The articles under this heading deal with judicial institutions and processes. Closely related are Adjudicationand Judiciary. A detailed guide to further topics will be found under LAW.
I. IntroductionJ. W. Peltason
II. Comparative AspectsMax Gluckman
III. Judicial AdministrationDelmal Karlen
IV. Judicial ReviewJoseph Tanenhaus
The judicial process is a set of interrelated procedures and roles for deciding disputes by an authoritative person or persons whose decisions are regularly obeyed. The disputes are to be decided according to a previously agreed upon set of procedures and in conformity with prescribed rules. As an incident, or consequence, of their dispute-deciding function, those who decide make authoritative statements of how the rules are to be applied, and these statements have a prospective generalized impact on the behavior of many besides the immediate parties to the dispute. Hence the judicial process is both a means of resolving disputes between identifiable and specified persons and a process for making public policies.
Development of the concept
For centuries hundreds of writers in thousands of articles and books have tried to determine what is the essence of the judicial or adjudicatory process, what distinguishes it from the legislative and administrative processes. During the last several centuries this exercise in political taxonomy has taken on special urgency and normative concerns. For under the doctrine of separation of powers it became improper for legislatures to engage in the judicial process—issuance of bills of attainder, for example—or for judges to assume functions that are thought to be within the scope of the legislative process.
The classic doctrine of separation of powers divided the world of political activity into the three familiar divisions based both on what was thought to be the behavior of political actors and on what were thought to be the requirements for the maintenance of liberty. The judiciary was assigned the function of applying the laws that the constitution makers and the legislatures had created and that the administrators enforced.
Today political analysts have abandoned these categories in favor of a continuum. At one pole is the legislative process for making law (formulating norms) and at the other the administrative and judicial processes for administration or applying the law (individualizing the norm). (These categories are analytic, and the activities are not necessarily performed by agencies with corresponding labels.) As to the distinction between the administrative and judicial, some writers—such as Hans Kelsen and Otto Kirchheimer—insist that these processes cannot be distinguished functionally and that it is more or less a historical accident whether some disputes are assigned to what are known as courts whereas others are assigned to what are known as administrative agencies. Others, such as Roscoe Pound, insist that the difference grows out of the fact that administrators are not obliged to make their decisions by following prescribed procedures or in accord with legal doctrines. Administration is seen by these writers as power and discretion, whereas adjudication is rational and controlled. The dispute here is but a facet of an ever-recurring discussion to which we will return later.
The orthodox theory
According to what is variously called the “mechanical,” “slot-machine,” “photographic,” “formalistic,” “conceptual,” or “orthodox” theory of the judicial process, judges, like doctors or scientists, are trained technicians who apply their specialized knowledge to discover answers to legal disputes. Judging is to be sharply distinguished from politics. Political forces determine what the rules are; the judge merely applies the given rules to the facts. If the judges come across a novel situation for which there is no agreed upon rule, by a process of analogy and logic they discover what rule should be applied; to this extent, and to this extent only, they may be said to create rules. Some commentators have even gone further: to them the judicial process is a self-contained world with its own dynamics and is totally divorced from the political system. And even those who recognize that legal rules and judicial decisions are related to the political community insist that the judges and the law they apply are neutral among competing interests within the community. The judge is a spokesman for the more enduring values of the society, not merely the wishes of those who are for the moment governing it. As the noted English barrister Sir Carleton Kemp Allen phrased it:
Our law has had its political vicissitudes, and at certain periods of its history it has been threatened with degradation into an instrument of government; it might, indeed, have suffered that dismal fate but for the resistance of men like Sir Edward Coke. But today there is nothing more repellent to Anglo-Saxon legal instinct than the corruption of law by political “ideology.” (Allen  1964, p. 56)
The realists’ criticism
This formalistic conception of the judicial process has always been questioned. But beginning toward the end of the last century, and with great zeal in this century, there has been a mounting criticism of it. The attack has come from many sources and from many different writers. The skeptics represent a wide variety of different kinds of analyses, many of which contradict one another, and it is difficult to present the skeptics’ views as a consistent whole. They are often grouped together under the label of “legal realists,” although at times this appellation is reserved for a smaller number of American writers of the 1920s and 1930s. Using the term “realists” in its broadest sense to include all who are skeptical of the traditional analysis, we might mention three of the major assertions:
(1) Legal rules do not determine judicial decisions. “The theory that rules decide cases seems for a century to have fooled, not only library-ridden recluses, but judges” (Llewellyn 1934, p. 7). “[The] half explanatory, half apologetic reference to the judge’s subservience to the law is at best a playful protective device; at worst it testifies to his unwillingness to understand his own role in the social process” (Kirchheimer 1961, p. 187).
The point here—and about it there remains much confusion—is not that there are no legal rules or that there is always uncertainty as to what the law requires. The skepticism relates to the extent to which rules determine judicial decisions. There are rules, for example, conferring jurisdiction on courts and making their decisions authoritative. Clearly understood laws govern the great bulk of human transactions; most men know what they must do if they wish the contracts they make to be valid and enforceable by courts. Most legal conflicts do not give rise to litigation, since the law provides relatively precise answers to most questions without the necessity of bringing the matter before a judge. Furthermore, often the judge is not asked which rule should be applied but what happened, that is, to determine who did what to whom. And in other instances, especially at the trial level, the judge’s function is to legitimize a transaction by applying a rule about which there is no dispute. No judge is likely to make a decision in such a case contrary to the widely accepted rule; if he did so his decision would not long survive, and he would be unmasked as an incompetent. In this sense he has no discretion, and the rule does provide a guideline.
However, when a judge must resolve a conflict and there is a dispute as to which rule should be applied, the traditional explanation of the judicial process is misleading. According to this explanation judges look to past precedents or to constitutions, statutes, or codes and find the proper rule to resolve the dispute. But there are conflicting precedents and an infinite variety of factual situations to which the uncertain precedents can apply. Nor do constitutions, statutes, and codes provide certain guidelines. “Much of the jurisprudence of this century has consisted of the progressive realization (and sometimes the exaggeration) of the important fact that the distinction between the uncertainties of communication by authoritative example (precedent), and the certainties of communication by authoritative general language (legislation) is far less firm than this naive contrast suggests” (Hart 1961, p. 123).
(2) The formal theory of interpretation and the fiction of legislative intent are methods of “paying lip service to the prevailing myth of statutory interpretation and to the equally mythical notion that judicial legislation is both unconstitutional and improper… Attempts to hide that fact [of the creative function of statutory interpretation] behind a cloak of verbiage are fatuous at best. And the judicial creative activity applies, to some degree at least, to all statutes” (Miller 1956, p. 34).
Judges do and must make law. But this is not to say that when judges make law they are acting improperly, for such lawmaking is inherent in their function. A judge may be neutral between the parties to a lawsuit and dedicated to the principles of his craft, but he must choose; and the difference between one judge’s choice and another’s does not stem from any difference in their technical knowledge of the law, but from their differing response to the conflicting values which the case presents.
To recognize that judges make law is not to conclude that they are “free” to make any laws they wish; and while one strand of the realist ferment emphasizes the choice-making, creative role of the judge, another searches for the variables that condition and restrict that choice.
(3) The decisions are not personal choices of the judges, accidental, arbitrary, or divorced from the rest of the political system. Although some American realists of the 1930s seemed to suggest that judicial rulings were determined by the personality traits of the jurists—which some wag labeled the “breakfast-food theory” of jurisprudence—most writers have concluded that to add personality to precedent does not substantially advance our understanding of the judicial process.
Statutory directions, traditional procedures, the demands of the judicial role, and the organizational and political connections between the judicial process and the political system set limits to and give a direction to judicial decision making.
Underlying much of the work of the realists is the view that since judges must inevitably choose between competing values, awareness of the fact that they are making such choices, some knowledge on which to base these choices, and concern for the social consequences of the choice are desirable.
During the 1920s and the 1930s the American legal realists emphasized empiricism and attacked formal legal concepts, and they made what seemed to be sharp distinctions between the “is” and the “ought.” But there was no agreement among them whether judicial or any other values could be established by objectively demonstrable standards. A relativist position toward value questions did not— and does not—necessarily follow from a realist analysis of the judicial process, although many critics of realism have so charged. It is true that many realists, especially those writing prior to World War II, were skeptical that judges were any better equipped than legislators or administrators to determine these value questions. And they felt that many judges had too simple-minded a conviction that they had some special insight into justice.
The realist “ferment” of the 1920s and 1930s had important political consequences, especially in the United States. At the time American, English, and Canadian judges were striking down or restricting the scope of social welfare legislation, were generally hostile to positive government relating to economic matters, and were not particularly zealous in protecting civil liberties. The judges looked askance upon administrative agencies and wherever possible insisted that decisions of administrators be subject to review by judges.
During the 1920s and 1930s realists were critical of the particular policy choices the judges were then making. Legal realism became a tool to attack judicial decisions and to reduce the role of the judges. Within the context of the realist analysis the statement that the judges were making policy did not necessarily carry any critical content for, as realism taught, such policy making is inherent in the judicial process. But the “‘forward-looking scholar” (who was most likely to be abreast of the thinking in the neighboring discipline) found grist aplenty in the current product of the appellate courts to disapprove and to ‘show up’ as being by no means inherent in the scheme of our law” (Llewellyn 1960, p. 13). Realism tore off the mask of detachment behind which judges, consciously or more likely without understanding what they were doing, manipulated legal symbols in behalf of their own limited concepts of the public interest. And in addition to furnishing ammunition with which to attack the laissez-faire judicial decision in the 1930s, realism had strong overtones critical of judicial restraints on political and legislative majorities. Not surprisingly, liberals tended toward a realist evaluation of the judicial process, to favor restrictions on the scope of judicial authority, and to be critical of the courts as policy instruments.
On the other side conservatives not surprisingly used the orthodox explanations of the judicial process to defend the restrictive judicial rulings, to urge judicial control of legislative and administrative agencies, and to stress the desirability of judicial checks on popularly elected and politically accountable decision makers. Although conceding that some judges might act improperly and permit their own political predispositions to influence their rulings, the conservatives contended that these were exceptions. Proper judges merely applied the law as given to them by the constitution, the legislatures, or past judicial decisions. The judicial decisions under attack, they argued, were not to be considered either as conservative or liberal, either proemployer or antiworker, but in accord with eternal verities. And, the conservatives argued, to suggest that judicial decisions reflected the judges own economic and social views was dangerously misleading, destroyed public confidence in the courts, and undermined the concept of an independent nonpolitical judiciary.
The post-1945 period. By the end of World War II these attitudes toward the judicial process began to alter. Within the democratic nations, especially the United States and England, judges— many of whom had been educated in the period of the realist ferment—were now supporting govern-mental regulation of the economy and at the same time protecting civil liberties. At least in the United States, this alteration in the stance of the federal judges seemed to be based on political factors making it probable that this liberal tone would have stability. For the first time in American history conservatives, who now had a louder voice within legislative chambers than they had within judicial halls, were raising doubts about the desirability of judicial restraints on legislators and administrators. Still clinging to the concepts of mechanical jurisprudence, the conservatives charged that the judges were making decisions based on “sociology” and not on law. On the other side, liberals began to repudiate some of the conclusions drawn from realism and, building on more orthodox explanations of the judicial process, to defend judicial review as a device to protect and keep open the democratic processes. In 1960 the major leader of the realist ferment wrote, “jurisprudence [in the 1930s] promptly became a football of politics, study of the courts’ processes of deciding was suddenly taken as an attack on decency of the court’s operation, issues were distorted, energies were wasted.
. . . One looks around, after war and foreign danger have sweated some of this silliness out of us, and sees a vastly different scene… The danger lies now in altogether different quarters” (Llewellyn 1960, pp. 14–15). The danger now is that men will lose confidence in their judges, thinking that they operate without regard to generalizable standards.
A group of scholars for whom there is as yet no label but who may be called the “neo-orthodox” have redirected attention not to how the judicial process is like the legislative but to how it differs. The whole purpose of the judicial process, they argue, is to permit knowledge and argument to lead to a reasoned decision. To reduce the analysis of the judicial process to the same terms that are used to describe the legislative process is to strip the judicial of what distinguishes it from the other ways to order human affairs. Although it is not to be assumed that judges are superhuman logicians or even that their decisions always are the deductive application of legal rules, nonetheless their decisions are products of a different set of conditions than are those of political actors who are directly accountable to political majorities and who are assigned different tasks and different roles.
Some skeptics of the orthodox ideology concede that the judges sometimes do make value choices and that the law does not necessarily determine their behavior. Nonetheless, they argue, the policy-making activity of the judges is an exception to the general course of judicial business and stems primarily from giving judges the power of judicial review.
Whether a synthesis between the realist and formalist concepts of the judicial process will result and whether such a synthesis will provide a better tool for understanding the dynamics of the judicial process is yet to be determined. As it stands, in the world of scholarship the formalist view has been modified, and the statement of the realist position is no longer so shrill. Among sophisticates the orthodox explanations of judicial behavior are no longer in good standing. On the other hand, there is no longer much shock value in pointing out that the judges are men and like all men are subject to limited perspectives. Few scholars now deny that the judicial process operates within and is conditioned by the political system and that judges make policy, but because of their adjudicatory function they make policy in special ways. Outside the world of scholarship, the orthodox position still holds. The prevailing expectations still require judges to state their decisions as controlled by statutes or precedents, and the official explanation of public men and practicing lawyers remains that the law is independent of the judges and controls their behavior.
Organization of the judicial process
The organization of the judicial process is determined by its purpose: to adjudicate particular kinds of disputes. (There must be a conflict between parties presenting the judges with a “yea” or “nay” choice.) By definition, among the factors that distinguish adjudication from the other techniques of dispute deciding—bargaining, electioneering, voting, fighting—is that each side in the conflict is entitled to be heard by an outsider to the dispute who is to make his decision solely on the evidence presented to him and in accord with a standard of right and wrong.
In democratic societies adjudication is based on an entirely different set of expectations than those that underlie the legislative or executive functions. What the majority wishes is what the legislators should decide. But adjudication calls for decisions in accord with standards of right, to be made by persons who are free to apply these standards without concern for the popularity of their decisions. Adjudication rests on the conviction that some kinds of differences are best resolved by an appeal to a specially qualified elite.
Based on these expectations and in accord with its defined function, the judicial process is deliberately organized to “disconnect” it from the rest of the community. The judicial system ordinarily does not have direct lines of accountability to the political authorities. (In some American states where judges are elected for short terms obviously this is not so.) This independence of the judicial system from the community is based on the need for dispute deciders who are not subject to outside instructions or coercion. Both realist and orthodox analyses support this independence in order that those who come before the judges may have a hearing by a tribunal free to make a decision on the basis of the evidence and arguments presented to it. The orthodox ideology has the additional ad vantage of squaring this judicial independence with the principles of democratic politics, for portraying the judges as technicians who do not participate in the resolution of policy conflicts makes it unnecessary to hold them politically accountable.
Selection procedures and tenure arrangements vary from nation to nation, but their design is to reduce considerations of partisan politics and to maximize attention to professional qualifications. Although lay participation still survives in the form of jury and lay judges, the definition of the “best qualified” now carries the expectation that the judges will be men trained in law. As early as the seventeenth century the celebrated Lord Coke told King James that since he lacked knowledge of the “artificial reason and judgment of the law” even the king was not entitled to decide cases but must act through his law-trained officers. Nowadays the legal profession has much to say as to who among them shall be selected as a judge, even if the actual selection process vests the final choice in political authorities. (The Supreme Court of the United States is to a considerable extent an exception in that the president exercises something like a personal prerogative in choosing justices for this Court.) Once selected, judges are expected to perform in accordance with professional standards, and they are measured by these standards: judges are members of a distinctive professional group who look to that group for their prestige.
More important than the formal constitutional and institutional arrangements in disconnecting the judicial from the rest of the political system are the factors growing from the judicial role. This role conditions and restricts the way the judges should behave and limits how others should behave in their relations with the judges. Once appointed to the bench a judge is expected to withdraw from active partisanship, to refrain from taking public positions on controversial issues, and to conduct himself so that there can be no suggestion that his official behavior is in any way influenced by his own personal concerns or attachments. His role makes it improper for any groups to make out-of-courtroom contacts or to use any of the normal methods of influencing political decision makers. To do so is not only improper but in many instances illegal.
The “disconnectedness” of the judicial process from the political system, however, is only relative. Changes in the rest of the system affect the nature of the decisions that will be made. Like all who make decisions affecting the fate and fortunes of the community, judges exercise their discretion not only within the confines of the requirements of the judicial process itself but within the context of the political system of which it is a part. What distinguishes judicial from other kinds of political actors is not that the judges are outside the system but that they are related to it in a different fashion than are the other decision makers.
Courtroom access and judicial scope
Since judges are expected to approach each case with an open mind, in all nations they lack authority to initiate proceedings for if permitted to do so, it is felt, they would be compelled to pre-judge the case. “It is the fact that such application [of person claiming rights] must be made to him, which distinguishes a judge from an administrative officer” (Gray  1963, p. 114). Of greater significance, however, than the fact that the judges may not start lawsuits is the fact that an ordinary individual through a regular lawsuit may raise fundamental questions of public policy. Whereas only those with some political strength may command legislative attention, a single individual may compel a judge to make a ruling. The litigant may be concerned only with his own problems: to secure ownership of a piece of property, to dissolve a marriage contract, or to stay out of prison; but the decision he secures will create or confirm a rule that governs the behavior of many persons other than himself.
In the Anglo–American nations there are no distinctions between courts created to adjudicate disputes and those established to hear conflicts involving questions of “high politics.” The higher appellate courts, however, operate under rules specifying that they are not to hear cases merely to do justice between litigants but only where the public interest is paramount. Nonetheless, they are organized like and function as ordinary law courts. Civil law nations do attempt to distinguish more sharply between courts created to adjudicate lawsuits and those established to deal with questions of more general public significance. In the German Federal Republic and in Italy, for example, special courts deal with constitutional questions. Their jurisdiction does not depend on the ordinary litigant but may be invoked by public authorities. In France a separate court system deals with disputes between citizens and administrative officials.
There are limits to courtroom access. Generally speaking, only those who are able to persuade the judges that they are personally and directly involved in a dispute may seek a judicial resolution of it, and there are some kinds of disputes judges will not attempt to decide. The technical rules and rationalizations to distinguish between “justiciable” and “nonjusticiable” issues vary from nation to nation and time to time. The widest range of subjects are dealt with by courts in nations such as the United States, Australia, and Canada, where the constitution is a legal as well as a political document, that is, a document subject to construction by judges. In the United States judges have the broad jurisdiction characteristic of the commonlaw countries, plus the authority to treat the constitution as a legal instrument. The Supreme Court of the United States has been squarely in the middle of almost every major political conflict that has arisen within the American republic. But even in the United States the judicial process has played a minor role in some areas: conflicts over control of the machinery of government; price policies for the distribution of goods and services; and the whole area of American relations with foreign nations.
Civil law nations attempt to restrict the impact of decisions to the immediate cases, and except in a few nations—and here only since World War II —constitutional documents are not considered to be subject to judicial construction. The French judiciary, for example, has never been the pivot for any major political interest. It is impossible to cite a single judicial ruling that has had a substantial impact on the political life of that nation, which is all the more remarkable in view of the highly divisive nature of French politics.
Litigation as a device for making policy depends upon the ability to formulate a lawsuit that presents judges with a yea or nay choice. However, for some issues a day in court is easier to secure than a day before the legislature. The “chips” for winning the judicial “game” are different from those for winning the legislative “game,” since judges are related to the political community in a different fashion than are legislators. Groups who lack electoral strength may, therefore, find it more profitable to resort to litigation than to legislation. However, without some political strength in the community, major alterations of public policy through litigation are as unlikely as through legislation. For the chance of securing favorable judicial rulings is not unrelated to the political configurations of the community. Unpopular minorities whose activities have been restricted by legislation seldom have more success before the courts than they have had before the legislature. Yet in many nations because of such factors as federalism, bicameralism, election district geography, rules of debate in the legislature, and so on, even relatively widely supported values may not secure legislative expression. The judicial process thus provides a forum for raising issues in a different context from the one provided by legislative or executive decision makers.
The formal requirements
By definition adjudication is distinguished from other techniques of dispute deciding in that it calls for the open presentation of evidence and reasoned argument before impartial judges who are to make their decisions in accord with the evidence and arguments presented to them and in accord with established standards. Courts exist to settle lawsuits, and this function imposes certain requirements on judicial procedures. Whether these requirements accurately describe how judges behave is for the moment irrelevant, for they have a significance divorced from consideration of whether they are descriptively accurate.
Judicial decisions are expected to be based only on the information formally fed into the system. In contrast legislators and administrators (except when they are expected to perform as judges) may secure information whenever and however they please, may contact rival claimants in private, and are under no obligation to give each claimant an opportunity to respond to the other side. Judges, however, are forbidden to discuss a case or to gather evidence outside the formal proceedings. Although in the misleadingly named “inquisitorial system” of civil-law countries, judges have somewhat more leeway in making independent investigations, they too operate under narrowly prescribed procedures designed to exclude from consideration any facts or arguments except those which the participants have presented in formal proceedings. (The doctrine of “judicial notice” provides an exception. Judges are permitted to make rulings in light of knowledge that is so widely known and acceptable that it may be taken into account without being formally presented to them.)
Perhaps the most important single formal requirement is that judicial decisions be based on reason. All decision makers are expected to act on the basis of the best available knowledge and to make decisions that conform to the rules of logic and rationality. But no other political actors are expected to perform solely in terms of reasoned argument. The legislative process provides for an infusion of knowledge and argument into the proceedings, and the legislator’s decisions are not without supporting reasons; but the ultimate outcomes are without apology recognized as determined by political power. They are better explained as part of the political situation. Few expect that any series of legislative or administrative decisions enacted over a course of time will form an in ternally consistent series of logically interrelated policies, but this is precisely what is expected from the judicial process. Judges are required to phrase their decisions and explain them in a technical language that conceals any subjective elements. Their decisions must be justified as the single right answer, required by precedent or statutory command, and consistent with the whole corpus of the law.
Students of the legislative process have not thought it profitable to analyze debates on the floor of the chamber in order to account for the legislative decision. They assume that most of the significant data is the behavior that takes place outside the formal proceedings. In contrast, and in response to the formal model, the main staples of research concerning the judiciary are the evidence presented, the arguments before the courts, and the judge’s formally stated reasons for his decision. The judicial decision is approached as a product of a controlled debating contest.
Recognizing that to focus on each decision isolated from its political situation, and with awareness that judicial decisions do not depart too far from the configuration of political power with the community, scholars have started to look at other materials and to develop models for analysis other than the traditional debating society framework. Nonetheless, they cannot ignore the fact that the judicial process is deliberately created and specifically designed to reduce the impact of political forces and to maximize evidence and reasoned choice. And the freedom of the judge from direct political accountability and the expectation that he will base his decision on arguments presented to him help to explain why the same individual will behave differently and support different values as a judge than as a legislator. The judicial process does make it possible for interests that lack large numbers of votes or controlling legislative representation to win favorable decisions.
The requirement that the judge base his decision on evidence and reasoned argument shades into the requirement that he be impartial. Again, other political decision makers are also expected to be impartial—it is contrary to the mores for a legislator or an executive to participate in decisions where he has an immediate financial stake in their outcome—but again the standards of impartiality required for judges are of a different order.
Judicial impartiality between the immediate parties to a lawsuit is obviously required if the judges are to be able to function as outsiders to the dispute. If a judge is under obligation to one of the parties or if he shares the fate of one of the litigants, he clearly cannot be dispassionate and neutral. This kind of impartiality is easy to achieve. At the next level of impartiality, although a judge may share some of the characteristics of one of the disputants—they both may be white southerners or both may be from the middle class—the judge is obliged to make a decision uninfluenced by such factors. Since judges are recruited from among the educated members of the community and are likely to be from among the dominant social classes, and since they ordinarily are not directly accountable to the electorate, the impact of the class structure upon the judicial system cannot be ignored. Whether judges do permit factors of personal bias, prejudice, or subconscious predispositions to influence their rulings is an empirical question, but that they will not do so is the working assumption of all established judicial systems in the free nations. And in an open society it is generally easy to secure agreement that judges have met these requirements of fairness and have made their decisions uninfluenced by personal, partisan, or class considerations.
There is no difference between the realist and orthodox analysis with respect to the desirability and possibility of securing judicial impartiality in the sense of neutrality between and even-handed treatment of all parties. It is at the level of value choosing that the realist and traditionalist analyses differ. According to the traditional descriptions of the judicial process the judge can and should be neutral between competing concepts of the public interest. He should be an uncommitted man, the servant of the legal system, a mouthpiece of the law. If the law favors one interest over another, it is because the legislature has so ordained or the logic of the situation so demands. The realists, on the other hand, although agreeing that the judicial process requires and in fact secures neutrality as between parties to a lawsuit, insist that however desirable it might be in fact, it is impossible to secure a system in which the judges will be complete ciphers in the process of balancing competing claims to justice. The judicial role, the statutory directions, and the precedents may well structure the judge’s choice, but his is a positive and creative participation in the determination of which values the laws will reflect.
Judges must explain decisions. Other decision makers are often called on to justify their actions and to put their decisions into the rhetoric of the public well-being. But only judges are compelled to provide detailed, formally stated, and—at the appellate level—frequently written justifications of why they decided as they did. The fact that a judge knows that he will have to justify his ruling and expose his arguments to the critical attention of a professional audience of his peers has an impact on the decision he makes which is easy to see, difficult to measure, and little studied. The formally written opinion, of course, tidies up a much more complex decision-making process. Many students have been concerned with the various forms of reasoning judges use and have wondered whether they make decisions first and then seek rules to justify them, or whether they move from general rules to the particular dispute.
Judicial rulings as political forces
A judicial opinion justifying a decision, especially of an appellate court, itself becomes a factor in the political process. For the opinion is both an explanation of a particular decision and instruction to law officers, including subordinate judges, as to how they should dispose of similar disputes. And these opinions, like statutes, are themselves subject to a variety of constructions.
Both the traditional and realist analysis of the judicial process tend to emphasize the finality of a judicial ruling. Chief Justice Charles Evans Hughes’s famous quip that the constitution is what the judges say it is is frequently cited to demonstrate that although the Congress may pass a law, it is the Supreme Court which determines whether it will be applied. To the same point is the often quoted remark by Gray, one of the intellectual fathers of the realist movement: “Statutes are . . . sources of Law . . . not part of the Law itself” (Gray  1963, p. 125). In the same tradition Kirchheimer writes, “The validity of a norm does not follow from its existence, but from the fate it suffers in the administrative and judicial process” (Kirchheimer 1961, p. 187).
In all political systems where there is any measure of stability, a judicial decision normally disposes of the dispute between the parties to the lawsuit. In fact, review of a particular decision outside the judicial system (except for executive pardons) is thought to violate the doctrine of separation of powers. And in all nations it is accepted that court decisions ought to be obeyed, that rulings of courts are authoritative, and that the policies pronounced by judges, especially those who serve on appellate courts, ought to guide the behavior of all, especially those who administer the law.
But whether the rulings announced, as distinguished from the resolution of the particular lawsuit, become the standard that controls the behavior of others is no more—perhaps even less—assured for judicially created rules than for legislatively created laws. Judicial constructions do not necessarily end a policy dispute and are no more self-applying than are statutes. What a judicial ruling will mean in the next “individualization” and the next is just as open to the push and pull of the political process, of which the judicial process is a part, as is a legislatively announced rule. What Gray said of statutes can also be said of judicial rulings: “They are sources of the Law . . . not the law.”
The precise impact of judicially proclaimed rules has only recently been investigated. At this stage we can only report in terms of the most sweeping generalizations and cannot trace with any assurance the mechanics that determine which particular judicial rulings are likely to be translated into substantial alterations in behavior. Since judges have no direct command of political or military force and depend on the executive for the enforcement of their decrees, judicial constructions have been of little significance when challenged by totalitarians in control of the legislative and executive agencies. It is impossible to cite a single instance in which judges have been able to defend democratic institutions against onslaught by antidemocrats who have taken or been given legislative authority: not in Nazi Germany, not in fascist Italy, not in the Soviet Union, not in Latin American nations. Although the judges in the Union of South Africa were able to dull the edges of the restrictive apartheid laws for almost a decade, ultimately they were forced to capitulate. After a totalitarian system has been established the rules produced by the judiciary are not likely to conflict with those coming from the legislature.
Some have felt that if the judges are authorized to defend the basic constitution, then they are better able to maintain democratic institutions. Undoubtedly the hope that this might be so accounts for the creation in many of the nations established after World War II of constitutional courts empowered to declare legislative acts unconstitutional.
In stable democratic nations the differing institutional arrangements and the freedom to form differing combinations of political groups often result in conflicts between judicial and legislative agencies. But there is little in the history of these nations to suggest that judicial rulings are likely to endure in the face of determined legislative opposition. For by design courts are not as responsive to the political forces of the community as are the legislatures. (Here we are referring to legislative officials with a nationwide constituency. Compared to regional officials, national judges are more likely to reflect dominant political forces than are the local authorities, and the history of judicial victories over such regionally accountable officials confirms this generalization.) “Except for short-lived transitional periods when the old alliance is disintegrating and the new one is struggling to take control of political institutions, the Supreme Court is inevitably a part of the dominant national alliance. .. . By itself, the Court is almost powerless to affect the course of national policy” (Dahl 1957, p. 293).
Yet it would be wrong to conclude that judges are merely passive instruments reflecting current sentiments and tools of the dominant political groups. For judges themselves are active members of the governing elites and create as well as respond to the political situation. And within stable democratic regimes where the community is divided, judicial support for particular values will often be the critical factor in their emergence as the controlling rules of the community. To have the judges on one’s side and to have their stamp of legitimacy for one’s course of conduct can be an important political asset. Most of the time the judicial rulings will “stick,” although without significant political support they will not stick for long. The key word, of course, is “significant,” and with additional research we may be able to specify the conditions under which the law announced by the judges will control the behavior of the community.
J. W. Peltason
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The judicial process consists in the hearing by impartial persons of a complaint by one party to a dispute and of a defense by the other party, together with their witnesses, followed by a decision that one or the other has the superior claim. Such decisions markedly affect the fortunes and even the lives of members of a society. Hence, there has been considerable discussion of the judicial process and of the general beliefs and personal factors which influence that process, both in preliterate societies and in literate societies. In the Western world, historians and jurisprudents have considered carefully the effects of key decisions. Biographies of judges have investigated their social and personal characteristics, and these have been further illuminated by the autobiographical records and introspections of some great judges. In recent years sociological and psychological studies have introduced new techniques and new interests, so that the study of the judicial process is now considerably diversified. Judges are no longer regarded as engaged in a purely intellectual process of applying normative rules to various situations; the relation between judges and their changing social and cultural milieus is examined in various ways.
While research on the relation of judges and judicial decision to the social and cultural milieu still dominates the outlook of European scholars, the existence in the United States of local, state, and federal courts, each with its political ties, and above all the split decisions of the United States Supreme Court on constitutional issues, have led Americans to focus greater attention on the types of decisions made by particular courts and particular judges or alliances of judges, and on the prediction of those decisions, sometimes with the use of mathematical or quasi-mathematical models. This tendency has been encouraged by the growth of sociometry, small-group sociology, and social psychology in the United States.
There are presumably powerful social and emotional reasons why most judges were for so long regarded by non-Marxist jurisprudents as sacrosanct—wise and impartial arbiters. In this view, the occasional weak, foolish, and even corrupt judges were exceptions who proved the rule. Marxists, of course, saw judges as largely operating in the interests of the ruling class. Nevertheless, it is strange that it took so long before the realistic appreciation by practicing lawyers of judicial “biases” ousted from Anglo-Saxon jurisprudence what Seagle (1941) satirically called the worship of Our Lady of the Common Law, a phrase used by Cardozo and others before him. Now there is a tendency to go to the other extreme and to preach that the only illuminating way to study the judicial process is to concentrate on the actions and motivations of single judges and the interaction between judges in multijudge courts (see editorial comments in Schubert 1964). Study of this key process of social control seems still to arouse considerable emotion and to prevent some scholars from recognizing the multiple complexities of judicial decision making and the many different sociological and behavioral scientific methods of analysis that are applicable.
One type of analysis of the judicial process is that which examines how judges bring to bear the various norms current in the society on a variety of disputes, each of which is potentially unique. These norms are of many different kinds, for they range from “scientific laws” that are believed to govern the behavior of men, animals, insects, and things, through rules whose breach automatically constitutes an offense, to a whole range of general moral precepts. The task of the judge is to select from the variety of rules of different types those which are most likely to give what he considers to be justice in the case and to apply these in terms of a logic which is acceptable to other judges, to the public, and, he hopes, to the litigants. There are, of course, situations in which the judge may merely enforce a decision against one litigant in the interests of a conquering group over a conquered, or of a strong ruling class over a subordinated class. But part of the symbolic accretion of the law is that often the end result of the judicial process has been a decision which claims to represent something called at least law, and usually justice as well. The extent to which judges aim at establishing this claim is therefore one of the first empirical problems which has to be investigated; and the assertion of this claim also has to be checked against the degree of homogeneity of social interests in the population served by the court. The ethics of the judicial position itself often seem to influence judges’ behavior.
Unhappily, records of the reasoning of judges in cases in the classical world and in the early Middle Ages of Europe are too meager to provide adequate material to set in comparison with the detailed records we have of the public argumentation of judges since fuller law records have been kept. It is here that research on the judicial process in tribal societies has added new dimensions to the investigation of the judicial process. Llewellyn and Hoebel’s study (1941), from old people’s reports, of how the Cheyenne dealt with disputes has been followed by a number of detailed studies of judicial reasoning in various tribes. In general these studies present accounts of judicial reasoning in what were relatively homogeneous societies with stable economies, yet societies differing markedly in certain of their cultural premises or jural postulates (Hoebel 1954). Even in these relatively simple situations, judges have to deal not only with standardized situations but also with new types of disputes, precipitated perhaps by slight changes in the environmental situation, or by the idiosyncratic actions of individuals, or by some unique constellation of the complex components that go into making up the interactions between human beings in any sociocultural milieu. If after one Cheyenne has murdered another he has to be banished and the sacred arrows of the tribe have to be cleansed, what is to be done with a woman who kills her father when he tries to rape her, or, on the other hand, with a woman who by unjustified ill-treatment causes her daughter to commit suicide? An investigation of this sort of case led Llewellyn and Hoebel into an illuminating analysis of basic Cheyenne values and of how they were changed and developed to meet new crises, yet were believed to persist. These scholars emphasized, too, how key situations of this kind might contribute to the evolution of political authority, of which judicial action is often a part (Llewellyn & Hoebel 1941, pp. 160, 179).
Men, judges and laity alike, may be (as some argue) guided basically by economic and social interests of which they are perhaps not fully aware. In Europe and America, there has consequently been an emphasis upon the often subconscious motivations that influence judicial behavior (Schubert 1964). But men everywhere interact through language in order to conceptualize their sociocultural and personal aims and values. It would therefore seem unwise to exclude the semantic and structural analysis of the words and the patterned arrangement of words into the arguments of the judicial process: these symbolic relations are some-thing more than a mere veil concealing the real spurs to judicial decision. There must, therefore, be an investigation of the types of words used in the formulation of disputes and decisions, in the full social context of each word, whether it be a key concept of law (such as right, duty, property, etc.) or a simple word defining types of action or relationships between persons. In certain judicial institutions, such as the United States Supreme Court, where most of the decisions of individual judges are recorded in detail and where to some extent the formulas in which decisions are couched, and what they represent, can be taken for granted, students are able to concentrate on how the judges, each with his own social outlook, vary in their decisions on particular issues. These students at-tempt to apply different theories, such as the theory of games, to predict the strategy a judge may follow in different situations to achieve his ends, and they formulate mathematical models which will predict, both for behavioral theory and for practicing lawyers, the probable decisions of particular judges or benches of judges on certain kinds of disputes (Schubert 1964). This work is important, both for an understanding of the judicial process and as a general contribution to various branches of sociology and social psychology. But it takes large sets of facts—such as the structure of American society—for granted and does not analyze the interaction between that society and the judicial process.
For tribal courts we still often lack detailed knowledge of the sociocultural milieu, and in most instances we also lack detailed records of cases, including examination of evidence and judicial decisions. The cases out of which Llewellyn and Hoebel and a number of other lawyers and anthropologists have made remarkable studies of American Indian law are mostly recalled from distant times. Barton’s classic work on the Ifugao (1919) and Kalinga (1949) of the Philippines also gives only the bare bones of cases, which were heard by mediators rather than judges. Pospisil (1958) had the opportunity to record in detail judicial and negotiating processes in a New Guinea tribe before the advent of foreign rule, and Berndt (1962) studied a New Guinea tribe shortly after foreign rule was established; but neither of them has yet published sufficiently detailed records of the process of argumentation toward decisions. The best records come from Africa; these include Schapera’s work on the Tswana (1938), which gives almost complete reports on two cases, Gluckman’s report on ten cases of the Barotse (1955), and Epstein’s records from African Urban Courts established by the former Northern Rhodesian government (1954). Colson (1962, chapter 4) provides one good record of a case of negotiation of settlement among the Tonga, and Gulliver (1963) reports on a few such cases among the Arusha. Bohannan’s study Justice and Judgment Among the Tiv (1957) and Howell’s A Manual of Nuer Law (1954) give brief summaries of cases, rarely reporting cross-examination.
Two contrary attitudes have been adopted in analyzing tribal judicial processes. Bohannan (1957) has insisted that each people has its own folk system of concepts in terms of which the study of non-Western judicial processes and institutions should be made. He has insisted that it is essential not to use the folk concepts of Western jurisprudence to handle the folk systems of other cultures, for, being a folk system themselves, they cannot constitute an analytical system. In contrast, Gluck- man and Epstein (and to a lesser extent Llewellyn and Hoebel, and earlier, Barton) have set their analyses against the type of analyses made of Western judicial processes, in order to highlight both similarities and differences. To pursue this comparison, they have used concepts, such as the reasonable man and reasonable expectations, right and duty, which are used in Western jurisprudence (see Gluckman 1955; Epstein 1954).
There are involved here major problems for all sociological and anthropological comparisons, since similar problems arise in the cross-cultural analysis of religious beliefs and other cultural phenomena. The constant use of local vernacular terms (for example, the use of Latin, German, French, Tiv, or Barotse terms when writing in English) makes reading and discussion difficult for those who do not know the language concerned. In fact, Bohannan in practice has to use English concepts to cover Tiv situations; for example, he emphasizes that Tiv law classifies all actions under the rubric of “debt” and not as contracts or torts, without discussing the relation of this Tiv conception to the dominance of actions in debt in early and middle English law, in ancient Chinese and Babylonian law, etc., and without considering why there should be this apparent similarity (see Gluckman 1965a, chapter 8). And in practice he uses English words, such as right and duty, throughout his analysis.
It is clear that, as Bohannan insists, the first step in ethnographic reporting of the judicial process, in the West as elsewhere, must be to state clearly the local concepts and the manner in which they are used by litigants and their representatives and witnesses to present evidence to the judges and by judges in cross-examination on evidence and in coming to decision. The presentation of these folk concepts, in action, should be clearly separated from the analysis itself. Here it might be clearer, as Ayoub (1961) implies, if one were to invent a set of neologisms, in order to escape from the cultural accretions of key folk concepts in the researcher’s own language. Unfortunately no one has yet proposed such a set of neologisms. Gluckman’s attempted solution was to propose that, for English, a whole series of relevant words be chosen and stipulated to have specific meanings for analysis. If the same words are used as translations of the folk concepts of the people under study, it would be advisable, experience shows, to use printing devices (such as italics or capitals) to indicate where they are being employed for analysis, as against reporting.
The prime necessity in this field is clearly for detailed reporting of the whole course of a trial, with careful attention to what specific folk concept is used in each context. In recent years jurispru-dents have concentrated attention, and often criticism, on the multiple meanings and fringe meanings of key judicial concepts, such as law itself, justice, crime, property, right, duty, negligence, guilt, and innocence. These concepts are not necessarily vague: they may have what Curtis called “a precise degree of imprecision” (1954, p. 71). This is also a characteristic of religious symbols. The study of religious symbolism clearly involves an examination of the multivocality of each symbol, the manner in which it ramifies in its social and emotional referents, and the manner in which it evokes both emotional and social responses. Similarly, the concepts of law have to be investigated to find out how parties, witnesses, and judges use the multivocality of these concepts in order to fit the facts of varied disputes into the rules of law and to advance, respectively, pleas and decisions, which are claimed to state where justice lies.
An important problem is immediately raised by the fact that concepts in law refer not only to states of fact but also to implied moral evaluations of human actions and possibly also the motivations which are believed to lie behind those actions. In developed systems of law, written pleadings by the parties, usually presented through their counsels, have to be stated according to particular formulas which strip away what is believed to be irrelevant and present only those facts which have “forensic” (to avoid the multivocal “legal”) value in terms of those normative rules which, it is argued, apply to the dispute. At some stages in the history of law, failure to set pleadings in a rigidly prescribed form might invalidate a claim, and in modern Western law, indictments may still be thrown out if not properly drafted. Facts at these stages of forensic development therefore come before the judges al-ready processed to conform with certain forensic, and possibly also moral, norms. Many scholars have stressed that this preliminary processing en-tails that, to understand the judicial process, re-search should be done on the preliminary work of police and counsel before disputes come to court, a field little investigated.
Tribal societies—even those like Ashanti, where oaths are sworn to establish jurisdiction—seem to lack this period of preliminary processing of the facts in dispute. Litigants are allowed to state their respective claims in apparently full, and often seemingly irrelevant, detail. While they do so, the judges play a role similar to that of counsel in more developed systems, sifting and processing the facts and issues (Gluckman  1967, chapter 9). It is necessary to watch carefully the extent to which judges allow seeming irrelevance, by analyzing their interruptions and the weight they attach to the various types of facts laid before them. This leads to an investigation of what is conceived to be the task and aim of judges in specific types of disputes: what is irrelevant in a dispute between people who are relative strangers to each other may be very relevant in a dispute between spouses or closely related kinsmen, if the judges are attempting to reconcile the parties and enable them to resume living and working together. This is the common situation in tribal courts, and these may therefore work in ways more akin to Western marriage counselors, lawyers, arbitrators, and industrial conciliators than to Western judges in court.
Most scholars who study social control comparatively emphasize that the establishment of courts is a key phenomenon in the development of law (e.g., Seagle 1941; Stone 1946). The conception of a court here involves that all parties to a dispute should be heard by the court’s judges, who normally refuse to give a verdict until both sides of a case have been presented. Litigants present their evidence and the supporting evidence of witnesses. Litigants and their representatives then cross-examine their opponents and opposing witnesses to try to break down the other case. Judges may enter into cross-examination, although they do so in varying degrees in different societies. Techniques of cross-examination require careful investigation of the extent to which direct evidence, hearsay evidence, and circumstantial evidence are distinguished; the weight which is accorded to im-partiality; and the manner in which these distinctions and other devices are employed to test and perhaps to destroy particular versions of events.
In Zambia, Epstein and Gluckman found that in practically all the cases they heard tried, the litigants and their supporters framed their versions of events in such a way as to present themselves as “reasonable men.” These researchers thus reported the occurrence in Zambian African law of a folk concept which can be translated as parallel to a Western folk concept. Furthermore, they raised the “reasonable man” to the status of an analytical concept which they saw as crucial in the process of judicial cross-examination and decision. By presenting themselves as reasonable men who conformed to the modes of behavior and the standards of their society, and who thus accepted the same premises of “rightdoing” as the judges, litigants exposed themselves to attack by the judges, who seized on discrepancies within their accounts, and between their accounts and those of eyewitnesses. In many cases this enabled judges to destroy a version which appeared to be reasonable and to convict a litigant on the basis of his own story. Thus, in the course of cross-examination they would begin to come to a decision by setting up the standard of how a reasonable incumbent of the role under review would behave in particular circumstances.
Epstein’s work, published in a series of papers, has escaped the attention of most other scholars; but Gluckman’s use of the reasonable man has been severely criticized because it imparts an allegedly vague concept from the Western folk system that is of chief importance in the complex law of negligence. None of the critics has as yet discussed the cases analyzed thus by Gluckman to show that the process of judicial cross-examination and decision can be better understood by using some other set of concepts. On the other hand, Gluckman (1965b) has discussed Tiv cases reported by Bohannan, and other negotiations in societies without courts, to argue that these can be more successfully analyzed by emphasizing how both parties and judges (or other outsiders) operate with some concept of the reasonable man.
For example, in an Arusha case reported by Gulliver (1963, pp. 243 ff.), a father-in-law sued his son-in-law for cattle still due under the marriage payment. At several negotiations, the father-in-law insisted that he was reasonable in bringing suit, for he and his son had debts of their own to meet. He refused to take away his daughter from her husband, as he was entitled to do in law, because the man was a good husband to the daughter, a good father to her children, and a good son-in-law to him. The son-in-law contended that although he had cattle, he needed them for milk and to plough for food for the plaintiff’s grand-children. How could a good grandfather cause his grandchildren to fall into want? Similarly, when it was found that the son-in-law was planning to use cattle to buy land, he countered that he needed the land to get food for the plaintiff’s grandchildren, of which a good grandfather should approve. And so forth. If within the concept “good” we include, as we must, the idea of “reasonable,” then we under-stand how a compromise was reached by negotiation in terms of the rights and duties of a complex of roles, applied in terms of reasonable conformity according to people’s poverty and the demands on them, within certain overriding rules and moral ideas (for a discussion of this whole problem, see Gluckman 1965b;  1967, chapter 9). Many disputes, both in tribal and in more developed systems of law, hinge on the manner in which a person has fulfilled the obligations of a particular role and the degree of conformity in the “range of leeway” (Llewellyn & Hoebel 1941, p. 23) that is allowed to him. This degree of conformity can be determined only when all his obligations are considered in the light of his wealth, strength, etc., as he runs his personal economy in meeting the demands of all those linked to him. That is, the “reasonable man” is here used to try to illuminate how certain key concepts in sociological analysis (role, role expectations, selection of goals) appear through a dispute in the judicial process. Even if it is unwise to use this particular concept, the problems thus raised are crucial, since the dispute is often over degree of conformity; and some means of handling these problems must be devised. This statement on degrees does not deny that certain actions are per se unlawful, although it may even then be possible to demonstrate connections with reasonable demands on incumbents of given roles. In comparative studies it must be recognized that varying standards, customs, etc., may assemble into stereotypes of roles, perhaps not consistently held by all judges (or all jurymen). Disagreement will increase as a society becomes more heterogeneous. Thus, during World War II Barotse judges felt themselves to be helpless when arguing the justice of a levy for war funds with members of the Watch tower sect (Jehovah’s Witnesses), who were pacifists (Gluckman  1967, p. 158). A British jury refused to convict a man of breaches of national insurance law, because some members reacted to what they felt to be the bureaucratic behavior of a civil servant; and members of another jury felt themselves helpless in a case of receiving because, being middle-class, they did not know whether working-class people sold goods to one another in public houses (Devons 1965).
The next stage in the analysis of the judicial process is to examine how judges move from evaluation of evidence to decision. Here there is obviously scope for considerable personal variation. It is worth examining the ways in which the alleged logical steps involved are discussed; and what is striking is the extent to which extremely complex processes of public ratiocination—whether they be rational argument, or rationalization, or both—are described in metaphorical terms. Both in the Western world and in some African cultures, men speak metaphorically of the processes of making decisions : sifting or weighing the evidence, clinching an argument, coming to land, judicial “hunches,” and so forth. These metaphorical expressions show how greatly the conclusions on the evidence by different judges may vary, and how the judges may be strongly influenced by principles and prejudices derived from their social positions or their personal experiences. It must be emphasized that the actual concepts and logic used in judicial decision have to be analyzed to work out how it is possible for idiosyncratic interpretations nevertheless to be stated in some kind of acceptable form.
Central to the judicial process is the manner in which norms stated in general terms are brought to bear on a great variety of disputes, each of which is in some senses unique. The norms which are deployed thus may be well-known rules or codes defining righteous and wrongful conduct, particular customs of patterns of behavior, examples of “rightdoing” derived from everyday life, or previous decisions of the courts. There has to be an assessment of how judges select from these norms, which are not necessarily consistent with one an-other.
But some disputes may be unprecedented, whether because social conditions have changed or because of some extraordinary combination of events. When judges attempt to cope with disputes without precedents, they often have to develop existing law. In The Nature of the Judicial Process (1921, pp. 30–31) Cardozo examined how these gaps in the law are filled in the United States. He defined four methods by which judges meet the general problem of applying existent law, more strongly marked when situations are unprecedented: (1) the line of logical progression—the rule of analogy or the method of philosophy; (2) the line of historical development—the method of evolution; (3) the line of the customs of the community—the method of tradition; and (4) the lines of justice, morals, and social welfare—the method of sociology.
There may well be other methods, and these may not be the most appropriate for sociological analysis. However, Gluckman (1955) was able to apply Cardozo’s categories to Barotse judicial decisions and to show that the kind of logic with which Barotse developed their law to meet the new situations raised by changes consequent on colonial rule could be comprehended in Cardozo’s categories.
For example, when men began to go to work for Europeans in distant areas, the Barotse authorities ruled that if a man was away two years, his wife was entitled to a divorce. In one such case, when the absent husband’s kin pleaded that he continually sent his wife blankets, clothes, and money, the court held: “This woman did not marry a blanket.” A month later the husband returned: he had been on his way home at the time of the suit. His father-in-law insisted on the husband’s making another marriage payment to regain his “divorced” wife. The court rescinded its previous decision, on the grounds that had it known the husband had started for home, it would not have granted a divorce. The purpose of the statute requiring husbands to return was to strengthen marriages: therefore, the court interpreted “return home” as meaning “start for home.” The court also objected to what it considered the wife’s father’s “unjust enrichment.” These decisions exemplify what Cardozo called the method of sociology. At the same time, it must be noted that the Barotse always had frequent divorce and that both the law and the decisions in this case are along the lines of traditional custom.
By contrast, when the southern Bantu tribes, among whom divorce was very rare, have faced the problems of absentee husbands, they have not granted divorce to wives of long-absent husbands, but their courts have held that, after a certain reasonable period, a “grass widow” may take a lover in order to bear children. It is against tribal policy for a woman’s fertility to be idle. The absent husband is denied damages for adultery, and under the rule that children belong to the man who gave cattle for their mother, the adulterine children are his, and not the adulterer’s. The logic of justice, morals, and social welfare combine with different traditions and customs to give varied judicial solutions to similar problems (see Gluckman  1967, pp. 141–142, 284–290; Schapera 1938, p. 157).
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SCHUBERT, GLENDON (editor) 1964 Judicial Behavior: A Reader in Theory and Research. Chicago: Rand McNally. → Contains an excellent selection of articles on judicial behavior and good bibliographical references.
SEAGLE, WILLIAM (1941) 1946 The History of Law. 2d ed. New York: Tudor. → First published asThe Quest for Law.
STONE, JULIUS (1946) 1950 The Province and Function of Law; Law as Logic, Justice, and Social Control: A Study in Jurisprudence. Cambridge, Mass.: Harvard Univ. Press. → The 1950 reprint incorporates a few corrections and changes.
The administration of justice is a vital concern of any civilized community. Upon the proper functioning of the courts depends not only the enforcement of rights and liabilities, such as those between individuals, but also the protection of the individual against arbitrary government and the protection of society itself against the lawless individual.
This article concentrates on judicial administration in the United States. This is not because similar problems do not exist elsewhere, but because their complexion varies so much from one nation to another that a comparative study would not be meaningful unless it took into account in each nation the structure of government, the character of the legal profession, and similar matters beyond the scope of any brief treatment. However, a few references to comparative material are included in the bibliography.
Despite its importance, little systematic study was given to judicial administration in the United States until recent years. Lawyers, judges, and law professors were preoccupied with rules of law and with the procedure for translating them into con-crete decisions; they devoted relatively little attention to the over-all functioning of the judicial machinery. Political scientists also tended to avoid the subject, concentrating their concern upon the legislative and executive branches of government on the theory that the judicial branch was the special preserve of the legal profession. This left the field to politicians, legislators, and a few others confronted with such specific tasks as selecting judges or establishing courts. Understandably, their tendency was to approach each problem ad hoc, without seeing it in context and without much research into historical or comparative experience or into empirical data.
The beginning of sustained attention to the subject probably dates from a now famous speech by Roscoe Pound to the American Bar Association in 1906, entitled “The Causes of Popular Dissatisfaction With the Administration of Justice.” To the then complacent members of that body, he spoke some harsh truths about “waste,” “delay,” “inefficiency,” “archaic judicial organization” and “obsolete procedure.” There followed an awakening of interest in the subject in the law schools of the nation—an interest that has continued and is still growing and in which university political scientists and sociologists have recently joined.
Before long, public-spirited members of the bench and bar began to take notice. The chief vehicle for their early efforts at reform was the American Judicature Society, formed in 1912. In the 1930s, the organized bar began to lend its strength to the growing movement, largely as the result of the enthusiasm of Arthur T. Vanderbilt, who was destined to become not only president of the American Bar Association, the American Judicature Society, and the Institute of Judicial Administration, as well as chief justice of New Jersey, but also the acknowl-edged leader of the entire movement.
In 1934 Congress passed a statute giving power to the United States Supreme Court to make rules of civil procedure for the federal district courts. This was an important step forward, not only be-cause federal procedure badly needed revising but also because of the precedent of vesting in the courts themselves the power to regulate their own methods of operation. The new rules went into effect in 1938, and have been amended from time to time. They have become a model for procedural reform in the various states.
In 1937 the American Bar Association took a stand against the popular election of judges and in favor of a method of selection that would de-emphasize political considerations; and in the same year that association undertook the formulation of “minimum standards of judicial administration” (American Bar Association 1938). These standards were promulgated the following year as a guide for states in improving their court systems, and since then the state committees of the American Bar Association have worked for their implementation. The association has continued to enunciate goals for judicial administration and to work toward them, as is evidenced by its promulgation in 1962 of a model judicial article for state constitutions. Many state and local bar associations have similarly contributed their efforts.
The major problems in judicial administration center on (1) the personnel of the courts, (2) the institutional framework within which they operate, and (3) the procedures they follow. All of these problems are interrelated.
Selection of judges.
Most judges in the United States are popularly elected, but the voters seldom have much interest in the contests or knowledge of the persons for whom they are voting, being content to leave such matters to political leaders. In the federal system, and in a few states, the judges are appointed, but even here, politics tends to play a dominant role. One approach toward de-emphasizing political considerations (without eliminating them entirely) is to require that a judicial appointment be made from a list presented to the governor (or other appointing official) by a non-partisan nominating commission; and to require that after a probationary period of service, the appointee shall run against his own record, not against any other candidate. The choice that ap-pears on the ballot is simply whether Judge X shall, or shall not, be retained in office. This plan is known by various names, the most familiar of which is the Missouri plan, Missouri being one of the first states to put it into effect. Similar plans are now in operation in Kansas, Alaska, California, Alabama, and Iowa; and movements are under way for the adoption of the idea in still other states.
Judicial tenure, retirement, and removal
The tenure of judicial office is one of the factors affecting recruitment of the proper men to become judges, because an office that carries tenure for life or for a long period of years is obviously more attractive than one that carries a short tenure. At the same time, it is important that men do not remain on the bench after their powers have failed or if they have demonstrated by their conduct that they are not fit to hold office. The direction of reform, therefore, has been toward making tenure long, but at the same time providing for retirement or removal under the proper conditions and by a simple and effective procedure. Impeachment, involving legislative accusation and trial, has proved to be a cumbersome and generally ineffective method of getting rid of unfit judges and, consequently, has in some states been replaced or supplemented by removal machinery operated and controlled by the highest judicial officers of the state.
When judges retire from active service because of age or ill-health, adequate financial provision should be made for their retirement. In the federal system, a judge receives full pay for life upon retirement at age 70 after serving for 10 years, or at age 65 after service of 15 years, but this is a far-off ideal for many states. In some states, there is no financial provision at all for retirement, with the result that judges are almost forced to stay on the bench long after their powers have failed; in others, retirement plans exist but are inadequate.
The more generous judicial salaries are, within limits, the more likely they are to attract able lawyers and therefore improve the functioning of the judicial system. Throughout the United States, disparities in salary are striking, with one judge receiving two or three times the amount of money that another receives in a different place for performing much the same work. The movement has been toward generally increased salaries in recent years, but great disparities remain. In the federal courts, the salaries of district (trial) judges have tripled since World War I (going from $7,500 in 1919 to $22,500 in 1955) and appear likely to rise again soon. They seem to be tied (in the minds of congressmen, at least) to the salaries paid members of Congress. In some states, the federal salaries are substantially higher than those paid state judges, but in a few others, like New York, they are substantially lower than the state salaries.
Some nations have a career judiciary in which members of the legal profession choose between the bench and the bar at an early age. Those who become judges receive specialized training—either formal education or apprentice-ship—for their work and then progress by a regular system of advancement through the hierarchy of courts. In the United States, no such system prevails. Judges ordinarily are chosen from the practicing bar at a fairly advanced age and assume office (either at high or low levels) without the benefit of special training for their new work. Be-cause of this system of selecting judges, because there is no regular system of promotion, and be-cause even experienced judges sometimes need help in orienting themselves when they assume new duties or when they are confronted by major changes in the law or in court organization, training programs for judges have become popular in recent years.
Such programs had their origin in conferences where judges got together informally to discuss common problems and needed improvements in the law or to listen to speeches. These informal meetings have gradually been converted into, or supplemented by, more formalized programs of judicial education. The pioneer project was the Appellate Judges Seminar, inaugurated by the Institute of Judicial Administration in 1957 and held for two weeks each summer. Each year it provides a pro-gram for 20 to 25 of the appellate judges of the nation. In 1962, under the aegis of the Joint Committee for the Effective Administration of Justice, an organization sponsored by 14 national organizations interested in judicial administration and headed by Justice Tom C. Clark of the United States Supreme Court, the same idea was extended on a large scale to trial judges of state courts of general jurisdiction. It has held many two-day or three-day seminars throughout the nation. Other seminars are held for new federal district judges under the auspices of the Judicial Conference of the United States; and still others are conducted for juvenile court judges, traffic court judges, and justices of the peace. The movement is continuing to grow and expand, as is evidenced by the establishment in 1964, on what was hoped to be a permanent basis, of the College of Trial Judges, to be conducted four weeks each year for new judges of state trial courts of general jurisdiction. Further in the future is the possibility of establishing a training program for lawyers who are not yet judges, but who have ambitions in that direction.
Elimination of lay judges
Some judges have not even received a law school education to qualify them to act as lawyers. These typically are justices of the peace, handling small traffic cases, other minor criminal cases, and small civil claims; but sometimes they are also found in probate courts, administering the estates of persons who have died. In England, the justice of the peace is a highly respected official, but in the United States the office has been degraded and has become the object of widespread criticism. Too often it is given as a reward to the politically faithful whose only qualifications are services rendered, or to be rendered, to the party in power. It is not surprising, therefore, that a movement is under way in many states to replace justices of the peace and lay probate judges with legally trained, full-time professional judges. Where this is politically feasible, efforts are being made to require that justices of the peace be lawyers or at least to provide training programs for them along the lines of the programs for regular judges described above. In a considerable number of states such reforms have already been accomplished. In Maine, for example, in 1960 the justices of the peace were eliminated and replaced by a system of full-time, legally trained judges.
During the last fifty years the civil jury has virtually disappeared in England. In the United States it still flourishes, its greatest use being in personal injury negligence cases. The right to trial by jury is guaranteed by state constitutions (for state court cases) and in the federal constitution (for federal court cases)—but only in those situations where a jury had been traditionally used, namely, actions developed in the common law courts of England. The typical constitutional provision is that the right shall “remain inviolate,” meaning that it is not extended to actions either historically tried without a jury or newly created by statute. In consequence, many civil actions are today tried without a jury.
Some judges and lawyers believe that the jury is no longer justified even in the limited group of civil actions where it is still used. They point out that juries are the cause of many of the law’s delays, that they greatly increase the expense of litigation, that they introduce uncertaintyin into the judicial process, and that they frequently disregard and set at nought the governing law. Consequently, from time to time there is talk about the desirability of getting rid of the jury in civil cases—a movement that thus far has not progressed very much. More successful have been indirect efforts to curtail the use of the jury by encouraging waiver of the constitutional right or by making the party demanding this method of trial pay some of the extra costs entailed thereby. Currently under serious consideration is a proposal to take automobile accident cases out of the courts and entrust such claims to administrative tribunals modeled after workmen’s compensation boards.
In criminal cases, the jury is still used extensively both in England and the United States. The grand jury, however—the one that makes accusations of crime, as distinguished from the petit jury, which determines guilt or innocence—has disappeared in a number of states, having been replaced by a procedure, which is less cumbersome, whereby the district attorney, on his own responsibility, makes the accusations that bring men to trial.
Important efforts have been made, and are being made, to improve the method of selecting jurors for both civil and criminal cases. The goal is to se-cure more intelligent, better educated juries, that is, juries more fairly representative of the community. Notable in this regard have been United States Supreme Court decisions outlawing systems of jury selection that involve the systematic and intentional exclusion of Negroes and similar minority groups. Sometimes independently of such decisions and sometimes as a result of them, administrative improvements in the method of selecting juries have been made.
The proper functioning of the courts depends not only upon the judges and jurors but also, and perhaps equally, upon the performance of the bar. If the bar is capable, conscientious, and responsible, the quality of justice is likely to be good; if not, the quality of justice is likely to be deficient, for the Anglo-American system is predicated in very large part upon lawyers presenting to the court the raw materials, both factual and legal, that will be needed for decision.
Three developments in recent years have tended to increase and improve the services rendered by the bar. One is the inauguration of new methods of supplying legal service to those who are unable to pay for it, beyond the traditional practice of having a judge appoint a member of the bar to represent an indigent defendant accused of a serious crime. Legal aid societies, which offer the services of lawyers to indigent persons in both civil and criminal cases, have been established in many communities; and in some counties, public defender systems have been created, whereby publicly appointedand compensated officers defend indigent defendants. The trend toward more adequate legal representation for indigents has been greatly stimulated by a series of Supreme Court decisions holding that the right to counsel in criminal cases is guaranteed by the U.S. constitution.
Another development of importance has been the improved education of lawyers. Not only have the undergraduate law schools been greatly improved and standards for admission to the bar tightened but systems of postgraduate legal education have also been developed in university law schools and in bar-controlled programs of continuing legal education.
A third development of significance is the strengthening of bar associations, which maintain a degree of discipline over the conduct of individual lawyers and provide a vehicle for the discharge of professional responsibilities. An increasing number of such associations have become “integrated,” meaning that membership in them has become mandatory, with all lawyers in the state paying dues and having a voice in their affairs. As a result, such bar associations can speak with a high degree of authority.
Court structure in the United States is far from simple. Instead of a single system of courts such as in England or France, 51 separate systems are in operation—one for each of the 50 states and another for the federal government. To a large extent, the federal courts duplicate the work of the state courts, but Americans have become so accustomed to the idea of a dual system of courts that there is little likelihood of such duplication being eliminated or even substantially reduced.
A much more likely area of reform is the court structure of any given state, where there frequently is great complexity and disorganization. Jurisdiction all too often is fragmented among a motley conglomeration of disparate courts, operating independently of one another and doing cumbersomely and inefficiently what could, and should, be done simply in a unified system. Many states have radically simplified their court structure, reducing the number of courts and eliminating duplication.
Many states have also established machinery for the unified operation of their courts, providing for conferences of judges to discuss common problems and vesting administrative authority over the en-tire system in a single judge (usually the chief justice of the highest court), giving him the responsibility of relocating, if necessary, the entire judicial manpower of the state by temporary assignment of judges from one locale or one court to an-other. For these administrative tasks, he is provided with assistants, who collect statistics, prepare reports, conduct studies, and the like.
A prime objective of improved administration is to combat delay. Many courts, particularly those in metropolitan areas, are suffering from chronic congestion. In these courts, it may take as long as three, four, or five years for a case to reach trial. Efficient, businesslike administration, with free transferability of judges and cases, is thought by many to be a key remedy for this malady.
As in many other areas, the federal courts took the lead in judicial administration, too, with the inauguration in 1922 of the Judicial Conference of the United States and the establishment in 1939 of the Administrative Office of the United States Courts. These provide models for states wishing to improve the administration of their own courts, and they have been extensively copied.
Until the nineteenth century, the regulation of procedure was largely in the hands of the courts, which devised their own rules and changed them from time to time as they saw fit. Then legislatures began to take over the function, in part because the rules developed in the courts of England had become excessively rigid, unrealistic, and unsuited to the needs of litigants, necessitating a radical change, and in part because of the general increase of legislative power and activity during this era. One of the great legislative achievements was the promulgation of the Field Code of New York in 1848, abolishing ancient forms of procedure, providing a uniform procedure for all types of action, and merging into a single court of general jurisdiction the powers that theretofore had been exercised separately by the common law courts and the chancery or equity courts.
Time proved, however, that legislative regulation of procedure was not satisfactory, for reasons well stated by Judge Cardozo: “The legislative, in-formed only casually and intermittently of the needs and problems of the courts, without expert or responsible or disinterested or systematic advice as to the workings of one rule or another, patches the fabric here and there, and mars often when it would mend” (1921, pp. 113–114).
As a result of such criticisms, the tendency has been to restore procedural rule-making power to the courts. This has been accomplished in many states as well as in the federal government, where Congress delegated to the Supreme Court rule- making power over the lower federal courts. The rules promulgated by the Court pursuant to this authority (covering both civil and criminal cases) are brief and simple, de emphasizing technicalities and procedural niceties in favor of greater concentration on the merits of litigation. They have provided an inspiration and model for procedural reform in many of the states.
While great strides have been made during the twentieth century toward simplified and improved procedure, there are still many areas that urgently demand attention. One is the law of evidence, which tends to be unduly complicated and to exclude relevant and reliable information for reasons so technical that they are meaningful only to tradition-minded lawyers. Another is the reaching of a proper balance between the right to a fair trial and the right to a free press. Newspaper, television, and radio coverage of the facts of some cases prior to trial is so extensive and spectacular that it makes virtually impossible a fair trial. Still another is re-storing to the trial judge his historic power to control the trial, including the power to comment on the evidence and thus guide and help the jury in determining questions of fact .These few examples, far from being a catalogue of what remains to be done, merely suggest the range and nature of the many problems to be faced.
In recent years there has been a growing recognition that the administration of criminal justice requires and deserves, at the least, attention equal to that given to the handling of civil litigation. One of the reasons is that the United States Supreme Court has devoted much attention to the subject, making clear, in a long series of decisions, that criminal justice in many of the states falls below the minimum requirements of decency and fair play guaranteed by the federal constitution. In the 1950s the American Bar Foundation engaged in major research into the functioning of criminal law in the United States. This study is expected to result in the publication of several detailed volumes of description and criticism. In 1964 a new effort was launched by the American Bar Association, in conjunction with the Institute of Judicial Administration, to formulate minimum standards of criminal justice similar to the Minimum Standards of Judicial Administration of 1938. Many additional research projects, generously supported by foundation grants, are being carried on in schools of law and departments of sociology in a number of American universities.
Increasing interest in criminal law also may be responsible, in part, for another significant recent development: the utilization of new methods and techniques of research in the law. The emphasis today seems to be upon empirical, quantitative methods borrowed from the social science disciplines, supplementing the older emphasis upon books, theory, and a priori reasoning. Increasingly of late, men from university faculties other than the law schools have been interesting themselves in problems of judicial administration.
Finally, growing attention is being paid to the comparative aspects of judicial administration. As men have become conscious of the fact that, in general, one nation may learn from another, so also have they become increasingly aware that much is to be learned by comparative study in the field of judicial administration. Recent interchanges between British and American jurists on appellate procedure and on the administration of criminal justice have yielded excellent results for both countries and are likely to continue.
American Bar Association 1938 Minimum Standards of Judicial Administration. Volume 63, pages 517–656 in American Bar Association, Annual Report. Chicago: The Association.
Berman, Harold J. (1950) 1963 Justice in the U.S.S.R.: An Interpretation of Soviet Law. Rev. … enl. ed. Cam-bridge, Mass.: Harvard Univ. Press. -→ First published as Justice in Russia: An Interpretation of Soviet Law.
Cardozo, Benjamin 1921 A Ministry of Justice. Harvard Law Review 35:113–126.
David, Rene; and DE Vries, Henry P. (1957) 1958 The French Legal System: An Introduction to Civil Law Systems. Dobbs Ferry, N.Y.: Oceana.
Elliott, Sheldon D. 1959 Improving Our Courts: Collected Studies on Judicial Administration. Dobbs Ferry, N.Y.: Oceana.
Haynes, Evan 1944 The Selection and Tenure of Judges. Newark, N.J.: National Conference of Judicial Councils.
Jackson, Richard M. (1940) 1964 The Machinery of Justice in England. 4th ed. Cambridge Univ. Press.
Karlen, Delmar 1963 Appellate Courts in the United States and England. New York Univ. Press.
Klein, Fannie J. 1963 Judicial Administration and the Legal Profession. Dobbs Ferry, N.Y.: Oceana.
Mayers, Lewis (1955) 1964 The American Legal System: The Administration of Justice in the United States by Judicial, Administrative, Military, and Arbitral Tribunals. Rev. ed. New York: Harper.
Millar, Robert W. 1952 Civil Procedure of the Trial Court in Historical Perspective. New York University, Law Center.
Orfield, Lester B. 1939 Criminal Appeals in America. Boston: Little.
Orfield, Lester B. 1947 Criminal Procedure From Ar-rest to Appeal. New York Univ. Press.
Pound, Roscoe (1906) 1963 The Causes of Popular Dissatisfaction With the Administration of Justice. Chicago: American Judicature Society to Promote the Efficient Administration of Justice.
Pound, Roscoe 1940 Organization of Courts. Boston: Little.
Pound, Roscoe 1941 Appellate Procedure in Civil Cases. Boston: Little.
Schubert, Glendon (editor) 1963 Judicial Decision-making. International Yearbook of Political Behavior Research, Vol. 4. New York: Free Press.
Vanderbilt, Arthur T. 1949 Minimum Standards of Judicial Administration. New York University, Law Center.
Vanderbilt, Arthur T. 1955 The Challenge of Law Reform. Princeton Univ. Press.
Warren, George 1942 Traffic Courts. Boston: Little.
Willoughby, William F. 1929 Principles of Judicial Administration. Washington: Brookings Institution.
Zeisel, Hans; Kalven, Harry Jr.; and BUCHHOLZ, BERNARD 1959 Delay in the Court. Boston: Little.
Judicial review, considered functionally, is one method for resolving disputes over constitutional boundaries. (Constitution, in this article, means the set of rules, whether or not written, which is considered by most members of a community to define authoritatively the fundamental political relationships within that community.) In any political system, no matter how developed or Westernized, the boundaries separating constitutionally permissible behavior from that which is constitutionally proscribed are imprecise enough to cause occasional controversy. The task of resolving such constitutional boundary conflicts is commonly assumed by one or more of a variety of political or quasi-political structures, for example, parties, religious associations, legislatures, judicial bodies, military establishments, or political executives. But in only a few countries do judicial bodies actually play much of a part in settling constitutional boundary disputes. These certainly include Australia, Canada, and the United States. Something of a case can be made for adding several others, among them Austria, Argentina, Brazil, Colombia, India, Ireland, Mexico, Japan, Switzerland, Italy, Norway, and the German Federal Republic (West Germany).
Authorities tend to disagree on whether judicial review exists in a given country, largely because no two scholars appear to hold identical views as to what judicial review is or how it should be defined (cf., e.g., Abraham 1962; Black 1960; Corwin 1932; Haines 1914). Nevertheless, some definition is essential as a point of departure. The following is offered as somewhat less troublesome than most: Judicial review is the process whereby a judicial body determines the constitutionality of activity undertaken by a country’s national legislature and by its chief political executives.
The above definition requires three assumptions to which some might take exception. Each needs to be made explicit. First, the body exercising judicial review need not be an integral part of the ordinary system of law courts, as is the case in the United States, Canada, Australia, Japan, Norway, Ireland, and India. Therefore, countries that make use of special constitutional tribunals (Austria, Italy, and the German Federal Republic) are not ipso facto excluded from the roster of those having judicial review (Cole 1959; Rupp 1960).
The second assumption is that a judicial body’s refusal to enforce or otherwise legitimize official conduct constitutes judicial review only when the ground for doing so is that the country’s constitution has been violated. Thus, refusing to sanction an official’s conduct because it exceeds the authority delegated to him by ordinary statute or by an administrative superior (the doctrine of ultra vires) is not considered a species of judicial review.
The third assumption is that the range of behavior reviewed must cover national (rather than merely regional or local) legislative and executive action. Switzerland, as a result, is not considered to have judicial review because its Federal Tribunal can determine the constitutionality of only cantonal but not federal legislation. Mexico is currently a somewhat similar case. Its writ of amparo, however important in protecting individuals against unconstitutional action by minor officials and local ordinances, is no longer seriously invoked against high officials or national policies of the Institutional Revolutionary Party (PRI), which has dominated Mexican politics since the late 1920s (Busey 1964, pp. 38–40).
Development of judicial review
On whatever else they may differ, virtually all students of judicial review agree that the phenomenon is an innovation of the American federal system. One can, of course, point to certain antecedents (Haines 1914, pp. 29–121 in 1932 edition). Among these are (1) the centuries-old natural-law doctrine that even kings and legislatures are bound by a higher or fundamental law; (2) Coke’s famous, if questionable, dictum in Dr. Bonham’s case that “when an act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such act to be void” (Coke  1826, p. 375); (3) the experiences with councils of censors and revision in Britain’s American colonies before the American Revolution; and (4) a small fistful of state court decisions before the drafting of the constitution in 1787. Although some discussion of judicial review took place at the constitutional convention of 1787, at the state ratifying conventions, and in the Federalist Papers, no direct link between these antecedents and the beginnings of the American practice under the constitution has been firmly established (Beard 1912; Corwin 1938; Mason 1962). Indeed, decades of combing the relevant records and papers have served to leave even the intentions of the framers concerning judicial review as elusive as a will-o’-the-wisp.
Whatever the intentions of the Founding Fathers may have been, the American doctrine of judicial review received its classic statement from the pen of John Marshall in Marbury v. Madison (1 Cranch U.S. 137, 1803). In that celebrated decision, a section of the Judiciary Act of 1789, which authorized the Supreme Court to mandamus officers of the United States, was held unconstitutional. Chief Justice Marshall chose to build his argument for judicial review not upon a foundation of precedent and practice but upon one of close reasoning and lofty rhetoric. The heart of his position may be stated as a set of three propositions: (1) The constitution is a higher law, superior to ordinary law such as statutes, ordinances, and the common law; (2) In a conflict between the constitution and ordinary law, the constitution must prevail; (3) If in litigation properly before a court of law the court in question finds a conflict between the ordinary law on which one party relies and the constitution, that court must refuse to enforce the ordinary law.
The first two propositions were accepted without much dissension, but the third point was hotly disputed at the time and for several decades thereafter. The principal objection was that Marshall had overridden the distinction between the legal and the political.
The striking implications of Marshall’s third proposition become more apparent on analysis of the governmental functions which courts ordinarily perform (Almond & Coleman 1960, pp. 3–64). The most characteristic of these isrule adjudication —the peaceful resolution of conflicts arising from the application of general rules to particular situations. After evaluating both the evidence presented and the relevance of the statutes or regulations applied, courts decide whether punishment or relief is appropriate. In countries where the judiciary possesses any measure of independence, rule adjudication customarily includes the authority to invoke the doctrine of ultra vires. This practice, however, does not constitute a subset of judicial review as defined above.
Their active role in rule adjudication involves courts willy-nilly in another governmental function, that of rule making. This is so because precisely what a given rule means is often a central issue in a legal dispute and as such must be determined by the court involved. The need to engage in rule making via statutory construction, as English judges have on occasion effectively demonstrated, offers courts opportunities to frustrate legislative-executive policy for substantial periods of time (Laski 1926; Allen 1927, pp. 402–504 in 1951 edition; McWhinney 1956, pp. 31–48). Ultimately, the more political branches will have their way in practice as well as in theory, but the judicial impact on public policy in the short run can be rather substantial. Yet this judicial braking, or “indirect judicial review” as it is sometimes called, is a far cry from what John Marshall had in mind in Marbury v. Madison.
What Marshall claimed was that courts, in carrying out their age-old task of assisting in the peaceful settlement of disputes by applying previously established general rules to particular situations, were free to do even more than reshape through imaginative statutory interpretation. They could, in effect, go behind legislative and executive prescriptions by independently assessing the constitutional authority of the more political branches to make them. This doctrine, once firmly established, won for the United States courts a major role in defining and maintaining the boundaries separating legitimate governmental action from that which is constitutionally proscribed.
Judicial review and federalism
Marshall’s opinion in Marbury v. Madison is universally regarded as the classic justification for judicial review. Al-though the doctrine of federalism is not involved in that case at all, the relationship between federalism and judicial review is hardly casual. Dicey may have been guilty of overstatement when he maintained that judicial review is a necessary element of a federal state ( 1961, but cf. Bryce  1909, pp. 242–261, who took the opposite view); however, it is nonetheless true that almost every contemporary federal polity has a judicial body with some authority for mediating conflicts between its central and regional systems. This is as true of Austria and the German Federal Republic, with their special constitutional courts, as it is of Australia and the United States. Switzer-land, as noted above, is something of an exception, for its Federal Tribunal is empowered to evaluate only the constitutionality of cantonal statutes.
The reason why federal states generally make use of judicial bodies in resolving boundary controversies is no mystery when the essence of federalism is considered. In a federal polity there are two major political subsystems, the central and the regional. In each of these subsystems the governmental structures and the functions they per-form are authorized by a source largely independent of the other subsystem. Each is free to do its work without serious threat of intervention from the other. With arrangements such as these, a federal system must almost of necessity possess a written document, or constitution, which outlines in more or less realistic fashion the subsystem boundaries. This constitution must, in addition, be treated as more basic than ordinary law in two regards. First, the constitution prevails whenever there is a conflict between it and an ordinary legislative or executive action and, second, the constitution cannot be unilaterally altered by either subsystem. Resolving controversies which arise over the subsystem boundaries delineated in such a written document requires a relatively impartial governmental structure experienced in the techniques of textual exegesis. Judicial bodies are especially well suited for this purpose. Indeed, as experience in Argentina, Australia, Canada, and the United States suggests, even the absence of a specific constitutional authorization for judicial review in a federal system is not apt to prove a deterrent to judicial participation in boundary definition.
Although federal states tend by their very nature to utilize judicial review in solving central–regional boundary controversies, a judicial body, once relegated this authority, may extend its jurisdiction to almost any section of the constitution—and even seek to assume the role of its general guardian. When the basic law contains vague restrictive clauses like “due process” and “equal protection,” as in the constitution of the United States, judges are handed generous opportunities for opposing public policy which does not meet their approval. In Australia, for instance, although section 92 of the constitution is clearly aimed at the border duties which had so sorely troubled the Australian colonies in prefederation days, it has been used by the High Court to invalidate important state and federal legislation designed to institute social and economic planning.
As a rule countries which are truly federal in practice have some form of judicial review; and unitary systems leave constitutional boundary problems to nonjudicial instrumentalities. However, there are at present several exceptions, notably, Norway, Ireland, Japan, and Italy. Each of these unitary systems has a written constitution whose restrictions on legislative and executive conduct are to some extent monitored by a judicial body. Just when the Norwegian Supreme Court first assumed the power of judicial review is open to question, but it has exercised this power, however cautiously, since the last decade of the nineteenth century (Torgerson 1963, pp. 221–225). In Ireland judicial review was established by the constitution of 1937. Here, too, the Supreme Court’s action has been characterized by self-restraint; but there can be no question that the doctrine of judicial review is an integral part of the Irish political process (McWhinney  1960, pp. 152–169). Review in Japan (Nathanson 1958) and Italy (Cole 1959) is a post-World War II phenomenon, and in the case of Japan it is directly attributable to American occupation authorities. It is probably too early to say that the institution of judicial review is firmly established in either country, although there is no current indication that the appropriate courts in either are disposed to let it wither on the vine. But in any case, judicial review of a meaningful kind has been practiced more or less effectively in enough unitary systems to demonstrate that it is a viable, although clearly not essential, method of dealing with their constitutional boundary problems.
Impact of judicial review
The success that judicial bodies have enjoyed in having their constitutional interpretations accepted has been the subject of a great deal of scholarly attention, and some broad generalizations are possible. An interpretation which is strenuously opposed by a deter-mined legislative–executive coalition, for example, will not stand for long. Ultimately the judicial institution must yield. If it does not do so gracefully by abandoning its earlier position, then the written constitution will be formally amended, or the composition or the powers of the judicial body itself will be altered. Argentina represents the extreme case (Blanksten 1953, pp. 123–129).
After a series of head-on clashes with Juan Peron, whose supporters controlled both the Senate and the Chamber of Deputies, impeachment proceedings were instituted against all five members of the Supreme Court of Justice. Rather than suffer further through this trying ordeal, Chief Justice Roberto Repetto resigned. His four associates stayed on to be impeached by the Chamber and subsequently removed from office by the Senate.
Even in the United States, where judicial review is most firmly entrenched, the Supreme Court has consistently come out second-best in direct confrontations with a strong executive–legislative coalition.
When political power is badly fractionalized, however, judicial interpretations will generally stand, even though they are highly controversial and have vast consequences (Murphy 1962). Dozens of post-World War II decisions by the United States Supreme Court in cases involving Negroes, criminal defendants, and persons actually or allegedly associated with the communist movement illustrate this point.
Generalizations such as these admittedly do not constitute precise statements of the relationships among the relevant variables. And there is precious little evidence that much energy is being directed to so refining them. Hardly more attention has been given to measuring rigorously the impact on the community of judicial review in a particular decision or set of decisions. Sorauf’s study of the United States Supreme Court’s released-time cases, a noteworthy exception, barely scratches the surface (1959; see also Dahl 1957). The methodological difficulties inherent in rigorously assaying either the circumstances under which judicial interpretations will be accepted or the impact of judicial review are formidable indeed. Nevertheless, until more strenuous efforts have been made to overcome these methodological problems, it would be unduly pessimistic to suggest that they are insur-mountable.
An extensive bibliography is appended to the article by Corwin 1932; unless cited in the above text, these references are not repeated in the bibliography. The best single source of information on judicial review in the non-English-speaking world is the quarterly American Journal of Comparative Law, which frequently publishes articles on judicial review by leading authorities.
Abraham, Henry J. 1962 The Judicial Process: An Introductory Analysis of the Courts of the United States, England, and France. New York: Oxford Univ. Press.
Allen, Carleton K. (1927) 1964 Law in the Making. 7th ed. Oxford: Clarendon.
Almond, Gabriel A.; and Coleman, James S. (editors) 1960 The Politics of the Developing Areas. Princeton Univ. Press.
American Journal of Comparative Law. → Published since 1952.
Beard, Charles A. (1912) 1962 The Supreme Court and the Constitution. With an introduction and bibliographies by Alan F. Westin. Englewood Cliffs, N.J.: Prentice-Hall.
Black, Charles L. 1960 The People and the Court: Judicial Review in a Democracy. New York: Macmillan.
Blanksten, George I. 1953 Perón’s Argentina. Univ. of Chicago Press.
Bryce, James (1888) 1909 The American Commonwealth. 3d ed., 2 vols. New York and London: Mac-millan. → An abridged edition was published in 1959 by Putnam.
Burgoa, Ignacio (1943) 1957 El juicio de amparo. 4th ed. Mexico City: Porrúa.
Busey, James L. 1964 Latin America: Political Institutions and Processes. New York: Random House.
Cahn, Edmond N. (editor) 1954 Supreme Court and Supreme Law. Bloomington: Indiana Univ. Press.
Cole, Taylor 1959 Three Constitutional Courts: A Comparison.American Political Science Review 53:963–984.
Corwin, Edward S. 1932 Judicial Review. Volume 8, pages 457–464 in Encyclopaedia of the Social Sciences. New York: Macmillan.
Corwin, Edward S. (1938) 1957 Court Over Constitution: A Study of Judicial Review as an Instrument of Popular Government. Gloucester, Mass.: Smith.
Dahl, Robert A. 1957 Decision-making in a Democracy: The Supreme Court as a National Policy-maker. Journal of Public Law 6:279–295.
Dicey, Albert V. (1885) 1961 Introduction to the Study of the Law of the Constitution. 10th ed. With an introduction by E. C. S. Wade. London: Macmillan; New York: St. Martins. → First published as Lectures Introductory to the Study of the Law of the Constitution.
Germany (Federal Republic), Bundesverfassungsgericht 1963 Das Bundesverfassungsgericht. Karlsruhe (Germany): Miiller. → Contains studies of the Federal Constitutional Court of the West German Republic by leading authorities, including some of its members. Among the contributors are Justices Rupp, Leibholz, Hopker-Aschoff, and Wintrich.
Grant, J. A. C. 1954 Judicial Control of Legislation: A Comparative Study. American Journal of Comparative Law 3:186–198.
Haines, Charles Grove (1914) 1959 The American Doctrine of Judicial Supremacy. 2d ed., rev. & enl. New York: Russell.
Laski, Harold J. 1926 Judicial Review of Social Policy in England: A Study of Roberts v. Hopwood et al. Harvard Law Review 39:832–848.
Linares Quintana, Segundo V. 1953– Tratado de la ciencia del derecho constitucional argentino y comparado. Vol. 1– . Buenos Aires: Editorial Alfa.
Mcwhinney, Edward (1956) 1960 Judicial Review in the English-speaking World. 2d ed. Univ. of Toronto Press.
Mcwhinney, Edward 1962 Constitutionalism in Germany and the Federal Constitutional Court. Leiden (Netherlands): Sythoff. → Deals exclusively with the Bundesverfassungsgericht.
Mason, Alpheus T. 1962 The Supreme Court: Palladium of Freedom. Ann Arbor: Univ. of Michigan Press.
Murphy, Walter F. 1962 Congress and the Court: A Case Study in the American Political Process. Univ. of Chicago Press.
Nathanson, Nathaniel L. 1958 Constitutional Adjudication in Japan. American Journal of Comparative Law 7:195–218.
Roche, John P. 1952 Executive Power and Domestic
Emergency: The Quest for Prerogative. Western Political Quarterly 5:592–618.
Rossiter, Clinton L. 1951 The Supreme Court and the Commander in Chief. Ithaca, N.Y.: Cornell Univ. Press.
Rupp, Hans G. 1960 Judicial Review in the Federal Re-public of Germany. American Journal of Comparative Law 9:29–47.
Sorauf, Frank J. 1959 Zorach v. Clauson: The Impact of a Supreme Court Decision. American Political Science Review 53:777–791.
Tanenhaus, Joseph 1956 The Supreme Court and Presidential Power. Pages 106–113 in American Academy of Political and Social Science, The Office of the American Presidency. Philadelphia: The Academy.
Torgerson, Ulf 1963 The Role of the Supreme Court in the Norwegian Political System. Pages 221–244 in Glendon A. Schubert (editor), Judicial Decision-making. New York: Free Press.