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The Courts

A COURT is the seat of judgment on the law. Questions of law come before the court in the form of contests or actions between two private parties or between private parties and the government of which the court forms part. In judging the law, the court decides the fate of the parties with interests at stake in the point of law at issue. This essential function of judging the law has not always been consigned to the kind of court that we know today. Legislatures, executives, and administrators have often declared that a particular act of a person was an offense and decreed punishment against the offender. But the law of a society has more frequently conceded this function to the specialized bodies that we call courts, and it is with these courts that this chapter is concerned.

As specialized parts of the apparatus of the state, the courts have usually acquired procedures and methods of thought distinguishing them from other political institutions. And their essential function of judgment, of course, always has an important influence on the political structure of a society. Sometimes the courts of a society have grown into the most powerful institutions, overshadowing other political institutions and making the juridical method of solving political disputes the characteristic mode of the culture. This chapter will call attention to several kinds of court systems, discuss the occasional triumph of courts over the other branches of the government as illustrated in the American doctrine of judicial review, and explain the ways in which courts carry out the judicial process.

The Rise and Power of Court Systems


In an earlier chapter on law and constitutionalism, law was defined, its sanctions were described, and various classes of law were presented. One should know that in many primitive communities the enforcement of "law" was and is left to individuals. Self-help-"taking the law into one's own hands"-was the way justice was enforced. But in complex communities self-help is outmoded.

However, there are still three areas of life in which Selfhelp is a lawful method of carrying out the "law." In international affairs, nations have accepted no superior authority that brings alleged offenders to trial and punishment. The United Nations machinery operates with some effect, but it has not produced a world legal order. Self-help is also authorized, although to a diminishing extent, in the field of labor relations: a union or an employer may institute economic reprisals such as strikes or lockouts for breaches of agreement or to establish a more powerful position with relation to the other party. And in the area of individual relations, one may administer the "law" himself in several ways. He may resort to force in self-defense; he may protect his property, personal or real, by force. He may pursue a thief and inflict on him whatever damage may be reasonable in order to recapture his possessions.


For the most part, however, in any complex social order that is not in the throes of revolution, the administration of justice has been consigned to special organs of the government. The study of the historical development of these special courts for the interpretation of the law is a fascinating phase of political science. They existed in the ancient Near East, in Greece, and elsewhere.

Two systems of law, the Roman and the English, have so greatly influenced the modern state that they deserve special mention. The Roman law developed over a thousand years; it provided the basis for canon or church law; it also strongly influenced the secular medieval law; and it was used by the early modern monarchies of western Europe to give a uniform law to their many local provinces. Ultimately, as reframed by French jurists into the Code Napoleon, Roman law came to form the core of legal systems in much of Europe, in South and Central America, and in many colonial areas of the world. We shall call those legal systems springing in large part from Roman jurisprudence "Roman law" systems.

The English system of law was able to develop continuously from native and Teutonic origins, despite periodic attempts to establish the Roman law in England. The English juridical system has provided the basis for the administration of justice in the United States and in the English-speaking countries abroad.


It is generally true that the Roman law is systematic, the English law unsystematic; the former is usually codified according to consistent and logical categories, whereas English law is a loose body of principles that are brought up individually in the solution of a single case. The English law has been identified particularly with the common law and with precedents established by the various courts; the Roman law has been developed to a far greater extent by scholars and legislators.

The use of precedent-the court's ruling in the last case that most closely resembles the case at issue-tends to determine the judgment of courts of the English type while it tends only to influence the judgment of a court of the Roman type. Judges in the English system are recruited from lawyers; they are not specially trained to be judges, as in the Roman system.

Courts of the English type give considerable privileges to the legal parties and in that way are less controlled by the judges than are the Roman law courts. (American courts are even more loosely managed than most of the courts of the English type.) While the student preparing for the English type of court gains most of his knowledge from law cases of the past, the student who aims to practice before Roman law courts concentrates more on codes, statutes, philosophy, and logic.


Some writers have exclaimed that the English law is barbaric, one step beyond the principle of self-help, while other writers have accused the Roman law of being the perfect tool of despotism, since it is so coldly logical and all-embracing. Both groups grossly exaggerate the grain of truth that may be involved in their own view. Although the Roman law, like the common law, claims to rest on the "will of the people," it is much more like a positive enactment, and jurists of Roman law countries are not likely to be so antagonistic to the work of the executive and legislative departments. Judges everywhere are in large measure conservative, whether they are in Roman or English courts; the different legal systems cause them to defend their conservatism with different philosophies and arguments.

The English type of court, especially in America, was independent for so long and came to rely so completely on a massive body of case precedents, that it was hostile to the legislative process. New statutes, it felt, could hardly improve the accumulated wisdom of the ages as embodied in thousands of cases judged by learned men. "Almost," writes Herman Finer, "the Common Law was born to resist; in the U. S. A. it was deliberately set above the Congress and Executive to resist; it still resists. That is precisely why it now meets with the favour of the groups who wish to be defended from the hand of the government." [1]

The use of juries to determine the facts of a case in a civil suit or criminal prosecution is found more generally in the English type of court than in the courts descended from Roman law. The grand jury, for bringing indictments that force cases to trial, is found in both English and Roman law countries.

These general differences just cited can be traced through many procedures and substantive statements of rights and duties. Perhaps the greatest hold that either system has on its supporters is that they are accustomed to it. Personalities and interests have grown adjusted to procedures and dogmas, advantageous or not from some other point of view, and both would be upset by attempts to graft other systems onto them.


Sometimes custom has established two types of law. For example, in the period following the barbarian invasions, tribal law was applied to the Germans, Roman law to the original inhabitants. Early German monarchs caused both the barbarian law and the Roman law to be drawn up, crudely, of course, until the great Code of Justinian was made generally available in the eleventh and twelfth centuries. The kings did this to prevent tribal law from being submerged into the Roman law and to prevent the knowledge of Roman law from disappearing. Courts existed in large numbers but means of enforcing their decisions were often wanting. A gentleman of the Middle Ages might become involved in Manorial Courts, Borough Courts, Pie-Powder Courts (commercial law), the Court Christian (canon or church law) or the King's Court. Roman Law was gradually introduced into the King's Court by the king's jurists and judges in preference to the customary law, as a means of systematizing and making secure the royal territorial jurisdiction. The Roman law, with its emphasis on the abstract rights of jurisdiction, the "imperial right," proved to be effective in squeezing out the elements in Teutonic tribal law that made jurisdiction personal, that is, each man being subject only to his tribal or provincial law, no matter where he happened to be.


What can be said in brief about the political effects of the two major legal systems, the Roman and the English? Both systems have developed in touch with each other for many centuries; both have changed considerably over the centuries; both have been employed in governments that might be called despotic or individualistic. While it is true that liberal America has used the English system, liberal Switzerland, Holland, Belgium, and Scandinavia have used the Roman system. Neither the English nor the Roman law could rescue prisoners from the Tower of London or the Bastille. One cannot subscribe to a glib division that would identify tyranny or liberty with a great legal system. The administration of justice, like the other general subjects of political science, is subjected to a great many social and political influences; none of these influences can be singled out as absolutely decisive. The two principal systems have undergone great change; they have greatly influenced each other; and they have been so much a prey to the whole political process, that distinctions between them with reference to such broad subjects as tyranny and liberty can hardly be made.


The tradition of independent and powerful judges is ancient. Certainly the Greeks and Romans had well-developed views on the subject of the impartiality of judges. The praetors and the senate of Rome were for several generations perhaps as systematic and impartial as the foremost judges that the world has known since. The Middle Ages did not lose the ideal of the integrity of justice, and, certainly, it was to some of the late medieval kings that modern times owes the beginning of a tradition of judicial impartiality. For these monarchs, bent upon tightening their controls over the local nobility and towns, called in many jurists to consolidate and expand the royal law. Central courts developed in France, in England, and elsewhere; they removed cases from local and inferior tribunals "on writ of error," and they heard cases over an increasing area of the law, passing judgment on them according to a new version of the law common to the whole realm.


In England, the strength of the courts did not cease to grow when the king became unchallenged master of his realm. The King's Bench, the highest English central court, came, under Edward Coke in the early seventeenth century, to claim independence of the king himself, and of the Parliament as well. Coke declared that the king was under the law. He also said that the common law, as declared by the courts, often "will control acts of Parliament." Here were strong beginnings of the theory of the separation of powers and of an independent judiciary.

When Montesquieu wrote of English government in the mid-eighteenth century, he emphasized that the judiciary in England was independent of the Crown and of Parliament, and urged the emulation of this example upon the continent. Principally because the age of liberalism and middle-class government was near at hand, and, not because Montesquieu urged the separation, European courts did acquire in the nineteenth century a considerable degree of independence of the executive and Parliament. Indefinite tenure upon good behavior came to be the common condition of appointment to judgeships.


At the top of the court hierarchy in England today, one finds the House of Lords, which hears some of the most important cases on appeal and a few special classes of cases as a court of original jurisdiction. Its judicial functions, one hastens to add, are not performed by the whole motley body of its members, but by a small, select group of judges who are appointed to the House to act in this capacity.

The cases heard by the Lords on appeal come from the Court of Criminal Appeals and the Court of Appeal for civil cases, which in turn hear cases appealed from the various divisions of the High Court of Justice. The High Court of Justice has general jurisdiction over a great variety of cases. Below it are found many county courts and justices of the peace.


The French court system is as independent and impartial as the English. The French judicial pyramid for criminal cases and suits involving private parties is formed by the Cour de Cassation, which hears appeals from Courts of Appeals, which in turn hear appeals from the various Tribunals of First Instance. The vast business of dealing with petty offenses begins and usually ends with the several thousand justices of the peace.

Unlike the English and American court systems, however, the French have a separate system of courts for trying civil cases to which the state is a party. A judicial panel of the Council of State is the highest authority on administrative law. It hears appeals of cases on administrative law from a number of Conseils de prefecture interdepartementauxregional councils handling the judicial business of one or more prefectures. The French system of coping with cases involving injuries to citizens by officials is thus simpler and more direct than the American system, which, as was indicated in Chapter 5, is scarcely a system at all. It is, rather, a network of special jurisdictions among a large number of agencies; and any court of general jurisdiction may decide cases on administrative law.


American governments provided both extremes of independence in the judiciary. More than any other country, the judiciary was separated from the other branches of government. This independence was written into all the constitutions. Moreover, the courts were empowered (partly, it is true, through their own efforts) to pass judgment on whether the acts of executives or legislatures were in accord with the constitutions. This was the power of judicial review.

A second current of politics, reaching peak strength a little later than the movement toward judicial review, brought most state court justices to the bar of popular election, so that although the justices could be independent of the executive and legislature, they had to pay attention to the shifting trends of public opinion. As the political party, with its control over masses of voters, developed, judges came to occupy places on party lists, just like other candidates for public offices. The courts came to be influenced by almost the same political considerations as other branches of government, although the tradition of "impartial justice" and the greater degree of professional organization among lawyers reduced somewhat the extent to which courts responded to political pressures and issues.

Judicial Review and the American Courts


Since American judges, whether elected or appointed with indefinite tenure, were given or allowed the right to strike down contested legislation if they deemed it unconstitutional, they became involved in political controversy continuously. There are some who believe that American courts were never meant to have this right of judicial review of legislation, but most historians of the early republic are agreed that the right was so close to acknowledgement that the final "seizure" of power was no more daring than a man's leap into the water when he is pushed from the diving board.


The immediate occasion for the leap was the case of Marbury v.Madison. This case is the cornerstone of the socalled judicial supremacy principle. By the right conferred on them as a result of the case, subsequent Supreme Court Justices have declared about a hundred federal laws and many more state laws (some 200 between 1865 and 1935 alone) void because they violated principles set forth in the federal Constitution.

The facts of the case are somewhat amusing. When the Federalists under Adams were defeated in the election of 1800 by Jefferson's party, they tried at the last minute to place some of their followers in the judicial branch of the government. They passed an act reorganizing and enlarging the judiciary and appointed a number of Federalists to the new positions. John Marshall had been Secretary of State under Adams and had just been appointed Chief Justice of the Supreme Court. In the confusion of changing offices and presidential administrations, he failed to deliver the commissions of these new judicial appointees to the persons designated. When Jefferson became President on March 4, 1801, he told Madison, who became his Secretary of State, not to deliver the commissions.

William Marbury, who had been one of those to be appointed, brought an action in the Supreme Court for a mandamus, a court order directing Madison to give Marbury his commission. The immediate issue was not important, for the new Jeffersonian Congress repealed the Federalist Judiciary Act of 1801, and that meant that Marbury, even if he had won his case, would not have been able to serve very long in his post. But the indirect effect of the case was of transcendent importance.

Marshall, speaking for the Court, declared that Marbury was entitled to his commission and that Madison had no right to withhold it. But thereupon Marshall discomfited his friends and wrote the whole Federalist opinion of the judicial power into law. He did this double trick by declaring that the Supreme Court had no right to force Madison to deliver to Marbury his commission, for, he said, the original jurisdiction of the Supreme Court is stated in the Constitution. Congress cannot add to that original jurisdiction. Therefore, the provision of the Judiciary Act of 1789, which had tried to place additional original jurisdiction in the Supreme Court to issue writs of mandamus was a violation of the Constitution and consequently invalid.

The whole incident was complicated. First of all, some men claim on the basis of historical research that the clause in the Judiciary Act did not attempt to expand the original jurisdiction of the Supreme Court. Secondly, even if it did try to do so, the clause might be upheld because the Constitution did not state explicitly that the Supreme Court shall have original jurisdiction in certain stated cases and in no other cases. The Constitution might have been read to state that "in at least the following cases," the Supreme Court shall have original jurisdiction.

On the other hand, colonial customs, debates in the Convention, the practice of the state courts, and the opinions of many leading thinkers of the time all indicate that the doctrine of judicial review of the constitutionality of statutes was generally held and considered right. It is probably true, then, that the courts were supposed to have the power to declare laws unconstitutional if the laws were found to violate the Constitution. So Marshall was able to state that the courts in exercising their judicial powers were duty-bound, by oath of the Constitution, to enforce only those statutes passed by Congress that were in harmony with the Constitution. Statutes must conform to the Constitution, which is the supreme law. Statutes deemed by the courts not to conform to the Constitution are not law and cannot be enforced. Very soon thereafter the Supreme Court also assumed the right to declare unconstitutional state laws that it believed to be inconsistent with the federal Constitution.


Great excitement arose over Marbury v. Madison and similar "usurpations" of political power by the American courts. The situation might have been dangerous to civil peace if the issue could have been driven home to the mass of Jeffersonians. But the fact that the Federalist, Marbury, had been denied his commission was a tangible victory, and often a tangible gain, no matter how slight, will nullify a great but abstract loss. Some important issues would have turned out differently in history if the Supreme Court had not taken upon itself this power to declare laws of Congress unconstitutional.

Justice Oliver Wendell Holmes wrote once: "I do not think the United States would come to an end if we lost our power to declare an act of Congress void. I do think the union would be imperiled if we could not make that declaration as to the laws of the several states." Yet this Olympian view would, if pursued to its ultimate, reduce a great many historical events to trivial importance. Passing judgments on the "importance" of events is an intense value itself. Certainly the statement, "Life is of no importance," is hotly contestable. While one may agree with Justice Holmes that the existence of the United States and the Union are desirable, one may also be quite concerned about the kind of United States and the kind of Union that exist.


Taking an "if" position, if judicial review had been absent, the following social conditions might have resulted. The states would probably be much more active in social and economic spheres (adverse court decisions voided much state legislation aimed at regulating labor, commerce, and industry). The states would differ from each other much more than they do (extremes of economic regulation and civil rights legislation have been tempered by court decisions). The national government would be much closer today to owning, operating, and regulating many industries (railroads, mines, warehouses, shipping, airlines, grain elevators, lumbering, food processing, and other industries have been regulated and, in a few instances, owned and operated by the national government, but the Supreme Court has caused the government to make such moves with caution and deference to private enterprise). The national government would be doing by itself many things that now are accomplished in cooperation with the states (co-operation, especially through grants-in-aid, has come about partly because of fear, warranted or unwarranted, of the Supreme Court).

The executive branch of the government and the administrative agencies would be stronger and more free to do many things in the name of efficiency (for example, adverse decisions of courts on measures to control business and commerce have often compelled roundabout administrative procedures to gain such control). The legislature would be more attuned to the major currents of public opinion on economic legislation, civil rights, and other matters (the Supreme Court has sometimes tempered the quickness of legislative response to popular moods). The legal profession would not have been so universal a feature of American politics, legislation, and administration (the prestige and power of the high courts have flowed over into social life generally). Many other historical alterations might have occurred if the doctrine of judicial review had not been the law of the land.

In short, the supreme courts of the states and nation have used their power to review legislation to form a great institutional blockade. Everything that passes through has been changed to some degree. By-passing the barrier has required shifts in administrative and political organization. And many strong and radical ideas have disappeared because of the blockade, or at least they have been modified and their attainment delayed.


The whole court system of the federal government arises from the constitutional clause that provides: "The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. The judges of both the Supreme and inferior courts shall hold their offices during good behavior and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office."

The Constitution makes no provision as to the number of judges, the amounts of their salaries, or the terms or sessions of the courts. All of these matters were left to the discretion of Congress. Only tradition may prevent Congress from making the Court one of five members, seven members, nine members, eleven or fifteen members-that is, whatever Congress thinks fitting.

The basic statutory definition of the federal court system has come down from the famous Judiciary Act of 1789. This act set up and organized the Supreme Court, providing a chief justice and five associate justices. Today there are nine justices. The act also set up circuit courts and district courts, and defined their respective jurisdictions. Today, the three types of constitutional courts still exist-the Supreme Court, the Circuit Court of Appeals and the District Courts of the United States, which are today the principal courts for the first trial of cases arising under the national Constitution, statutes, and treaties. Thus far, all judges and judicial officers have been appointed by the President with the advice and consent of the Senate. It would be possible, however, if the Congress thought it desirable, to vest the appointment of the justices of inferior courts in the Supreme Court.


Each of the fifty states has its own scheme of courts, organized under the state constitution and statutes. State courts range from justices of the peace and municipal courts up to supreme courts. Only a few judges throughout the state systems are not subject to popular election. Between the national and the state courts, separate and autonomous as they are, a considerable overlapping of jurisdiction exists. Some cases may be introduced originally either in state courts or in federal courts. The fact that a case is initiated in a state court originally does not mean that the party to the suit may not have the case transferred from a state court to a parallel or higher federal court if a constitutional or a federal issue is involved.

The Judicial Process


Wherever there are courts there is a judicial process, for the judicial process is simply a name for the procedures that are observed when any given court system hears and judges the cases before it. However, one country's judicial process may be quite different from another's. The way the judiciary operates in any given country is the most accurate index that we have of the state of constitutionalism in the country. The judicial process is determined by the basic conditions that determine constitutionalism; these conditions, as we know, consist of such matters as the degree to which the written constitution is actually observed, the degree to which political power and wealth are not monopolized, the extent to which the civilian power controls the armies, and so on. We certainly know something of the court system of a country, therefore, when we know the extent to which it maintains a constitutional order; conversely if we know only the judicial system of a country we can judge the degree of constitutionalism of that country.

The judicial process itself, like the party system or the legislatures or many other institutions we study in political science, is both an effect and a cause. Changes directly introduced into the judicial process affect the constitutional order sooner or later. How much of an effect such changes may have, of course, depends on the particular change. For example, the appointment of a single judge who decides cases on partisan and prejudiced grounds will have much less effect on the judicial process, and thence on the constitutional order, than the general abolition of the right of a defendant in a criminal case to have a lawyer in his defense.


Viewing the judicial process, therefore, as both cause and effect in relation to the larger constitutional order, we are interested in several components in the process that vary with different conditions, and, by so varying, are important both to the court system and to the larger problem of constitutionalism. These components are the importance of the case and the courts under consideration, the rights available to parties in the judicial process generally, the social and political pressures operating on the courts, the selection and personality of the judges, the kind of judicial argument used, and the degree to which there is belief in judicial neutrality and objectivity.


We may consider first, then, the effect which the importance of cases and courts has on judicial process. Litigation is heavy and the courts are diversified in the complex communities of today. Dr. Albert Lepawsky estimated that in 1931 the metropolitan area of Chicago, with somewhat less than five million inhabitants, presented the court system with some 738,000 cases. Five hundred and fifty-six courts shared this load of work. The materials for adjudication ranged from prosecutions for speeding to grave questions of the constitutionality of legislation.

The judicial process employed by a justice of the peace in a case of speeding cannot well be compared with the judicial process of a federal district court in its formality. Granted a constitutional order, such as exists in America, as the court is higher in the judicial hierarchy and as the cases coming before it involve important economic and social interests, the various and numerous elements of judicial process that are formal become more pronounced and evident. The importance of the law at issue and the anxious and powerful interests of the litigants combine to squeeze out any apparent intrusion of arbitrary, hasty, and partisan elements.


The judicial process available on the premises of a justice of the peace, many disconsolate victims of "speed traps" will attest, is a far cry from that available in the marble halls of a high court. However, in certain respects we may group together the two processes as well as the intervening judicial processes. Again granted a constitutional order, the very important directive of impartiality is everywhere stipulated, even though not always observed. The equally important provision of an adequate hearing is everywhere a possibility, although often not actually provided. The same basic constitutional and substantive rights are present, though not everywhere invoked or allowed. Many procedural rights are available, although very often not invited into the process. And, generally, where some right or procedure is not available in one court, it may be had by appeal to a superior tribunal. But since, generally speaking, the intensity of interest of the parties is what determines how replete a judicial process is desired, one finds the judicial process that philosophers write about and patriots sing about mostly in the trial and appellate courts of general jurisdiction. It was to the nobles of the realm that King John swore in the Magna Carta, "To no one will we sell, to no one will we refuse or delay right or justice."

Nor are the pressures operating on the judicial process qualitatively different on the different levels of the court hierarchy. A bad cup of coffee can affect the temper of a more august member of the judiciary as much as that of a justice of the peace, but, again, the actions of the former are likely, because of the importance of his work, to be hedged in by many restraining factors not present in the case of the J.P.


It has just been shown that the courts within a country vary in the fineness with which they apply due process of law, but that certain rights may be universally stipulated within a nation like the United States. Comparing the court systems of different nations also reveals differences in court procedures, and, one should note, even where two nations have similar court procedures that the two court systems may not possess the same independence and impartiality. Independence and impartiality are much more connected with the degree of constitutionalism in a country than they are with the written rules of procedure.

How nations can agree on what constitutes a fair trial may be shown by examining a trial conducted jointly by several nations. An example was the famous Nuremberg trials of Nazi leaders after World War II. The Charter of the International Military Tribunal for the trial was drawn by representatives of the United States, Great Britain, France, and the Soviet Union.

We are not concerned here with one part of the Charter, namely the statement of the "laws" that were alleged to exist and to have been violated. Whether they were "laws," of course, was the crux of the debate over the larger question of having the trial at all. Those who supported the trials held that the "laws" were widely known when the alleged criminal acts were performed. Others held that the "laws" were coined for the purposes of the trial and were not ethical directives enforced by a body of officials before the time of the alleged violation.

When we turn from this highly important debate to the matter of interest here, that is, the agreement on how a court should conduct a trial, we find a surprising conformity among the different national law systems. The system of procedures outlined for the guidance of the tribunal was not strikingly different from ordinary court procedure in America. It is worthwhile to quote Articles 16 and 24 in entirety.

IV. Fair Trial for Defendants

Article 16. In order to ensure fair trial for the defendants, the following procedure shall be followed:

(a) The Indictment shall include full particulars specifying in detail the charges against the defendants. A copy of the Indictment and of all the documents lodged with the Indictment, translated into a language which he understands, shall be furnished to the defendant at a reasonable time before the Trial.

(b) During any preliminary examination or trial of a defendant he shall have the right to give any explanation relevant to the charges made against him.

(c) A preliminary examination of a defendant and his trial shall be conducted in, or translated into, a language which the defendant understands.

(d) A defendant shall have the right to conduct his own defense before the Tribunal or to have the assistance of counsel.

(e) A defendent shall have the right through himself or through his counsel to present evidence at the Trial in support of his defense, and to cross-examine any witness called by the Prosecution.

V. Powers of .the Tribunal and Conduct of the Trial

Article 24. The proceedings at the Trial shall take the following course:

(a) The Indictment shall be read in court.

(b) The Tribunal shall ask each defendant whether he pleads "guilty" or "not guilty."

(c) The Prosecution shall make an opening statement.

(d) The Tribunal shall ask the Prosecution and the Defense what evidence (if any) they wish to submit to the Tribunal, and the Tribunal shall rule upon the admissibility of any such evidence.

(e) The witnesses for the Prosecution shall be examined and after that the witnesses for the Defense. Thereafter such rebutting evidence as may be held by the Tribunal to be admissible shall be called by either the Prosecution or the Defense.

(f) The Tribunal may put any question to any witness and to any defendant, at any time.

(g) The Prosecution and the Defense shall interrogate and may cross-examine any witnesses and any defendant who gives testimony.

(h) The Defense shall address the Court.

(i) The Prosecution shall address the Court.

(j) Each Defendant may make a statement to the Tribunal.

(k) The Tribunal shall deliver judgment and pronounce sentence.

Justice Robert H. Jackson of the United States Supreme Court, Chief of Counsel of the United States at the trials, explained the importance of the agreements on procedure in a report in 1947. He wrote:

The significance of the charter's procedural provisions is emphasized by the fact that they represent the first tried and successful effort by lawyers from nations having profoundly different legal systems, philosophies, and traditions to amalgamate their ideas of fair procedure so as to permit a joint inquiry of judicial character into criminal charges . . . .

While it obviously was indispensable to provide for an expeditious hearing of the issues, for prevention of all attempts at unreasonable delay and for elimination of every kind of irrelevancy, these necessary measures were balanced by other provisions which assured to the defendants the fundamentals of procedural "due process of law." Although this famous phrase of the American Constitution bears an occasionally unfamiliar implication abroad, the Continental countries joined us in enacting its essenceguaranties securing the defendants every reasonable opportunity to make a full and free defense. Thus the charter gives the defendant the right to counsel, to present evidence, and to cross-examine prosecution witnesses. It requires the indictment to include full particulars specifying the charges in detail-more fully than in our own practice. It gives the defendant the right to make any explanation relevant to the charge against him and to have all proceedings conducted in or translated into his own language.


Variations in the historical development of the court systems of the different nations help to account for the differences among those systems. Certainly the history of a particular nation's court system or of particular courts in that system influences the courts' work. A court system or court with a lengthy record of incorruptibility is not likely to become venal overnight, nor is a corrupt court likely to acquire quickly an impartial and competent character. Such extended clinical records, so to speak, remind us that courts are imbedded in a matrix of institutions that forms a culture. The administration of justice is not likely to be an island either of probity or deviltry in a sea of contrary conduct.

Another way of putting this would be to declare that the influence of bribes upon judges would equal roughly over an extended period of time the influence of money upon politicians. A class system that colors the wisdom of politicians and diplomats with tints of class privilege will probably affect similarly the personnel of the bench.


Influences more immediate than a court's tradition and class status sometimes affect the result of litigation. Threats of mob violence and other intense political and personal pressures cannot be shaken off easily by any court system. That such circumstances can bias a court's decision seems to be realized generally; almost all jurisdictions have procedures for transferring cases from one place to another to avoid intimidation, for changing the judges under the same conditions, and for converting the court proceedings from public hearings to closed ones. There are frequent examples of how political pressure can change a decision or relieve its severity. One may think readily of Franklin Roosevelt's proposal to increase the number of justices of the Supreme Court in order to get favorable majorities for his policies on the bench, and of how, without saying so in so many words, the Court adjusted its decisions on several cases to ward o$ the political assault.

One may recall also the many instances in which, for political reasons, pardons and leniency have been granted convicts, so as not to give cause for unruly demonstrations, or the many circumstances under which the judgments descending upon the rich and well-placed are somewhat less severe than those inflicted upon the poor and unconnected. Nor can .the logic of the law or of lawyers on the bench be excepted from that sociology of law that says: every man must watch his actions and thought to see that they are not impeded by his restricted knowledge, his acquaintances, his love of the old ways and hatred of the new.


The mode of. selection of judges, their tenure, their pay to a lesser extent-these conditions of the judiciary play a role in determining how the "law" shall be interpreted. A bench that has been elected by popular vote will tend to reflect opinions that control the public at a given time. The same sensitivity is unlikely to be felt by appointed judges of indefinite tenure; they will certainly reflect opinions that are in a sense political, but they will be the opinions of bygone days, or of certain minorities, or of a certain legal faculty in a university.


The personality structure of judges sometimes adds to the foregoing considerations another problem. Certain judges are known to have reasonable judicial habits except for some distortion in certain spheres. Minnesota lawyers will tell of one judge who is very biased for the defendant in hearing trials involving crimes of passion. Another judge, in Chicago, is most severe towards parties who seek a divorce. One Minneapolis judge will punish reckless drivers severely; another will punish them lightly; the "law" depends on which judge hears the case. Lasswell writes of the involved personal history of a judge who is ever so gentle with women who appear before his court. And Supreme Court Justice Frank Murphy could be expected to decide against any infringement of civil liberties whatsoever.

As Lasswell points out, these anomalies in the judgments of particular men do not always represent a superficial fallacy; their meaning may lie deep in the personality of the judge, not to be rooted out by mere exposure. The compulsive type of personality is not rare among judges and administrators; this is the characterological bent that causes a man to cling to a rigid formula for deciding all human affairs, or to employ one steadfast interpretation of a constitutional phrase in the face of all mitigating circumstances, or to insist on applying the "letter of the law."

A mediating type may also be found among many judges and politicians; this type tends to seek, in arriving at a decision, not "what the law is" but "what would make both parties least unhappy." Or exhibitionists are to be seen on the bench as they are everywhere else: men who like to perform before an audience and monopolize the stage, and who award what they can to the best listeners and the most appreciative claque.


In the actual process of law, judicial logic itself, then, is modified by the human reactions of the judge, who himself is a part of a historical and cultural environment that operates through him, the court officials, and the clients of the court. Moreover, judicial logic is often frustrated by its own nature. A case before the court, like a social fact of any kind, has many meanings and can be viewed in different ways. Courts do not "solve" a case by putting it in the legal category in which the case naturally fits. They have to force the case to fit into a relatively closed category. Social science and legal logic cannot describe any class of events such as "homicide," "the general welfare," or "interstate commerce," so exactly as to make it possible to neglect the individuality of the case at hand. No real case can be exactly fitted into one of those general categories of which the law is composed.


The legal mind, working at its best, without the intrusion of any motives but the stipulated motive of impartiality, can only partially relate most of the essential facts of a given case to the relevant meaning of the general principle of law that relates to the case. For example, consider an incident in which the elevator operators of a building, used completely by a firm engaged in interstate commerce, demand recognition of their union under the national labor relations laws. The issue is whether such workers perform tasks that affect interstate commerce. They work entirely within one state. The judge may decide that since their employers engage in interstate commerce, these employees affect interstate commerce, or the judge may decide that because they are employed within the state the employees do not affect interstate commerce. Decisions in two similar cases of this general type were contrary and show that the judges were influenced by all the social facts in each case that described the exact situation of the workers' environment. In our example, whichever way the judges decided to move, they would change the meaning of the words "interstate commerce," as those words are given in the Constitution or in the statutes. As it happened, the court broadened the idea of interstate commerce with one decision, hedged it a bit in another, and ended up slightly on the "progressive side." That is, more workers were included under the congressional enactment than before. No logical ingenuity could have deduced exactly the court's conclusion, no matter what the conclusion was, from some general statement of "legal principle."


Conditions like the foregoing, abounding in the judicial profession, have produced a feeling of hopelessness among those who see the law only as stringent logic. Apparently the law does not exist before the case is decided. The fate of the dearest wishes of the contestants before the court cannot possibly be predetermined by logic but is determined by the court's decision. As Justice Holmes once wrote: "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." He goes on to say that "the notion that the only force at work in the development of the law is logic" is fallacious. All the forces that play upon the court system and the judges, then, including the exercise of legal logic, are the law.

Now, if we compare this idea of the law with the more extended definition that we gave earlier in this book (p. 38), we find a difference, and we can best avoid argument by saying that what Justice Holmes is talking about is the "court law." Court law is what the courts will decide. And to predict what the courts will decide is, like every other prediction of social science, difficult, probable at best, and capable of being studied by a number of different techniques, of which only one is the tracing of the habitual logic of jurists in other cases and estimating how that logic will be applied in this case. The "case study method," so popular in American law schools, does not adequately train students for court law" or in law.


A final very important point must be made. To say that so far as the interests immediately affected are concerned, the "law" is only a probable prediction of what the courts will decide may invite another fallacy. Because a number of factors shape the final judgment, and because the law cannot be known before it is declared does not mean that there are "no rules to the law" or "no justice in the world." Many people, greatly disillusioned upon encountering for the first time this fact about law (in terms of which all clearheaded lawyers operate), flee from a belief in a mysterious logic of the law to an equally fallacious disbelief in the motives of all courts. They take up positions that court judgments are pure whimsey, or are pure politics, or, as Marx and Engels put it in the Communist Manifesto, "Your jurisprudence is but the will of your class made into a law for all." They are quite wrong.


The very modesty, the very naïveté of the courts that try not to be and claim not to be political should be accepted as evidence that there is an element in "law" that is not political, an element that is not venal. No court can refrain from making law, if only a little law, but the court that makes only a "little law" is a political institution that is quite distinct from the court that operates as the active supporter of a political regime or the active servitor of rich clients.

The hypocrisy, to put it bluntly, of acting as if a law exists while knowing that it is being made, is one of the most useful inventions of mankind. It has proven historically to be the essential feature in establishing a rule of law and of juridical defense. It has moderated the acts of courts and made them much more than the puppets of political factions. Without this fiction, this enormously useful contradiction, one may wander into the camp of the one-time Nazi Commissar for the Reorganization of German Jurisprudence, who declared in a speech before the German jurists:

The maxim, "Right is whatever profits a nation; wrong is whatever harms it," marked the beginning of our legal work . . . . Pale phantoms of objective justice do not exist for us any more. We have only one aim: to prevent for all the future every subversion of our ideals and every class delusion.

The various communist governments of eastern Europe also hold "pale phantoms" in contempt. In the Soviet Union itself, according to Harold J. Berman, "Party directives may tell judges to `intensify the struggle against thefts in the factories,' or to make examples of managers who have tampered with the books, or to bear down on some other activity which the Party is seeking to `liquidate.' In addition, legislation may be enacted without difficulty or delay. As a result, case law loses something of its importance, and historical growth is swamped under by rapid shifts in policy." The courts are expected to reflect the sentiments of the regime on all cases believed by the regime to possess political implications. In one after another of the countries in which the communists assumed control after World War II, People's Tribunals were set up. These courts were specifically designated as instruments of the revolution and were directed to subordinate the judicial process to the grander purpose of carrying out the laws of the government with the greatest efficiency. Thus could realism-wrenched from its proper moorings in science-batter idealism and crush it, and, in destroying it, undercut judicial independence and objectivity.

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