Rights In City-States Research Articles

Off Her Throne and Unarmed: the Humble, yet Noble Visage of Justice and Her Restless Servants

Abstract The title should not sound too iconoclastic to jurists’ ears. At least not to expert procedural lawyers, mindful of the scholarly debate on the notion of justice and the goal of process (especially of civil process) arose in Germany and Italy, at the end of the nineteenth century. As the raising demand for jurisdictional performance posed new challenges to the judicial administration of those States, scholars were confronted with issues such as “unjust” decisions, the perpetuation of judicial mistakes in res judicata judgments, and the principle of party disposition in the choice of appealing wrong decisions. Such a profound and introspective debate, came to put into question even centuries old dogmas, such as the olden maxim “res judicata pro veritate habetur.” Following that foundational juridical debate, the conventional “tools” the female figure of Justice is often displayed with, be they depicted in a XV century engraving or in a XX century sculpture outside a courthouse, A remarkable, though too partial attempt to collect images of Justice from law books printed between 1497 and 1788, may be found in Judith Resnik, Dennis Curtis, Representing Justice: Invention, Controversy and Rights in City-States and Democratic Courtrooms (Yale: Yale University Press, 2011). The authors rather focus on a “political” detail – whether Justice is shown as blindfolded or not – which, at different times, was meant either as a critique of arbitrary justice or as a symbol of Justice’s impartiality. do appear to modern observers as nothing but misleading attributes of Justice. In this article, we propose to enquire into the origins of the conceptual trompe l’oeuil attached to the iconographic imagery of Justice; to demonstrate how the widespread representation of Justice in figurative arts is ultimately flawed by political overtones and distant from the truly essence of the jurisdictional phenomenon; and to show how a few exceptions of artworks and famous literary trials come much closer to grasping the essence of Justice through due process, and are way more instructive than its deified and standardized allegory.

Representing justice: Invention, controversy and rights in city-states and democratic courtrooms

Representing justice: Invention, controversy and rights in city-states and democratic courtrooms

Review of <i>Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms</i> by Judith Resnik and Dennis Curtis (Yale University Press, New Haven, 2011)

“Monumental” is the best way to describe Judith Resnik and Dennis Curtis’s tome, Representing Justice, which features over 250 images depicting the rich, complex, and often fraught relationship between art and adjudication. The reader is invited to join the authors through their inquisitive meanderings through cities, palaces, museums and courtrooms to uncover how cultures and societies have translated ideas about justice into art. Far from simply being a paean to justice-themed art, however, the book uses the plasticity of justice as a visual symbol to critique our single-minded focus on justice as a “first virtue.” By fixing our gaze too tightly on justice, we have lost sight of the other virtues required of institutions that govern complex, diverse societies that aspire to democratic self-rule. Despite their worries about justice’s ultimate inadequacy, however the authors’ tone is nostalgic and reverential. They ultimately lament the disappearance of traditional courtrooms in favor of alternative modes of dispute resolution. Critics may ask whether the two main lines of critique in the book — of our overreliance on the idea of justice on the one hand, and of the gradual obsolescence of the public ideal of justice as a result of alternative dispute resolution mechanisms, on the other — pull in separate directions, but no critic can fail to be dazzled by the artistic and philosophical scope of the book.

Inventing democratic courts: A new and iconic Supreme Court*

The Supreme Court’s building was designed to look old – as if it had been in place since the country’s founding, rather than opening in 1935. The work of judges – deciding disputes – also appears as if it were a continuous practice from ancient times. But the point of this Lecture, which builds on our book, Representing Justice: Invention, Controversy and Rights in City-States and Democratic Courtrooms, is to show that important aspects of adjudication which today seem intrinsic are, like this building, artifacts of the twentieth century. Simply put, in ancient times, judges were loyal servants of the state; audience members were passive spectators watching rituals of power, and only certain persons were eligible to participate as disputants, witnesses, or decision makers. In contrast, today, judges are independent actors in complex and critical relationships with the government and the public. Moreover, everyone – women and men of all colors – are entitled to be in every seat in this courtroom, including the bench. Democratic norms changed adjudication by recognizing all persons as juridical actors who could sue and be sued, and by requiring judges to welcome them all as equally entitled to dignified treatment. Likewise, disputants must treat each other as equals, as reflected in practices, such as the contemporary obligations to exchange information (discovery and disclosure) to facilitate participatory parity. The constitutional mandate that courts operate openly demonstrates to the public the capacity to have civil and disciplined exchanges despite deep disagreements. Open courts also endow the audience with the ability to learn and the authority of critique. Court judgments at both trial and appellate levels apply and develop norms and regularly spark debate, sometimes prompting new lawmaking by elected officials. The map of the development of democratic adjudicatory practices could be drawn through discussing many of the Supreme Court’s decisions – insisting on the independence of judges, the equality of all persons, public access to courts, and fair decision making. We add to that analysis by inviting consideration of how the designers of the Supreme Court’s building – and others before them – used imagery to inculcate norms about what judges should do. By decoding what carvings adorn the courtroom and by placing the history of this building in the context of the changing contours of both constitutional law and the federal court system, much can be learned about the political and social transformations that produced – indeed invented – courts as we know them today. Those innovations are what make the Court’s building iconic. When the courthouse opened in 1935, some critics complained that its Grecian portals were out of sync with twentieth-century modernism. We suggest instead that the building be read as Janus-faced. The courthouse architecture and imagery looked back to enlist the authority of lawmakers long gone. Yet, the building’s interior also marked the Court’s new legal authority to control its own docket, the Chief Justice’s ascendancy over the federal judicial system, and the special role that for media would come to play in shaping understandings of the judiciary. The grand entry with its imposing facade forecast the Court’s role thereafter – as a national icon – of the country’s commitment to “equal justice under law,” words inscribed above the doorway in 1935, but whose meaning derives from the Supreme Court’s work in the decades that have followed.

Inventing Democratic Courts: A New and Iconic Supreme Court

Inventing Democratic Courts: A New and Iconic Supreme Court JUDITH RESNIK AND DENNIS CURTIS* The Supreme Court’s building was designed to look old—as if it had been in place since the country’s founding, ratherthan opening in 1935. The work of judges— deciding disputes—also appears as ifit were a continuous practice from ancient times. But the point of this lecture and of our book, Representing Justice: Invention, Contro­ versy and Rights in City-States and Democratic Courtrooms,1 is to show that important aspects of adjudication that today seem intrinsic are, like this building, artifacts of the twentieth century. Simply put, in ancient times,judges were loyal servants ofthe state; audience members were passive spectators watching rituals of power, and only certain persons were eligible to participate as disputants, wit­ nesses, or decision makers. In contrast, judges today are independent actors in complex and critical relationships with the government and the public. Moreover, everyone—women and men of all colors— are entitled to be in every seat in the courtroom, including the bench. These are the changes that prompted our choice of the phrase “Inventing Democratic Courts” for this essay’s title. We use the word “democratic” not in the narrow sense of majoritarian political processes; democracy is more than voting. Indeed, unlike some constitutional scholars who identify unelected judges as a problem in need of special explanation in democratic orders, we argue that adjudication can itself be a democratic practice—that how this Court has come to do its work reflects democratic ideals about interactions among disputants and between government and citizenry. Democratic norms changed adjudication by recognizing all persons as juridical actors who could sue and be sued, and by requiring judges to welcome them all as equally entitled to dignified treatment. Likewise, disputants must treat each other as equals, as reflected in practices such as the contemporary obliga­ tions to exchange information (discovery and disclosure) to facilitate participatory parity.2 The constitutional mandate that courts operate openly demonstrates to the public the capacity 208 JOURNAL OF SUPREME COURT HISTORY to have civil and disciplined exchanges despite deep disagreements. Open courts also endow the audience both with the ability to learn and the authority of critique. Court judgments at trial and appellate levels apply and develop norms and regularly spark debate, sometimes prompting new lawmaking by elected officials. The map of the development of demo­ cratic adjudicatory practices could be drawn through discussing many of the Court’s decisions—insisting on the independence of judges, the equality of all persons, public access to courts, and fair decision making.3 We add to that analysis by inviting consider­ ation of how the designers of this Court’s building—and others before them—used imagery to inculcate norms about whatjudges should do. By decoding what carvings adorn the courtroom and by placing the history of this building in the context of the changing contours of both constitutional law and the federal court system, much can be learned about the political and social transformations that produced—indeed invented—courts as we know them today. Those innovations are what make the Court’s building iconic. When the building opened in 1935, some critics complained that its Grecian portals were out of sync with twentieth-century modernism. We suggest instead that the building be read as Janus­ faced. The Court’s architecture and imagery looked back to enlist the authority of law­ makers long gone. Yet, the building’s interior also marked the Court’s new legal authority to control its own docket, the Chief Justice’s ascendancy as the chiefexecutive ofthe federal judicial system, and the special role the media would come to play in shaping understandings of the judiciary. The grand entry with its imposing facade forecast the Court’s role thereafter—as a national icon—of the coun­ try’s commitment to “equaljustice under law,” words inscribed above the doorway in 1935 but whose meaning derives from the Court’s work in the decades that have followed. Decoding the Walls The lawyers and the public who enter the Courtroom, like readers of the Court’s opinions, focus on the words of the jurists as they pose questions...

Re-Presenting Justice: Visual Narratives of Judgment & the Invention of Democratic Courts

This essay – and the thirty images included – reflect themes in Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms, in which we explored the relationship, over centuries, between courts and democracy. We argue that courts as we know them today are recent inventions. The constitutive elements – open access, independent judges authorized to sit in judgment of the state and to assess the fairness of their own as well as other decision-making procedures, equal and dignified treatment of all participants – are outgrowths of social movements that transformed the meaning of legal “personhood,” the idea of justice, and the obligations of government. Yet the new equality puts pressure on the visual displays within courthouses, often marked as such by a statute of the Virtue Justice. As women and men of all colors gained recognition as rights holders, entitled to sue and be sued, to testify, and to judge, a female figure of Justice, became less an abstraction and more a representation of a person. But who should decide how “she” – Justice – is to look? Once, elite groups of rulers and patrons controlled commissions – filling courthouses with portraits of elder statesmen along with the draped (or naked) female figure of Justice. In contrast, during the twentieth century, conflicts over Justice’s color and shape came to the fore. Protests, detailed below, erupted in the 1930s about a “mulatto” Justice in a federal courthouse in Aiken, South Carolina. The result was to put the image behind drapes. In contrast, in the same era, a mural on the Ada County Courthouse in Idaho displayed an “Indian” with hands tied behind his back and about to be strung up by gun-carrying men. Pressures of another kind are undermining the public and didactic practices of adjudication. Democracy has not only changed courts but also challenged them profoundly. Egalitarianism poses deep problems for polities that have thus far been unwilling to commit the resources that would support all the adjudicatory opportunities promised. As the ranks of rights holders expanded, nations responded not only by creating more judgeships and more courthouses but also by moving some forms of adjudication offsite, to administrative tribunals and to procedures that have come to be known by the acronym ADR – alternative dispute resolution. The resulting fragmentation and privatization of adjudication has profound implications for the democratic character of courts. The movement away from public adjudication is a problem for democracies because adjudication has important contributions to make to democracy. By democracy, we speak not of majoritarian political processes but rather of aspirations for lawmaking through egalitarian methods that foster popular input into governing norms and impose robust constraints on both public and private power. Furthermore, by courts, we focus on the quotidian activities of ordinary litigation rather than only on the outcomes of the highest judicial bodies. Constitutional scholars debate the legitimacy of judicial review in democracies, while we argue that adjudication itself is a democratic process, which reconfigures power as it obliges disputants and judges to treat each other as equals, to provide information to each other, and to offer public justifications for decisions, based on the interaction of fact and norm. Courts’ mandate to operate in public endows the audience – the public – with the ability and the authority of critique. Through such participatory parity, public processes both teach about democratic practices of norm development and offer the opportunity for popular input to produce changes in legal rights. The redundancy of various claims of rights enables debate about the underlying legal rules. The particular structural obligations of trial level courts have advantages for producing, redistributing, and curbing power in a fashion that is generative in democracies. Our account is not only a reconstruction of a many-century history of the idea of “courts” and a normative exploration of the utility of courts for democratic orders. Our aim is also to make plain the fragility and contingency of the twentieth-century project for which the word “court” has become a shorthand. While monumental in ambition and often in physical girth, the durability of courts as active sites of public exchange before independent jurists ought not be taken for granted. Like other venerable institutions of the eighteenth century – the postal service and the press – courts are vulnerable. The continuation of accessible court services for ordinary disputants seeking state assistance is far from assured.

Book Review: Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms, by Judith Resnik and Dennis Curtis. (New Haven: Yale University Press, 2011)

Book Review: <i>Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms</i>, by Judith Resnik and Dennis Curtis. (New Haven: Yale University Press, 2011)

Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms. By Judith Resnik and Dennis Curtis. New Haven: Yale University Press, 2011. 720 pp. $75.00 cloth.

Law & Society ReviewVolume 46, Issue 1 p. 199-201 Book Review Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms. By Judith Resnik and Dennis Curtis. New Haven: Yale University Press, 2011. 720 pp. $75.00 cloth. John Brigham, John Brigham University of Massachusetts, AmherstSearch for more papers by this author John Brigham, John Brigham University of Massachusetts, AmherstSearch for more papers by this author First published: 12 April 2012 https://doi.org/10.1111/j.1540-5893.2012.00477.xRead the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Volume46, Issue1March 2012Pages 199-201 RelatedInformation

Judging in Place: Architecture, Design, and the Operation of Courts

What can judicial architecture tell us about how courts function? In this essay, I examine Legal Architecture: Justice, Due Process, and the Place of Law (2011) by Linda Mulcahy and Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms (2011) by Judith Resnik and Dennis Curtis. I argue that both books develop an understanding of judicial architecture as a socially contingent form of communication. I relate this expressive theory of architecture to older arguments about design and construction articulated by poet and novelist Victor Hugo and architect Frank Lloyd Wright. I also briefly explore the connections between this developing “jurisprudence of what's real” and more conventional forms of law-and-courts scholarship.

Representing justice: invention, controversy, and rights in city-states and democratic courtrooms

By mapping the remarkable run of the icon of Justice, a woman with scales and sword, and by tracing the development of public spaces dedicated to justice-courthouses-the authors explore the evolution of adjudication into its modern form as well as the intimate relationship between the courts and democracy. The authors analyze how Renaissance rites of judgment turned into democratic rights, requiring governments to respect judicial independence, provide open and public hearings, and accord access and dignity to every person. With over 220 images, readers can see both the longevity of aspirations for justice and the transformation of courts, as well as understand that, while venerable, courts are also vulnerable institutions that should not be taken for granted.