Courts

I INTRODUCTION

Courts, a branch of government established to administer the civil and criminal law. The term “court” is also applied to the international tribunals intended to provide for the resolution of law of controversies among governments, namely, the Permanent Court of International Justice, established by the League of Nations after World War I, and the International Court of Justice, established by the United Nations after World War II.

Courts are classified in many ways. Among the more usual general classifications are courts of record and courts not of record; courts of superior jurisdiction and courts of inferior jurisdiction; courts of first instance and appellate courts; and civil courts and criminal courts. In courts of record, the proceedings are recorded completely; no detailed record is made of the proceedings in courts, not of record. Courts of superior jurisdiction often called higher courts or appellate courts, are generally those to which appeals are made from decisions of courts of inferior jurisdiction, referred to as lower courts or courts of the first instance. Civil and criminal courts deal with cases arising from infractions of the civil law and the criminal law, respectively. Courts with special, limited jurisdictions are known by the names of those jurisdictions. For example, probate or surrogate’s courts are tribunals dealing with the probate of wills and the disposition of estates. The judicial organs of military establishments are called military courts. They have jurisdiction over infractions by military personnel. Admiralty courts have jurisdiction over cases arising from maritime contracts and from violations of maritime law. The Court of Protection administers the affairs of those incapable of doing so for themselves. Other courts are designated by the territorial limits of their jurisdictions.

II EARLY COURTS

The recognized existence of even so-called primitive courts implies a relatively high degree of social organization and the need for systematic adjudication of disputes on the basis of established customs and consciously formulated rules of social conduct. Archaeologists and anthropologists have established the existence of courts in simple societies over wide areas of Asia, Africa, and Europe; courts were not as widespread among Native Americans. Primitive courts formed part of a complex social structure in which administrative, judicial and religious functions were intermingled. These courts were held in the open or in religious temples. More often than not, the judges were priests. Those who attended were considered part of the court, whether or not they had an immediate interest in the proceedings or in the judgments rendered. The proceedings consisted largely of rituals designed to secure the redress of grievances presented by individuals against other individuals.

In the highly developed civilizations of antiquity, notably those of Assyria and Egypt, judicial and executive functions were undifferentiated and were centralized in the monarch as head of state. Insight into the structure and functions of Babylonian courts of the 18th-century bc was obtained when the ancient legal document known as the Code of Hammurabi was discovered early in the 20th century. A highly developed judicial system also existed among the ancient Hebrews.

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In the judicial system of ancient Athens, a unique feature, introduced by the lawgiver Solon in the 6th-century bc, was the right of aggrieved litigants to appeal the decisions of magistrates to the people of Athens, assembled as a heliaia (“public assembly”). In later years, these assemblies, referred to as heliastic courts, became courts of first resort, presided over by magistrates who prepared cases for trial. The heliastic courts subsequently became unwieldy and were divided into sections called dicasteries.

The evolution of courts in ancient Rome was marked by the development of a complex structure in which criminal, civil, and other jurisdictions were differentiated and exercised by separate courts and officials. Violations of criminal law were prosecuted by the state; higher and lower courts were organized; the right of appeal was juridically guaranteed, and a corps of professional jurists was established for the first time in the history of Mediterranean civilization. After Christianity became the state religion of Rome, the ecclesiastical courts, previously established by Christians who had refused to have recourse to pagan courts, became a part of the Roman legal system. As the Roman Empire disintegrated, the ecclesiastical courts survived and assumed jurisdiction over secular affairs.

III WESTERN EUROPEAN TRIBUNALS

Medieval courts developed from the tribal courts of the Germanic peoples, whose highest judicial authorities were the popular assemblies that met regularly throughout the year. The tribal judges supervised the proceedings and executed the judgments rendered by the assemblies. During the development of the Germanic tribal organization into territorial states, the tribal courts underwent a corresponding evolution, increasing in number and becoming differentiated. Among the new features of this Teutonic system were a royal court, presided over by the king and modelled on the Roman system of courts; special lower courts, under the control of royal officials called Grafen, which handled minor matters; and, later, a corps of permanent lay judges, with power to render judgments.

In the 8th century, when the Germanic territorial states were part of the realm of Charlemagne, the Teutonic judicial system experienced a further significant development: the practice, initiated by Charlemagne, of dispatching royal commissioners to examine the functioning of local courts and, when necessary, to supplement the justice they dispensed. In this innovation were the seeds of three later important legal developments: assize courts, circuit courts, and a central legal authority. This innovation was adopted by other feudal monarchs in their struggles with the landed nobility, who controlled the manorial, or seignorial, courts.

When the Normans conquered England in 1066, they imposed the Carolingian judicial system on the Anglo-Saxons. In the long struggle between the king and landed nobility that ensued, one of the principal weapons of the Crown was the Curia Regis (King’s Court), which was held wherever the royal household was situated. The principal judicial strongholds of the nobility were the manorial courts, chiefly the court’s baron and courts leet. Judicial supremacy was eventually won by the Crown, and, since the reign of Edward I, in the 13th century, English courts have been organized on a centralized basis.

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Before this victory of the Crown, however, King John had been compelled in 1215 to sign Magna Carta, which initiated the gradual separation of judicial from executive and legislative governmental powers. The terms of this charter of liberty established the Court of Common Pleas as a court of a fixed location to try cases initiated by commoners against other commoners. The process of separation continued during the reign of Edward I with the establishment of the Court of Exchequer as a tribunal having exclusive jurisdiction over revenue cases arising out of unpaid debts to the Crown, and the establishment of the Court of King’s, or Queen’s, Bench as the supreme appellate tribunal of the realm, presided over by the monarch. The Court of King’s, or Queen’s, Bench was also invested with original jurisdiction over both civil and criminal cases and thus encroached on the jurisdiction of the Court of Common Pleas. In fact, the jurisdictions of all three courts overlapped and were not entirely differentiated until much later. These courts eventually became bulwarks in the defence of civil and political liberties against the Crown.

Another momentous innovation during the reign of Edward I was the provision for seeing justice done in situations in which the common law failed to afford a remedy to aggrieved litigants. This supplemental system of justice was administered by the Crown through Lord Chancellor and was called chancery, or equity, jurisprudence.

In the centuries after the signing of Magna Carta, Parliament acquired appellate jurisdiction over both civil and criminal cases. This function was subsequently confined to the House of Lords and has survived to the present day. In 1701, Parliament enacted legislation establishing tenure of office for judges and made their removal from office conditional on the assent of Parliament, thus completing the separation of judicial from executive and legislative governmental powers. Like many other features of the English judicial system, this separation of powers was incorporated into the courts of the New World.

IV LATER DEVELOPMENTS IN THE BRITISH SYSTEM

Administrative and structural changes in important but secondary features, such as those wrought by the Judicature Act of 1873, have been made. This act, which came into effect in 1875, preserved the role of the House of Lords as the chief appellate tribunal of England and Wales and consolidated all the superior civil courts into a Supreme Court of Judicature with two principal branches: the Court of Appeal, the highest appellate court below the House of Lords, and the High Court of Justice. The latter tribunal comprises three divisions: Chancery; King’s, or Queen’s, Bench; and Family (formerly Probate, Divorce, and Admiralty). Enactment of the Criminal Appeal Act of 1907 established the Court of Criminal Appeal as the highest appellate tribunal after the House of Lords in criminal cases. Besides the superior courts, the judicial system of England and Wales includes many lower courts organized into geographical regions known as circuits. The highest civil court in Scotland is the Court of Session, and the highest criminal court is the High Court of Justiciary. Appeals may be taken from these courts to the House of Lords.

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V OTHER MODERN DEVELOPMENTS

In France, the development of the judicial system after the break-up of the Carolingian Empire was similar to that in England: both involved the vesting of central legal authority in the Crown after a protracted struggle with feudal manorial courts. The essential features of the judicial system now in effect in France were established after the French Revolution of 1789 by the Code Napoléon. This system includes lower courts of wide jurisdiction, intermediate courts of appeal, a court to resolve jurisdictional conflicts among courts, and a supreme appellate tribunal called the Court of Cassation. Many European and Latin American judicial systems are modelled on that of France.

In the Islamic world, the Koran is the source of Shari’ah law. Traditionally justice has been dispensed by specially trained priests in conjunction with the king, or sultan. In the 20th century, this system still prevails in such Islamic countries as Yemen and Saudi Arabia. In Turkey, however, executive, legislative, and judicial functions have been separated, and a judicial system similar to those of Western countries has evolved.

In other Middle Eastern and Asian countries that have attained independence since World War II, notably Myanmar (Burma), Sri Lanka, India, and Israel, the courts also operate similarly to those of the West, that is, as relatively independent institutions within a parliamentary framework.

The world’s first International Criminal Court (ICC), located in The Hague, Netherlands, began work in 2002. Ratified by 100 countries (as at March 2006), the court is empowered to try crimes committed after July 1, 2002, on the territory of a state that has ratified the treaty, by the citizen of such a state, when the UN Security Council has referred a case to it. However, the withdrawal of the United States from the treaty establishing the tribunal and delays by other key nations to sign or ratify the treaty, at the time of the ICC’s launch, were considered to have undermined the court’s credibility.

Reviewed By:
Simon Levene