Courts

A court is a judicial institution created to decide legal disputes authoritatively. Modern courts are usually independent of other branches of government, but in historical perspective many of the attributes associated with judicial independence, legal professional competence and objectivity were absent or considerably modified during the many centuries of judicial institutional development which preceded the emergence of courts in the variety of contemporary legal systems of the world. Martin Shapiro has correctly observed that analysts of the attributes of courts frequently employ some sort of a model of an ideal judicial system (Shapiro 1981:1). Of these, Max Weber's conceptual model is seminal. In accordance with the major elements of his ideal model, a court will be staffed by specially trained judges whose professional integrity and independence is ensured by fundamental constitutional safeguards. Such courts are integral parts of bureaucratic systems designed to ensure predictability and rationality. Historians such as Charles Ogilvie have traced the origins of one of the major European families of law to monarchical influence (Ogilvie 1958). Thus law common to the realm in England was not only judge-made law; it was the monarch's law. In contrast, Weber classified courts in relation to three basic types of governing regimes—traditional, charismatic and ‘legal’ or constitutional. In Weber's view, courts within each of these categories would be organized in accordance with the nature of the governing regime. Law in a traditional regime would originate in custom, be administered in courts staffed by judges chosen ascriptively, and render decisions in accordance with custom. In a charismatic regime, law would originate in the will of a charismatic leader and decisions would conform to the particularistic approach of such a leader. Conversely, in a constitutional regime, law would originate objectively on the basis of impartial constitutional or statutory standards, in courts staffed by judges chosen on merit after extensive professional training, and decisions would be rendered objectively upon the basis of universally applied rules and fair procedures (Trubek 1972:735).