Courts And Adjudication Research Paper

Judges presiding over proceedings in courts share much in common with mediators and arbiters. All three are independent and strive to bring about a resolution of the dispute that will be perceived to be fair. But adjudication is distinguished from both mediation and arbitration in several ways. Judges are externally appointed by the state and parties have no or very little control over who is selected to hear their dispute. Judges impose authoritative outcomes, but unlike arbiters, judges are expected to render their decisions according to pre-established norms. Furthermore, unlike mediation, adjudication does not require the consent of the parties either to participate or to resolve the disputes. Indeed, typically adjudication is triggered by the action of one party against the other. In some cases, for instance in criminal proceedings, a public prosecutor acting on behalf of the state initiates a proceeding not only against the will of the accused but without the consent of the victim.

Because their proceedings do not require the consent of all parties, courts face a crisis of legitimacy. As a consequence, courts must find substitutes for consent. These substitutes can be understood as a set of principles (Cappalletti 1989). The more important of these are the principle of party participation, the principle of the rule of law, the principle of impartiality, and the principle of independence. Indeed these principles have come to be understood as the defining characteristics of courts. The principle of party participation assures that those likely to be affected by a court’s decision have an opportunity to make arguments and offer proofs in their behalf, but it also requires that the court respond with reasoned arguments to these concerns (Fuller 1981). This principle may help account for the propensity of courts almost everywhere to encourage settlements in lieu of full-fledged trials and to value confessions of guilt or acknowledgements of liability. Although such practices have the obvious benefit of reducing the costs and risks of trial, they also provide–even if only symbolically–the active consent of the defendant to the process. The principle of the rule of law prohibits judges from making ad hoc decisions; it requires them to render decisions according to pre-existing norms, the rules of the game which both parties have used (or are free to use) to organize their expectations and to arrange their affairs. Both party participation and the rule of law can be understood as approximations for consent. Participation provides parties with a voice and requires that their concerns be addressed; the rule of law presumes a shared set of norms or at least a set of rules under which all the parties operate. As we shall see, the rule of law is not a necessary condition for judicial independence, though it is closely associated with the notion of judicial independence.

The principle of impartiality requires that judges have no interest in the outcome and no reason to favor one party over the other. This is usually achieved through the nature of the office; full-time judges, whose compensation is not dependent upon the outcome of the controversy, do not have any personal interest in the outcome of the controversy or ties to the parties of the dispute.

The related principle of judicial independence holds that the judge is not only independent of one or the other of the parties, but is also independent of other influences as well; the judge’s full fidelity is to the rule of law. This poses an obvious and important challenge and may be the most difficult of the principles to implement. At times those not party to a dispute, such as an industry or trade association, may have an interest in pressing for a particular outcome in a case or for a particular interpretation of a rule. More challenging still is that, as officials of the state, judges may be under pressure to adhere to political concerns rather than to the rule of law. Indeed, these two concerns are not always clear and separate. Almost everyone would agree that judicial independence is likely to be jeopardized if political authorities dismiss or force the resignation of judges with whom they disagree or if courts routinely uphold edicts of the regime that have not been duly enacted. A more subtle problem of judicial independence arises when the state enacts new laws, resists interpretative approaches of the judges, removes issues from the jurisdiction of courts, and seeks to influence judicial selection.

Similarly the issue of independence arises when judges make policy. Typically judges make policy when they confront new situations not covered by existing doctrine or when existing doctrine contradicts deeply held personal or widely supported social norms. In such situations, courts may continue to apply outmoded norms. However, courts might alternatively create new doctrine through any of several institutional devices, such as the use of fictions (Fuller 1967), reliance on metaphors, and reasoning by analogy (Levi 1961), or treat vague and open-ended provisions in constitutions or statutes as grants of authority authorizing them to make new law (Feeley and Rubin 1998). In any of these situations, judges can be criticized for abandoning the rule of law and hence for compromising their independence. Yet judges who insist on following outmoded or restrictive laws also run the risk of being criticized for failing to act independently and for being subservient to an un-popular regime or a new regime. Independence surely means more than freedom to apply a narrowly-prescribed process of interpretation.

No one seriously argues that the modern state lacks authority to enact a wide variety of laws (though constitutional safeguards, conceptions of individual rights, and the like may severely constrain what the state may do and how it must enact laws). Still, the rule of law requires that laws be duly enacted, and publicized. At a minimum an independent judiciary is one which honors and upholds these procedural limits on state power. Still, governments, particularly new regimes following major political realignments or revolutions, may exert strong pressures on the judiciary to fall in line with the ‘spirit’ of the new regime. The new regime may be impatient with the slow pace of change through the rule of law or may react to what it perceives as a conservative judiciary wedded to the old order; it might exert pressure upon the judiciary to look at things in a new way. Such pressures can take any number of forms, including requesting judicial resignations, altering the procedures for judicial selection and advancement, selecting new judges whose views are aligned with those of the new regime, demoting judges deemed to be recalcitrant, or simply ignoring judicial actions that are deemed unacceptable. This is more difficult in democratic regimes since they are all more or less committed to respecting judicial independence.

Thus it would be a mistake to treat the issue of judicial independence as a problem faced only by authoritarian or totalitarian regimes. In modern states everywhere, judges are governmental officials. In democracies, both the law and the constitution are understood to be products of popular will. Courts everywhere are likely to be affected by, shaped by, and at times in conflict with larger governmental processes in ways that raise issues about the independence of the judiciary. Indeed, since much of the legitimacy of modern government is closely tied to a belief in majoritarian principles and to the rule of law, conflicts between government and courts are all but guaranteed in all sorts of political regimes. This complex relation between law and government, adjudication and politics, and courts and governmental regimes is addressed in the sections below.

2. Judicial Independence

The quest for judicial independence in common law and civil law systems has taken quite different forms, though the differences may be due less to the particular legal forms than to the political systems in which they are situated. With the rise of absolutist states in early modern Europe and continuing well into the twentieth century, the judiciary was strongly integrated into the machinery of government and courts were well-known as arms of the ruling regimes. With the rise of support for constitutional democracy in Europe, reformers sought to institutionalize the principles of the rule of law and judicial independence. One of the main objectives of constitutionalism is ‘to limit the arbitrary exercise of power and make it legally accountable’ (Sartori 1987). Although the rule of law is embraced in all constitutional systems, it has taken quite different forms. In countries with traditions of strong states (which historically have drawn their judiciaries into the service of the state), judicial independence has been pursued by integrating the judiciary into the structure of the civil service, by developing comprehensive codes of law, so that laws are understood as bureaucratic-like rules, and by characterizing judges as technical experts. Judges are free to pursue their duties, but within these severe constraints. This conception of the separation of powers and judicial independence assumes the primacy of the legislature; the legislature represents popular will, and courts play a subordinate although independent role in finding facts and applying rules. Thus in strong states, judicial independence is purchased at the price of a narrow conception of the judicial role.

One can see this in the judiciaries of countries with a civil law tradition, where law is understood as a set of technical rules and judges are considered to be technicians (Merryman 1985). And one can see it in some authoritarian states, where judges have sought to protect themselves by defining their roles narrowly and by insisting on strict interpretations of the law. But where the law involves politically salient issues— such as labor relations or economic regulations— governments everywhere are likely to remove jurisdiction from ordinary courts and establish specialized tribunals more directly responsive to political controls to deal with disputes. Thus in all countries, a large group of disputes between citizens and the state do not fall under the jurisdiction of independent courts but are assigned to specially created administrative tribunals that are more responsive to governmental direction. Similarly, issues of constitutional interpretation and judicial review, i.e., the power of courts to declare actions of other branches of government unconstitutional, have generally been removed from ordinary courts and assigned to more politically responsive bodies. As a result, many disputes between citizens and the state do not fall under the jurisdiction of ordinary courts, but are instead assigned to special administrative tribunals responsive to governmental direction. Thus, in disputes between individuals which are not likely to raise political controversy, judicial independence is protected, but where issues which may be politically charged, a more politically responsive judicial institution has been established. In a variation on this theme, Damaska has argued that, in regimes with a tradition of a strong or activist state, courts are designed and expected to implement government policy (1977).

In common law countries with traditions of weak states, judicial independence has been protected in a quite different way. Ironically, such common law political systems tend to foster ‘strong’ courts. Under the common law, the judiciary—and indeed, the entire legal system—has been understood as something distinct and separate from the state. The idea of the rule of law incorporates more than the belief in constitutionalism (i.e., that government officials are constrained by and must act within the law). Rather, it envisions a legal system in which law itself is separate from and independent of government. In these countries the independence of law is protected not so much through a careful civil service-style judiciary and minutely crafted legal codes, but through a robust legal profession and with close associations with the judiciary. Although here too judges are officials of the state, they are also regarded as an integral part of civil society and are closely associated with an autonomous legal profession (Halliday and Karpik 1998). Con-stitutionalism and the rule of law are understood not only as procedural constraints on the government; they are external limits on the state as well. Under such a system, courts are also likely to have judicial review. Ironically, this conception of the limited state produces a strong judiciary and an expansive notion of judicial independence (Damaska 1986).

It is important to underscore some of the salient differences produced by these two conceptions of courts and of judicial independence. On the European continent, independence is secured by subordinating the role of judges to the democratic principle—the will of the people expressed through parliament—and by insisting upon detailed codes so that judges have no need to make law but only to apply it. Typically this is reinforced by a career judiciary whose initial selection and subsequent promotions are based on seniority or merit. In contrast, common law systems entrust substantial law-making powers to the courts, since the law itself is conceived as something independent of the state and politics. Although there is an admitted political feature to judicial selection, judges are recruited from senior members of the bar, continue to maintain close ties to the bar, and are not dependent upon political authorities for support. Countries elsewhere have often adopted a hybrid of American-like and Continental institutions, though in all but former British colonies, the result has been much closer to civil law than common law style structures. The differences between civil law and common law systems are familiar to anyone with some exposure to comparative law. Yet these differences only identify central tendencies; legal systems are too varied and too complex to be divided into any such neat categories. For instance in continental systems, even the most comprehensive code is not likely to anticipate all problems that may come within its scope; as a result a judge may have to make law to fill in the gaps. Similarly, law-making in modern common law countries is no longer primarily judge-made; modern law everywhere is increasingly statutory and administrative. Moreover, since the late twentieth century, the independence of civil law judges has been strengthened. In many countries, the government no longer controls judicial careers and judges have begun to play a more active role in law-making.

Furthermore, judicial independence—of either variety outlined above—is much more likely to occur in regimes with competitive political parties. Almost everywhere, one-party or predominant-party states have constrained the independence of the judiciary and sought to use it for their own political purposes. Conversely, countries with competitive parties which alternate in controlling the government or where political parties are weak (e.g., Italy and Israel in the late twentieth century) are more likely to have in- dependent judiciaries. Although all political victors may be tempted to convert the judiciary for their own use, those knowing that they may hold office only temporarily may resist the temptation in order not to jeopardize their long-term interests. Recognizing the harm that each party could impose on the others, parties in competitive political systems all have an incentive to maintain an independent judiciary (Landes and Posner 1975).

3. The Business And/organization Of Courts

The popular image of trial courts is that they try cases and resolve conflicts. But a careful examination of the process of adjudication reveals a more complex picture. The vast majority of all cases disposed of by courts—perhaps as many as 98 percent— are resolved by the parties themselves, without a full-dress trial. Indeed, in many cases, there is not even any real controversy. In civil cases, court filings are often treated as signals to the opposing party that the other person is serious about pursuing his or her grievance. This is often enough to precipitate serious negotiations and resolution of the legal conflict. Similarly, in criminal cases in both civil law and common law countries, most matters are disposed of without sustained judicial involvement, through unilateral prosecutorial decisions to drop charges, plea negotiations, or simply pleas of guilty. Indeed, in many countries, vast numbers of lesser criminal cases are disposed of through the mail without even a single court appearance by the accused (Feeley 1979, Felstiner 1979). In many of these situations, some combination of the prospects of the cost, time, and embarrassment of a trial is enough to encourage the parties to negotiate a settlement in the shadow of the courthouse (Mnookin and Kornhauser 1979). In such situations, the court may have been actively involved in the preliminary stages of the conflict and may even have handed down important pretrial rulings dealing with the scope of discovery, the admissibility of evidence, and the like. Such rulings provide cues to the participants as to the likely outcome of their case and thus precipitate negotiations and settlement rather than a prolonged trial process. In such cases, although the court did not formally resolve the conflict, it did nevertheless play an important role in its resolution.

The reasons for negotiations in the shadow of the law are fairly obvious. Filing a case often provides each party with the first opportunity to determine the strength of the opposition. This experience leads weak plaintiffs to drop their cases or to try to settle, and weak defendants to admit liability quickly or to settle. Cases that continue to trial are likely to be close cases in which both parties believe that they stand a good chance of winning. Economists have formalized this model, hypothesizing that, all things being equal, defendants would win (or lose) just as often as plaintiffs in full-fledged trials (Priest and Klein 1984). Although uncertainty, changes in legal rules, and the degree to which an initiated case is controlled by the court can affect this dynamic, in the long run a stable equilibrium should prevail.

At the outset of this research paper, we noted that one of the problems of adjudication, in contrast to mediation and arbitration, is that the parties neither resolve their own dispute nor select the third-party decision-maker and that this can generate an aura of illegitimacy around the judicial process. If true, this may account for the ubiquitous tendency for parties to settle in the shadow of the courthouse and for courts to foster settlement (Shapiro 1981). Despite this, the tiny fraction of cases that go to full-dress trial provides the public with its perception of the nature of courts and adjudication.

There are still other types of adjudication which for all practical purposes do not involve any real disputes at all. In these situations, rather than adjudicate a controversy, the court simply ratifies or oversees a legal transaction that has been made elsewhere, and often hears no contested issues. Thus for instance, in many countries, trial courts are required to certify divorces, even if they are no-fault. Similarly, trial courts are often required to certify changes of name, uncontested child custody arrangements, conveyances of property, probate and bankruptcy proceedings, and to oversee a host of administrative matters. Many of these actions should be understood more as notary-like activities than as adjudication.

In both civil and common law systems, trial courts are divided into two levels: lower courts which handle minor issues and upper-level courts which are reserved for a handful of more important matters. Although a substantially higher proportion of cases are resolved without formal or full-fledged trial in the lower courts, most issues reaching upper level courts are resolved through negotiations or uncontested proceedings as well. Indeed, when all negotiated settlements and uncontested proceedings at both levels of courts are considered together, one finds that only a tiny portion of cases in trial courts of any sort are resolved through full-fledged adjudication (Trubek et al. 1983). One should however bear in mind that adjudication is a process that involves several steps. A party to a case may vigorously contest a pretrial ruling over, for example, the admissibility of evidence. Depending on the outcome of this ruling, it may then decide to drop the case or to admit liability. Although disposition is formally recorded as a dropped case or a negotiated settlement, this outcome was in fact the result of an adjudicated decision. This is not at all uncommon. For instance, in the United States, many so-called plea bargains in criminal cases take place only after a vigorously contested probable cause hearing or a hearing on a motion to suppress evidence. As trial procedures have become more complex over the past two centuries, much of the most important adjudication has come to take place in the pretrial process.

All modern judicial systems provide for some system of appeals. The scope of reasons for appealing a case varies widely in different legal systems, but it is safe to say that a primary purpose of appellate courts is to listen to those who lost at trial and those who claim that the trial court made a mistake. In some legal systems, an appellate court is restricted to consider only claims that the trial court erred in interpreting the law; if it finds an error, it must overturn the trial court’s verdict or remand the case to the trial court for further consideration. In other systems, the appellate court can act like a trial court, reconsidering facts not properly considered at the original trial or examining additional facts brought to light since the trial. Whatever their precise duties, appellate courts provide losing parties with an opportunity to ask another court to review the decisions of the trial court and to correct its errors. But in addition to correcting errors, appellate courts provide the judicial system with a way of overseeing and supervising the activities of lower courts. Appellate courts provide the political regime with a way of checking the independent powers of a highly decentralized system of trial courts. That is, by securing appellate court judges sympathetic to its aims, the ruling regime can gain some assurances that trial courts will act within bounds of toleration. This is an additional reason why civil law systems—that is active, policy-implementing states—tend to have more appeals (Damaska 1977).

4. Conclusion

Adjudication is a triadic structure, involving two disputants and a judge who is charged with imposing a solution on the parties. The process is inherently unstable; the losing party is likely to feel that the judge sided with the other party. In modern societies, where judges are government officials and the state is often a party in a case, the problem of judicial legitimacy can be considerable. Courts have responded to this inherent instability in two ways. They have fostered judicial independence through the formalism of the rule of law (‘Don’t blame me, blame the law!’) and they encourage negotiations in which the contesting parties reach settlement on their own accord. As we have seen, judicial independence can take quite different forms; in civil law countries, it has led to judges being perceived and perceiving themselves as highly circumscribed civil servants ‘applying the rules’ made elsewhere. In other countries, perhaps most notably some common law countries, judicial independence means primarily judicial autonomy from the state.

In all countries, however, courts tend to encourage parties to arrive at consensual or negotiated outcomes so that they do not have to impose a solution upon the parties. A cursory look at judicial statistics around the world reveals that courts are fairly successful at this. The overwhelming bulk of all cases, of all types, are resolved short of full-fledged adjudication. However, such figures should not be interpreted to mean that the courts are irrelevant or play only a small role in this process. Legal claims are often resolved in the shadow of the courthouse and against looming alternative of a full-fledged trial. Furthermore, they are often settled only after a court has issued a preliminary ruling that has signaled its view of issues and hence a possible outcome.

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