT I O N A L ISSUES
ISSUES

As
As we we shall
shall see see in chapter 2,
in chapter the British
2, the British solution
solution to this paradox
to this paradox has has
essentially been been tactic two,
two, that is, to selectively
is, to selectiver but systematically
systematically with‑ with-
draw large areas of
large areas of conñict
conflict from judicial resolution.
from judicial resolution. British
British administrative
administrative
Jaw
law is is principally a a series of doctrines that command command courts
courts to defer to
bureaucratic lawmakinglawmaking and and thus to render render themselves incapable of provid-
of provid‑
ing
ing aa neutral
neutral and and independent resolution of most conflicts
independent resolution conñicts that might arise
between
between government and and citizens.
citizens. As we we shall
shall see
see in chapter 3 the French French
solution
solution has has essentially been been tactic four. four. The French have created
French have created aa corps
of administrative
administrative judges who form form an an integral
integral part of the bureaucracy itself,
sharing
sharing its its values and experiences.
and experiences. In addition the government exercises
strong influence
inñuence over the selection, training, promotion, and
training, promotion, and assignment
of the regular judiciary in in order to assure its its loyalty to political
political authority.
authority.
Finally, French "public
Finally, French “public law" law” itself instructs
instructs judges to favor the interests interests of
the state over those of individuals individuals when conñicts between
when conflicts between the two arise. arise.
At Revolution of 1905,
At the Revolution 1905, the czarist regime, regime, apparently embarrassed by
highly independent and
the highly professional judiciary it had
and professional had beenbeen nurturing
nurturing
for many years, adopted adopted tactic three. three. It lt promptly set up special courts to
up special
revolutionaries to Siberia and
bring revolutionaries
bring scaffold. These courts plucked
and the scaffold. plucked
what cases they liked liked fromfrom the regularregular criminal processes.
processes. Tactic three is
also aa favorite
also favorite of military juntas that impose
of military impose themselves atop going civil civil
regimes, one of whose features features is is aa relatively independent judiciary. While
regular courts function,
the regular
the function, courts martial martial take those few cases of special
of special
concern to the regime.
concern
Read in one way, the prevalence
Read prevalence of of these four tactics is testimony to
independence of
real independence
the real ofjudiciaries.
judiciaries. In ln many nations at many times judges
many nations
have been
have sufñciently their own masters
been sufficiently masters to require even highly centralized
require even
regrmes to adopt special tactics to avoid
regimes sharing power with them.
avoid sharing Even in
them. Even
htghly_centrali2ed
highly centralized regimes, regimes, judicial lawmaking is
lawmaking a reality a reality that must be
be dealt
With, just
with, just as is as it is in regimes
regimes that deliberately assign substantial lawmaking
assign substantial lawmaking
authority to to the judiciary.
lf judges then
If then are are inevitably lawmakers, what happens
inevitany lawmakers, happens to our prototype
mdependenoe, preexisting
of independence,
of preexisting legal rules, adversary promdings,
lega] rules, proceedings, and and dichotom‑
dichotom-
sol_utrons, and
ous solutions, and more particularly, what
more particularly, happens
what happens to the substitution of
to the substitution of
legrslat1on for legal rules
legislation for legal rules consented to by consented to by the parties?
parties? In ln the first place,
the first
lawmakmg and
lawmaking judicial independence
and judicial independence are fundamentally incompatible.
are fundamentally incompatible. No No
regrme is
regime likely to
rslikely allow significant
to allow signiñmnt political power to
political power be wielded
to be wielded by by an isolated
an isolated
jttdrcral corps
judicial corps free free of of political
political restraints.
restraints. To To the extent that
the extent courts make
that courts make law,law,
judges
judges willwill be incorporated into
beincorporated the governing
into the coalition, the
goveming coalition, the ruling the
elite, the
ruling elite,
responsrble representatives of the people, or however
responsible representatives of the people, or however else the political regime else the political regime
maybe
may expressed. In
be expressed. ln most societies this
most societies this presents
presents no problem at
no problem at all
all because
because
judgmg rs only one. of the many tasks of the
judging is only one of the many tasks of the governing cadre. In societies governing cadre. ln societies
that seek
that seek to to create
create independent judiciaries, however,
independent judiciaries, reintegration will
this reintegration
however, this will
nonetheless occur, even at substantial costs to the proclaimed goal of judicial
independence.

36
36
 THE
T H E PROTOTYPE
P R O T O T Y P E OF
O F COURTS
COURTS

We will encounter numerous

We reintegration in chapter 2,
numerous examples of this reintegration 2,
which deals with English independence. In the United
English judicial independence. United States there
has been a long debate over elected versus appointed
a long appointed judiciaries, with the
key question being being the extent to which judges ought to be be subordinated
subordinath
to the democratic politicalpolitical regime.
regime. This debate is ultimately unresolvable
unresolvable
because
because it involves
involves two conflicting goals: one, one, that triadic conflict resolvers
resolvers
be independent;
be independent; two, that lawmakers lawmakers be be responsible
responsible to the people. Indeed, Indeed,
is because
it is inevitany involves
because judging inevitably involves lawmaking
lawmaking and social control
and social control as aswell
as conflict resolution
as resolution that the tendency of judging to be associated
be closely associated
with sovereignty or ultimateultimate political
political authority, noted early in this discussion,
authority, noted discussion,
is to be
is found in all
be found societies.
all societies.
Clearly, where judicial lawmaking
Clearly, occurs, adversary proceedings are some-
lawmaking occurs, some‑
thing of
thing of aa facade.
facade. IfIf the judge is is consciously seeking
seeking to formulate
formulate general
general rules
mies
application, his
for future application, his considerations must range range far beyond immedi‑
beyond the immedi-
ate clash of interests
clash of interests ofof the
the ttwo parties. That is the message
w o parties. message of “Brandeis
of the "Brandeis
brief,” with its parade
brief," “legislative” facts,
parade of "legislative" facts, that is,
is, facts about the general
general
social conditions as as opposed to the immediate dispute. Such
facts of the dispute.
immediate facts Such briefs
briefs
are open acknowledgment by bench
are bench and
and bar that the parties parties are essen-
essen‑
tially anan example or sample of of the social reality to be upon rather
legislated upon
be legislated rather
than disputants whose conflict is be resolved.
is to be Even where judicial law-
resolved. Even law‑
making is
making is less
less conscious or more surreptitious, the creation of general
more surreptitious, rules
general rules
necessarily involves looking looking well beyond parties. Typically,
beyond the two parties. Typically, the con-con‑
struction of prooeeds by appealing
rules proceeds
of such rules appealing to custom, reasonableness,
reasonableness,
common sense, business necessity,
sense, business fairness, or some other similar covers
necessity, fairness,
for considerations of general social utility. utility. We
We shall
shall see in chapter 3 that
doctrine created by by academic legal plays aa crucial role
legal scholars plays role in the deci-
deci‑
sion of judges in Roman Roman law countries.
countries. This role is
role is evidence of the extent
to which such such judges are making their decisions on the basis of general
are making general con-
con‑
siderations of logic and and social
social utility rather trying to resolve
rather than simply trying resolve the
immediate conflict before them. them.

Notes
Notes
¡ M. Shapiro, and Politics
Shapiro, Law and Politics in the Supreme
Supreme Court (New York:
York: Free
Free Press,
Press, 1964);
1964);
W. Murphy andand J. Tanenhaus, The Study
]. Tanenhaus, Study of
of Public
Public Law (New York:
York: Random
Random
House, 1972).
House, 1972).
2 T.
T. Becker, Comparative Judicial
Becker, Comparative Politics (Chicago: Rand
Judicial Politics McNally, 1970).
Rand McNally, 1970).
3 G.
G. Aubert,
Aubert, "“Competition
Competition andand Dissensus: Two Types of Conflict
Conñict Resolution
Resolution,","
Journal of
Journal Confict Resolution,
of Conflict Resolution, 7 (1963): 26;
26; R. Abel,
Abel, "A
“A Comparative
Comparative Theory of of
Dispute
Dispute Institutions
Institutions in Society," Law and
Society,” Law and Society Review,
Review, 8 (1973):
(l973): 217.
4 Thus courts may be be seen
seen asas a special case of the dyadic‐triadic
a special dyadic-triadic relationships
of Simmel, The Sociology of
of Simmel (G. Simmel, of Georg
Georg Simmel
Simmel [New
[New York:
York: Free
Free Press,
Press,
1950 .
1950]).
55 H. lyolff, Roman
H. Wolff, Law: An
Roman Law: Historical Introduction
An Historical Introduction (Norman: University of
Oklahoma Press,
Press, 1951).
l95l).
6 C.
C. K. Allen, Law in the Making
Allen, Law Making (London: Oxford
Oxford University
University Press,
Press, 1958).

37
37
 COMPARATIVE AND
COMPARATIVE A N D INTERNATIONAL
INTERNATIONAL ISSUES
ISSUES

77 L. Pospisil, Kapaku
L. Pospisil. Kapaku Papuans
Papuans and and Their Law, Yale
Their Law, Yale University
University Publications
Publimtions in in
Anthropology,
Anthropology, no. no. 54 (New Haven:
54(New Haven: Yale
Yale University Department of
University Department of Anthropology,
Anthropology.
1958).
8 E.
E. Hoebel,
0 umvers1ty
0 °

8 Hoebe1, The The Law

Law ofof Primitive
Primitive ManMan (Cambndge,
(Cambridge, Mass.Mass.:: Harvard
Harvard University
Press,
Press, 1954).
1954). . . , . .
9 J. Cohen, "Chinese
]. Cohen, “Chinese Mediation
Mediaúon on on the
the Eve
Eve ofof ModemJZatwn,
Modemization,” Califorma California LawLaw
Review, 54
Review, 54 (1966):
(1966): 1201;
1201; D.D. Henderson,
Henderson, Conciliation and Japanese
Conciliation and Japanese Law Law (Seattle:
(Seattle:
University
University of Washington
Washington Press, Press, 1965).
1965). .
10 L.L. Fuller,
Fuller, "Collective
“Collective Bargaining
Bargaining and and the Arbitrator,"
Arbitrator,” Wisconsin
Wisconsin Law Law Revtew,
Review,
1963, p. 3.
1963, 3.
11 J.J. Gennan,
Getman, "Labor
“Labor Arbitration
Arbitration and and Dispute
Dispute Resolution,"
Resolution,“ Yale Law Journal, 88
Yale Law 88
(1979): 916.
(1979): 916.
12 See
See F. Sander and and F. Snyder,
Snyder, Alternative Methods Methods of of Dispute
Dispute Settlement
Seulement
(Washington, D.C.:
(Washington, D.C.: American
American Bar Association,
Association, 1979);
1979); M. Cappelleti,
Cappelleti, ed., ed., Access
Justice, vols.
to Justice, vols. I1 and
and 2 (Milan:
(Milan: Dott.
Dott. A. Guiffre
Guiffre Editore,
Editore, 1978).
13 ].J. Merryman,
Mgerryman, The Civil Civil lLaw Tradition (Stanford,
a w Tradition (Stanford, Calif.: Stanford
Stanford University
University Press,
Press,
1969).
196 ).
14 L. Fallers, Law Precedent (Chicago:
Law without Precedent (Chicago: Universtiy
Universtiy of Chicago Press, Press, 1969).
1969).
15 P. Bohannan, Justice and
Bohannan, Justice and Judgment among among the the Tiv (London: Oxford Oxford University
University
Press, 1957).
Press, 1957).
Pospisil, Kapaku
16 Pospisil, Papuans and
Kapaku Papuans and Their Law.
Law.
17 H. Wechsler, Politics andFundamental
Wechsler, Principles, Politics and Fundamental Law Law Cambridge,
Cambridge, Mass.: Harvard
Mass.: Harvard
University
%t_t)i;;:rsity Press,
Press, 1961); Dworkin, Taking
1961); R. Dworkin, Taking Rights Serioust (London:
Rights Seriously Duckworth.
(London: Duckworth,
1977).
18 J..|. Dawson,
Dawson, The OraclesOracles of the Law Law (Ann University of Michigan
(Ann Arbor: University Michigan Law Law
School, 1968).
School, 1968).
Allen. Law
19 Allen, Law in the Making.
20 R. Mnookin
Mnookin and and L. L. Kornhauser, “Bargaining in the Shadow of the Law:
Komhauser, "Bargaining Law: The
Case of Divorce,"
Divorce,” Yale Yale Law
Law Journal,
Journal, 88 88 (1979):
(1979): 950.
“Private Ordering
Eisenberg, "Private
21 M. Eisenberg, through Negotiation:
Ordering through Dispute Settlement and
Negotiation: Dispute and
Rulemaking," Harvard
Rulemaking," Harvard Law Review, 89
Law Review, 89 (1976): 637.
(1976): 637.
Ibid.; J.
22 Ibid.; ]. Coons, “Approaches to Court Imposed
Coons, "Approaches Compromise‐The Uses
Imposed Compromise-The Uses of
Doubt and
Doubt and Reason," Northwestern University
Reason," Northwestern University LawLaw Review,
Review, 58 58 (1964) 750; J. Coons,
(1964) 750; Coons,
TCompromise as
"Compromise as Precise Justice," in .1
Precise Justice,” J.. Pennock andand J. Chapman, eds.,
J. Chapman, eds., Compromise
Compromise
tn Ethics,
in Ethics, Law, and and Politics York: New
Politics (New York: University Press,
New York University 1979), p.
Press, 1979), 191.
p. 191.
Compare M. Shapiro, "Compromise
Compare “Compromise and Litigation,” in Pennock and
and Litigation," and Chapman,
Chapman.
Compramise in Ethics,
Compromise Ethics. Law, and Politics.
and Politics.
23 On
23 On the problem of certainty and
the problem English Law
and probability in English Shapiro, "Law
Law see B. Shapiro, “Law
and
and Screnoe
Science in…Seventeenth‐Century England,” Stanford
Seventeenth-Century England," Law Review,
Stanford Law Review, 2121 (1969): 727.
24 Coons also
24 Coons ñfty-ñfty splits in cases in which
proposes fifty-fifty
also proposes which ttwo w o important publicpublic
poltctes relevant, one favoring
are relevant,
policies are favoring one of and the other the other party.
of the parties and party.
25 M.
25 :id¿egrclrt;maa
Gluckman, CustomCusftt;m and Conflict in
and Conflict in Africa
Africa (New York: York: FreeFree Press,
Press, 1959);
Hoebel,, Thee Law w0 rimitive Man; H. Jacob,
of Primitive Urban Justice
Jacob, Urban ' (Englewood Cliffs, ' .
NJ.: Prentice-Hall,
N.J.: PrenticeHall, 1973). Justtce (Englewood Cliffs
26 H.
26 flg.£erman,
Berman, Jusitice in in the US.S.R. (Cambridge, Mass.: Harvard
U.S.S.R. (Cambridge, Harvard University Press, Press.
1963).
27 R. Barton,
27 Barton, The Kalingas: Th Their Institutions and
eir Institutions C t
and Customary '
Law (Chicago: . Univer-
- _
Chicago Press,
sity of Chimgo Press. 1949).
1949). '“ º " ' º ' y L º w (ºh'ºººº- U'“Vºf
28 M. Shapiro,
28 (1972): Shapiro. “Toward aa Theo
125. "Toward Theory ry of
of Stare Decisrs,
Stare Decisis,"
' ” Journal
Journal of of LLegal
egal Studies '
Studtes. I1
(1972): 125. '
Cohen, in California
29 Cohen,
29 California Law Review, 54: 1201.
Law Review, 1201.
30 Allen, Law in the Making.
30

38
38
 T H E PROTOTYPE
THE OF
PROTOTYPE O COURTS
F COURTS

31
31 G. Haskins,
Haskins, Law andand Authority in Early Massachusetts (Cambridge,
Early Massachusetts (Cambridge, Mass.:
Mass: Harvard
Harvard
University Press,
University Press, 1960).
1960).
32 Mehren, ed.,
32 A. von Mehren, Law in
ed., Law in Japan
Japan (Cambridge, Mass: Harvard
(Cambridge, Mass.: University Press,
Harvard University Press,
Hideo Tanaka,
1963); Hideo
1963); Tanaka, ed., Legal System
ed., The Japanese Legal System {Tokyo: University of Tokyo
(Tokyo: University
Press, 1976).
Press, 1976).
33 Jacob,
33 Urban Justice.
Jacob, Urban
34 J.
34 J. Casper,
Casper, American Criminal
Criminal Justice:
Justice: The Defendant's Perspective
The Defendant's (Englewood
Perspective (Englewood
Cliffs, N.J.:
Cliffs, Prentice-Hall, 1972).
N.J. : Prentice-Hall, 1972).
35 C.
35 Wanner, "Public
C. Wanner, “Public Ordering of Private Relations:
of Private Relations: Winning Civil Court Cases,"
Winning Civil Cases,"
Law and Review, 9 (1975):
and Society Review, 293.
(1975): 293.
36 Henry Abraham,
36 Abraham, The The Judicial
Judicial Process, 3d ed.
Process, 3d Oxford University
(London: Oxford
ed. (London: University Press,
Press,
Becker, Comparative
1975); Becker,
1975); Comparative Judicial Politics; T. Eckhoff,
Judicial Politics; “lmpartiality, Separation
Eckhoff, "Impartiality, Separaúon
of
of Powers, Independence,” Scandinavian
and Judicial Independence,"
Powers, and Scandinavian Studies Law, 99 (1965):
Studies in Law, 9.
(1965): 9.
37 .|.
37 J. Gibbs, erlle Moot:
“The Kpelle
Gibbs, "The Moot: aa Therapeutic ModelModel for the Informal
Informal Settlement
Disputes,” Africa, 33
of Disputes," l.
(1963): 1.
33 (1963):
38 Gluckman, Politics.
38 M. Gluckman, Politics, Law and Ritual in Tribal
and Ritual Tribal Society (Chicago: Aldine, 1965).
(Chicago: Aldine, 1965).
39 Pospisil, Anthropology of
39 L. Pospisil, of Law York: Harper
Law (New York: Harper & Row,
Row, 1971).
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40 J.
40 J. Wigmore,
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(Tokyo; University
Japan {Tokyo;
Press, 1970).
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4 J.
41 .|. Dawson, History of
Dawson, History Lay Judges (Cambridge,
of Lay Mass.:: Harvard
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Harvard University Press,
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42 Haskins, Law
42 Haskins, Law and Authority.
and Authority.
43 S.
43 Burman and
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of Law York: Amdemic
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44 L. Rudolph
44 Rudolph and and S. Rudolph. The
S. Rudolph. Modernity of
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in
in India University of
(Chicago: University
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of Chicago Press, l967).
45
45 T. Hutchison,
Hutchison, ed.,ed., Africa and Law: Developing
and Law: Developing Legal
Legal Systems
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Com‑
monwealth
monwealth Nations (Madison: University of Wisconsin
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l968); H. Kuper and
and
L. Kuper, eds., African Law:
Kuper, eds., Law: Adaptation and Development. (Berkeley:
and Development. University
(Berkeley: University
of California Press, 1965).
Press, 1965).
46 “Civil War and
Gluckman, "Civil
46 M. Gluckman, and Theories of of Power Barotseland: African and
Power in Barotseland: and
Medieval Analogies,"
Medieval Analogies,” Yale Law Journal,
Yale Law Journal, 7272 (1963): 1515.
(1963): 1515.
47 S. Popkin, The
S. Popkin, RationalPeasant
The Rational Peasant (Berkeley: University of
(Berkeley: University Press, 1979).
of California Press, 1979).
48 E.
48 E. Currie, “Crimes without Criminals:
Currie, "Crimes Criminals: Witchcraft and and Its
Its Control Renaissance
Control in Renaissance
Europe,” Law
Europe," Law and and Society Review,
Review, 37 7.; E.
(1968): 7.;
37 (1968): Witchcraft,
Evans-Pdtchard, Witchcraft,
E. Evans-Pritchard,
Oracles and
Oracles and Magic
Magic among
among the Azande (Oxford: Clarendon Press,
(Oxford: Clarendon Press. 1937).
1937).
49 Llewellyn and
49 K. Llewellyn and E. Hoebel, The Cheyenne
E. Hoebel, Cheyenne WayWay (Norman: University of
(Norman: University of Oklahoma
Press, 1961
Press, 1961).
).
50 R. David
50 and J.
David and Brierly, Major
J. Brierly, Major Legal Systems in
LegalSystems World Today
in the World Today (London: Stevens
(London: Stevens
Sons, 1968).
& Sons, 1968).
51 E. Gruen,
51 E. Politics and
Roman Politics
Gruen, Roman Criminal Courts,
and the Criminal Courts. 149-78
¡ 4 9 ‐ 7 8 B.
B.C. (Cambridge,
C. (Cambridge,
Mass.: Harvard
Mass.: University Press,
Harvard University 1968).
Press, 1968).
52 M. Cappelletti,
52 Cappelletti, J. Merryman, and
.|. Merryman, and ]. Italian Legal
Perillo, The Italian
J. Perillo, Legal System
System (Stanford,
(Stanford,
Cal.: Stanford
Cal.: University Press,
Stanford University 1967).
Press, 1967).
53 Casper,
53 Criminal Justice.
Casper, American Criminal Justice.
54 B. Schwartz, French
54 B. French Administrative Law and Common Law World
and the Common World (New York:
(New York:
New
New York University
University Press,
Press, 1954), Letoumeur, ].
1954), M. Letourneur, J. Bauchet,
Bauchet, and and J. Meric, Le
J. Meric,
Conseil d'etat et
Conseil les Tribunaux aáninistratifs
et les administratifs (Paris: Armanel Colin,
(Paris: Arrnanel Colin, 1970).
1970).
Elliott, The Rise
55 W. Elliott,
55 Rise of Guardian Democracy:
of Guardian Democracy: The The Supreme Court 's Role
Supreme Court's Role in Voting
Voting
Rights Disputes. 1845-
Rights Disputes, 1969 (Cambridge,
1845‐1969 Harvard University
Mass.: Harvard
(Cambridge, Mass.: Press, 1974).
Umversrty Press, 1974).
56 M. Shapiro,
56 Supreme Court and
Shapiro, Supreme and Administrative Agencies (New Free Press,
York: Free
(New York: Press,
1968).
1968).

39
39
 COMPARATIVE
C O M PA R AT I V E AND
A N D INTERNATIONAL
I N T E R N AT I O N A L ISSUES
ISSUES

57
57 M. Chigier,
Chigier, "The
“The Rabbinical
Rabbinical Courts in the State of of Israel," Israel Law Review,
Israel,” Israel Review,
22 (1967):
(1967): 147: D. Lev, Islamic Courts
Lev, Islamic Indonesia (Berkeley:
Courts in Indonesia (Berkeley: University ofof Califomia
California
Press,
Press, 1972).
1972).
58
58 Wigmore,
Wigmore, Law Law andand Justice.
Justice.
59
59 W. Friedmann,
Friedmann, Legal Theory, 5th ed. (New York: Columbia University Press,
Lega! Theory, Press,
1967);
1967); A.A. von Mehren
Mehrenandand J.
.|. Gordley,
Gordley, The Civil
Civil Law
Law System (Boston: Little
System (Boston: Brown,
Little Brown,
1978).
1978).
60
60 See
See G.G. Schubert,
Schubert, The Judicial (Evanston, 111.:
Mind(Evanston,
Judicial Mind Northwestem Universtiy Press,
lll.: Northwestern Press,
1965).
1965).
61
61 Abraham,
Abraham, Judicial Process; Rene
Judicial Process; Rene David, French Law (Baton
David, French (Baton Rouge:
Rouge: University
Louisiana Press,
of Louisiana Press, 1972).
1972).
62 Llewellyn
62 Llewellyn andand Hoebel,
Hoebel, Cheyenne Way.
Cheyenne Way.
63 Even
63 Professor Dworkin
Even Professor indicates that courts announce new rules although
Dworkin indicates although
he would argue
he would deduce them from legal
argue they deduce principles which they discover by
legal principles
methods I do
methods do not understand. R.
not understand. Dworkin, Taking
R. Dworkin, Taking Rights
Rights Serious! y.
Seriously.
¡[39.7%l)orowitz,
64 D. Horowitz, Courts and and Social
Social Policy (Washington, D.C.:
Policy (Washington, D.C.: Brookings Institution,
Brookings Institution,
1977).
65 M. Landau,
65 “Redundancy, Rationality,
Landau, "Redundancy, and the Problem
Rationality. and Problem of of Duplication
Duplication andand
Overlap,” Public
Overlap," Review, 29
Public Administration Review, 346.
(l969): 346.
29 (1969):
66 Shapiro, Law
66 Shapiro, Law and Politics.
and Politics.
=-19.7%;mnann,
67 H. Comparative Legal
Ehrmann, Comparative Cultures (Englewood
Legal Cultures NJ .: Prentice-Hall,
Cliffs, N.J
(Englewood Cliffs, Prentice-Hall,
1976).

40