Adjudication
Adjudication
I. Domestic AdjudicationDavid Fellman
II. International AdjudicationC. Wilfred Jenks
The articles under this heading deal with the role and processes of national and international judicial institutions. Further discussion of the relations between judicial and other political institutions is found under Judicial processand Judiciary. For more general themes see under International lawand Law.
I DOMESTIC ADJUDICATION
Adjudication is a method of settling controversies or disputes. Characteristically, it gives assurances that the parties involved will be able to participate by presenting proofs and reasoned argument. The function of adjudication is normally regarded as belonging to the law courts; although not all adjudication takes place in the courts, and not everything the courts do can be called adjudication.
Society has many methods available for the resolution of disputes. In a democratic system of government, many important issues are resolved by the people through voting. Individuals and groups often settle their disputes by negotiation and contractual agreement. Parents adjudicate disputes among their children. Legislative bodies occasionally exercise adjudicatory functions when they sit as courts of impeachment, and, in a larger sense, legislation is concerned with the resolution of controversies all the time. Many disputes are resolved through arbitration, as in the fields of labor relations, commerce, and, occasionally, in international relations. A vast amount of adjudication takes place in the regulatory administrative agencies. In the American system of government, such agencies handle far more adjudication, in sheer bulk, than do the courts. For example, the number of hearings in appeals cases held by the U.S. Veterans Administration Board of Veteran Appeals exceeds the total number of civil cases disposed of by all the federal district courts [seeAdministration, article onthe administrative process].
Functions of the courts
Although adjudication is characteristically a judicial function, courts are often involved in other types of activity. They perform managerial functions, for example, when administering bankruptcy laws, or probating wills, or supervising the enforcement of antitrust decrees. Such matters as the naturalization of aliens and the handling of divorces and other domestic relations questions involve mainly administrative responsibilities. In the United States, state judges often have the power of appointment to certain public offices or exercise licensing functions. State courts are obliged to assume whatever functions are assigned to them by the state constitutions. The federal courts, on the other hand, are authorized by article III of the United States constitution to hear “cases” or “controversies,” and this directive has been construed strictly by the Supreme Court to exclude other than adjudicative functions.
The disputes that courts resolve through adjudication arise between private parties, between private parties and public officials, and between public officials or public bodies. Characteristically, the disputes are adjudicated according to some general principle, or rule of law, and with settled and distinctive procedures that involve the presentation of proofs and reasoned arguments by the parties. Participation by the parties in this fashion is insured by formal rules embedded in an institutional framework, and the objective is to attain a result that will meet the test of reason. The judge to whom reasoned argument is made must be impartial, that is to say, free of bias or corruption, if there is to be any confidence in his decision. The issues that are tried by the judges in civil cases are claims of right resting upon some general principle, or rule of law; and in criminal cases the issues involve accusations of fault that also rest upon general rules.
Normally, courts lack the power to take the initiative; they must wait for parties to bring controversies to them, and thus their role is essentially passive. Since the judge must be impartial, it is preferable to leave the initiation of litigation to the interested parties. In an ultimate sense, courts even lack the power to enforce their decrees, for when a powerful group intransigently refuses to obey a judicial decree, the courts must depend upon the executive branch of the government for the muscle of enforcement. In addition, the courts depend upon the legislature for financial support and for most organizational matters.
Adjudication by courts involves several different functions: the establishment of the facts in controversy, the definition and interpretation of relevant rules of law, and the fashioning, if necessary, of rules of law. The establishment of the facts is controlled by the complex rules of evidence, which often vary among different jurisdictions in respect to such matters as the style of pleading or the admission of various types of evidence, such as hearsay. In the Anglo-American system of “accusatorial” justice, the facts in criminal cases are brought out through the presentation of evidence and through cross-examination by opposing counsel. In civil law countries, where the methods of “inquisitorial” justice prevail, the determination of the essential facts is largely in the hands of the presiding judge.
The discovery of the relevant rule of law that will control the resolution of the dispute is not always a simple or automatic process. Many statutes are ambiguous and permit judges to exercise a wide latitude of judgment. They must look into such matters as legislative intent, available precedents, and the reasonable meaning of words. Rules of construction may vary a great deal. Thus, courts tend to construe social legislation broadly, whereas it is customary to construe penal statutes strictly, since human liberty is involved. Nor are judges indifferent, in construing statutes, to the practical consequences that will flow from one interpretation or another.
Judicial lawmaking
Anglo-American common law, built up over centuries of experience on the basis of stare decisis, or following precedents, was developed by the judges in the course of deciding numberless cases. When an American court exercises the power of judicial review and declares a statute to be contrary to the constitution, it is obviously legislating. Thus, the Supreme Court made a legislative judgment, that is to say, it fashioned a new rule of law, when in Brown v. Board of Education of Topeka (347 U.S. 483, 1954) it decided that the equal protection clause of the fourteenth amendment forbade racial discrimination by force of state law in the public schools. The courts of other countries, for example, West Germany, Italy, France, Australia, and Canada, have similar judicial review powers. Furthermore, courts must occasionally decide what is usually known as the unprovided case, that is, a case for which there seems to be no established, or known, rule of law. In such instances, the courts will not shrink from deciding the case and will find a way of deducing some rule from existing rules or from a consideration of the facts of life and their social ends and purposes. Similarly, courts will find a way to deal with hardship cases, although often at the cost of legal uncertainty.
Whether judges actually make law, or merely discover and apply the law, is the subject of an old and lively controversy in Anglo-American jurisprudence. According to one point of view, courts do not make law but merely find and declare what the law is. Coke taught that the common law of England was the common custom of the realm, and Lord Hale took the position that judicial decisions were not law but only “evidences” of the common law. Based on these views, Sir William Blackstone maintained in his Commentaries on the Laws of England (1765–1769) that judicial decisions are not the common law, but only “the principal and most authoritative evidence that can be given, of the existence of such a custom as shall form a part of the common law.” He insisted that judges do not decide cases on the basis of private views; they are “not delegated to pronounce a new law, but to maintain and expound the old one” (Com., I, 69 in the 1811 edition).
This declaratory theory concerning the nature of the judge’s function has been rejected by the great weight of modern jurisprudential opinion. Jeremy Bentham argued that every judicial decision is lawmaking, even if the judge is merely following precedents, since even then his course of decision is one that he chooses to follow. John Austin believed that judges make law, and he ridiculed Blackstone for accepting “the childish fiction employed by our judges, that judiciary or common law is not made by them, but is a miraculous something made by nobody, existing, I suppose, from eternity, and merely declared from time to time by the judges” ([1861] 1873, II, §655). Sir Henry Maine also took this position. In The Nature and Sources of the Law ([1909] 1921, p. 283), John Chipman Gray argued that the “true view … is that the Law is what the judges declare”; and that statutes, precedents, the opinions of learned experts, custom, and morality are merely sources of law. This was the view of Oliver Wendell Holmes, who once said that “the prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean . . . by the law” ([1897] 1952, p. 173). At a much later date, however, Justice Holmes declared: “I recognize without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions” (Southern Pacific Co. v. Jensen, 244 U.S. 205, 221, 1917). ’President Theodore Roosevelt flatly asserted, in a message to Congress on December 8, 1908 (43 Cong. Rec., part I, p. 21), that “the chief lawmakers in our country may be, and often are, the judges, because they are the final seat of authority. Every time they interpret contract, property, vested rights, due process of law, liberty, they necessarily enact into law parts of a system of social philosophy; and as such interpretation is fundamental, they give direction to all law-making.” Justice Cardozo maintained in The Nature of the Judicial Process ([1921] 1960, pp. 26–28) that it is not true that judges only give effect to law, but that the judge makes law in an evolutionary, rather than a revolutionary, manner and has limited powers of innovation, considering “the bulk and pressure of the rules that hedge him on every side”.
While the declaratory theory has been rejected philosophically, there is plenty of evidence that it still; commands considerable support. English and American judges still assert that judges do not make law. When a new question is decided by a court, the judge will usually try to establish analogies with existing precedents, statutes, or constitutional provisions. He is apt to be very reluctant to admit to very much innovation. Similarly, when courts are authorized to exercise discretion, judges will often describe it as “judicial” discretion, meaning to suggest that they are not merely following a personal sense of right.
The assertion of the notion that judges do not make law may well have practical consequences. What, for example, is the effect of an overruled decision? If judges do not make law, but only discover and declare it, then it seems to follow that the newly announced rule of law was always the proper rule, thus giving a retrospective effect to the last decision. Similarly, a judicial decision declaring an act to be criminal, which was not so regarded in the light of decisions prevailing at the time it occurred, is not regarded as ex post facto, unlike a comparable statutory change, since judges only find or declare the law but do not make it. On the other hand, a judicial decision that affects the validity of a contract previously made is regarded as impairing the obligation of the contract, but this can be so only on the theory that judges do make law. It follows that the debate as to whether or not judges make law is not altogether academic in nature, and in many circumstances the theory prevails that gives the best result.
Sources of law
Where does the judge find the law for his case? What are his sources? Sometimes, of course, the answer is clear and obvious: the judge may find a plain and unequivocal rule to follow in a statute or in a constitution. But statutes and constitutions are often highly ambiguous, and in such cases the judge must fashion rules of law through a process of interpretation. Furthermore, there are vast areas of human activity that are untouched by statute or formal constitutional documents. Clearly, the process of decision by a judge involves the subtle interplay of many influences. He will consider the precedents, if such are available, or reason by analogy from previous decisions. He will take into account the customs of the community, considerations of social welfare, ideals of justice and morality, the usages of the trades, markets, and professions, and the course of historical experience. On some points, “a page of history,” Justice Holmes declared, “is worth a volume of logic” (New York Trust Co. v. Eisner, 256 U.S. 345, 349, 1921). Back of the precedents and basic juridical conceptions, Justice Cardozo said, “are the habits of life, the institutions of society” ([1921] 1960, p. 19). Basically, Justice Holmes maintained, “the secret root from which the law draws all the juices of life” is a conviction as to what is expedient for the community; every important principle developed by litigation “is in fact and at bottom the result of more or less definitely understood views of public policy” ([1881] 1963, p. 35). Similarly, Justice Cardozo thought that the greatest single force behind the law is “the power of social justice.” He asserted that “the final cause of law is the welfare of society” (p. 66). But Justice Cardozo also recognized that “deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the man, whether he be litigant or judge” (p. 167). Furthermore, he emphasized that everyone has an underlying philosophy of life, “which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals” (p. 12).
In short, judges are influenced by many forces: the customs of the community, prevailing ethical principles, the dictates of logic, the push of history, and considerations of utility and expediency. They are also influenced by professional factors: the habits of mind of lawyers, the criticisms of a learned profession, and the nature of law, such as its concern for uniformity, impartiality, logical consistency, and stability.
The role of precedents
The place of precedents in the adjudicatory scheme of things involves a number of important considerations. Normally, judges feel obliged to follow precedents. Clearly, stare decisis gives to the law needed elements of certainty and predictability. It adds reliability to the administration of law and offers assurances of equality and uniformity of treatment to litigants. It also preserves the values inherent in the judicial experience of the past. Furthermore, as Sir Frederick Pollock once pointed out, where a line of decisions has been accepted as law for a long time, and has been acted on by many persons, reversal of the rule, even though it may have been originally founded on a mistake, “might well produce an amount of inconvenience greater than any advantage that could be expected from the restoration or establishment of a rule more correct in itself” (Pollock [1896] 1918, p. 327).
Sir William Holdsworth has explained that the modern theory of stare decisis began to develop at the end of the fifteenth century, when changes in the system of pleading shifted attention from oral debate in court to the formulation of decisions on the basis of written pleadings studied by the judge before the case came to court (1934, p. 180). The rule that judges are bound to follow precedents has always had a high place in English law and practice. Accordingly, precedents are strictly followed in Britain, and the House of Lords will not overrule previous decisions.
On the other hand, a more flexible attitude toward stare decisis prevails in the United States. “Whether it shall be followed or departed from,” the Supreme Court once observed, “is a question entirely within the discretion of the court, which is again called upon to consider a question once decided.” And it said to the lower court where the decision was being reviewed: “The Circuit Court of Appeals was obviously not bound to follow its own prior decision” (Hertz v. Woodman, 218 U.S. 205, 212, 1910). Justice Holmes declared that “it is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry iv. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past” ([1897] 1952, p. 187).
Of course, a U.S. Supreme Court decision on a federal question is binding upon all federal and state courts, but American legal doctrine has been fully sensitive to social, political, and economic change; and the Supreme Court has never regarded itself as being rigidly bound by its own decisions, particularly in the field of constitutional law, where large policy questions are likely to be dominant considerations. Thus, in a considerable number of great constitutional law cases, the Supreme Court has consciously rejected former precedents. (See, for example, The Legal Tender Cases, 79 U.S. 457, 1870; Brown v. Board of Education of Topeka, 347 U.S. 483–496, 1954.)
Adherence to precedent is, however, the rule in the other American courts. To be sure, only the reasoning bearing directly upon judgment carries weight, and judges do not feel bound to follow mere dictum. But precedents not only command respect; they also have a tendency to extend themselves along lines of logical development. They develop continuities, permit prediction, and by helping to insure fair and equal treatment they tend to create restraints upon arbitrariness. Since a judge must follow relevant precedents, for which good reasons have been advanced, he is obliged to give new and persuasive reasons to justify a different outcome.
Since even in English law it is recognized that some exceptions to the rule of stare decisis exist, we may conclude that the authority of a decision is not attached to the words used but to the principle necessary for the decision; it is only the ratio decidendi that really matters.
Hearings
The essence of adjudication is a hearing at which parties present proofs and reasoned argument. The sort of facts that are the object of inquiry at a hearing are facts about specific parties. In contrast, legislative facts are general facts relating to broad questions of policy and law affecting the general population or very large segments of it.
Legal necessity
No hearing is necessary, as a matter of legal right, for the determination of legislative facts, whether by a legislature or by an administrative agency, since legislators, administrators, and their staffs may have their own adequate knowledge concerning the facts. On the other hand, since parties are in the best position to know the facts of their particular situations, the determination of adjudicative facts requires a hearing. The hearing may be conducted either by a court or by an administrative agency, depending upon whether the proceeding involves mainly private or public interests.
The place of the hearing in adjudication is reflected in the holding of a New York court: “The act of an administrative or ministerial officer does not become judicial simply because it is necessary to use discretion and judgment in its performance. It becomes judicial only when there is opportunity to be heard, evidence presented and a weighing of the evidence and a decision thereon” (People ex. rel. Argus Co. v. Hugo, 101 Misc. 481, 168 N.Y.S. 25, 27 Sup. Ct. Albany Co. 1917).
The difference between adjudicative and legislative facts is reflected in two famous decisions of the Supreme Court of the United States dealing with taxation. In Londoner v. City and County of Denver (210 U.S. 373, 386, 1908), the Court ruled that when a state board of equalization raises the property assessment of a single taxpayer, he has a right to a hearing, and merely allowing him to file written objections will not suffice. The Court said that “a hearing in its very essence demands that he who is entitled to it shall have the right to support his allegations by argument however brief, and, if need be, by proof, however informal,” since the facts are adjudicative in nature. On the other hand, the same Court held that a hearing was not necessary where a city increases the valuation of all taxable property within its borders, since this is a general policy decision based on general information and ideas (Bi-Metalic Investment Co. v. State Board of Equalization of Colorado, 239 U.S. 441–446, 1915). In other words, the facts were legislative in character.
But even where the facts to be determined are adjudicative, a legal right to a hearing is not always recognized. Thus, a hearing may be dispensed with, at least for a period of time, where emergency action is necessary, or where inspection, or testing, or examination are suitable substitutes for hearings, as in the case of the inspection of an airplane. In addition, a hearing is often denied in cases involving certain types of privilege. Thus, the Supreme Court has ruled that an entering alien has no right to a trial-like hearing on the issue of whether his admission would be prejudicial to the best interests of the United States, since at best his entry is a matter of privilege and not of right (U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 1950; Shaughnessy v. U.S. ex rel. Mazei, 345 U.S. 206, 1953). Similarly, state courts generally hold that licenses to operate liquor stores, dance halls, pool halls, theaters, and the like, where the public interest in safety and morality is apt to be very great, may be revoked without notice of hearing, on the basis of the privilege doctrine.
On the other hand, the revocation of professional licenses, such as those of doctors and lawyers, must as a matter of law be preceded by a hearing following due notice.
Adjudication by administrative agencies tends to resemble adjudication by the courts. There are differences, of course, particularly in respect to the rules of evidence and in the degree of formality, but the resemblances are great; and as the administrative agencies mature, they tend to approximate more and more the procedures of the courts, partly as a result of legislation and partly as a result of pressures from the legal profession. Adjudication by arbitration is still another matter. Here the source of the power of the arbiter is generally the consent of the litigants, whereas the judge derives his power from government. Adjudication by a court has the advantage that the judge is less tempted to compromise, and his decision may be more acceptable because he seems to apply general rules he did not make and because he is surrounded by a powerful mystique. On the other hand, the arbitrator may exert greater effort than the judge in order to secure acceptance of the award, and the arbitrator is less bound by technical rules of procedure. In addition, he is often guided by the actual terms in the agreement to arbitrate.
Types of hearings
There are, in the courts, two different types of hearings. One takes the form of a trial, where evidence is presented, witnesses are cross-examined, and the tribunal makes its determination on the record. The other type of hearing essentially involves the presentation of arguments, as in appellate courts. The trial is designed to resolve fact issues, to assign facts to legal categories, and to apply rules of law to the facts. A hearing involving only argument is designed to resolve issues of law, policy, or discretion. Although a judge must limit his findings to the facts in the trial record, judges inevitably take judicial notice of some facts of general public knowledge; and they may make some decisions, not bearing on the immediate issues of the trial, on the basis of knowledge derived out of court, as in the collection of information bearing on the problem of the sentence (Williams v. New York, 337 U.S. 241, 1949).
Adversary proceedings
The rule prevailing in most American courts is that adjudication must involve a real controversy between adversary parties. An American Bar Association report has noted that “in whatever form adjudication may appear, the experienced judge or arbitrator desires and actively seeks to obtain an adversary presentation of the issues. Only when he has had the benefit of intelligent and vigorous advocacy on both sides can he feel fully confident of his decision”(Report 1958, p. 1161). This means that courts will not give advisory opinions (United States v. Evans, 213 U.S. 297, 1909), although state courts are obliged to do so if their state constitutions so provide. Furthermore, it should be noted that courts often give judgment for plaintiffs by default, where the defendant makes no appearance and offers no defense. This often happens in cases involving the collection of small retail debts, or the recovery of goods sold on conditional sales contracts, or the recovery of unpaid rents. These are not truly adversary proceedings, although that is the result of the defendant’s choice. Here the court is used to help in making collections by coercing defendants who make no defense and generally have no defense, either in fact or in law.
In addition, since courts deal only with real controversies between adverse parties, they decline to hear cases where the issues are moot, or premature, or too speculative and abstract to be ruled upon intelligently, or where the suit is collusive in character. Test cases are not necessarily improper, provided real issues are asserted by adverse parties; and American courts are willing to give declaratory judgments, since they include every element of a traditional case except for the appendage of a coercive decree (Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249, 1933).
The judge who presides over an adjudication should be properly qualified, and he should be impartial, which, among other things, means that he should have no direct, pecuniary interest in the outcome (Tumey v. Ohio, 273 U.S. 510, 1927). Although it is not always possible, as a general proposition it is desirable for the judge to rest his decision on the grounds argued by the parties. If the decision is completely outside the framework of argument and proofs presented by the parties, then their participation in the decision loses its meaning. This is least likely to occur where the relevant rules of law are fairly certain and well settled. There are some devices that help to achieve desirable results in this respect, such as oral argument, reargument, and the tentative decree accompanied by an order to show cause why it should not be made final. Furthermore, while a decision need not necessarily be accompanied by a statement of supporting reasons, reasoned opinions, generally speaking, are desirable and to be preferred, since they reassure the parties that their views were given attention.
Rules of procedure
While adjudication in courts is conducted according to rather complex and technical rules of procedure, the tendency in modern courts is toward simplicity and directness and away from technicality. Speaking of the Federal Rules of Civil Procedure, the Supreme Court said in Conley v. Gibson (355 U.S. 41, 48, 1957): “The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.” Indeed, Rule 1 of the Federal Rules of Civil Procedure provides that the rules are to be construed “to secure the just, speedy, and inexpensive determination of every action.”
Karl N. Llewellyn, in The Common Law Tradition (1960), listed a considerable number of factors that exert a steadying influence upon courts: law-conditioned judges, legal doctrine, known doctrinal techniques, the responsibility for justice, the tradition of the single right answer, opinion writing, review on a record made below, limited issues sharpened and phrased in advance, adversary argument by counsel, group decision making, judicial security and honesty, a known bench, general period style, and professional judicial office. The last he regarded as the most important of all. “The place to begin,” he wrote, “is with the fact that the men of our appellate bench are human beings. I have never understood why the cynics talk and think as if this were not so. For it is so. And one of the more obvious and obstinate facts about human beings is that they operate in and respond to traditions, and especially to such traditions as are offered to them by the crafts … they follow” (p. 53).
The limits of adjudication
Adjudication has its appropriate limits. It is not suited for the handling of problems that involve very many parties in a fluid state of affairs. Such problems are best settled in some other way. For example, problems involved in the allocation of economic resources are generally dealt with by methods other than adjudication, as in the case of the processes of collective bargaining or legislation. Courts are not equipped to exercise licensing functions, as in the awarding of transportation certificates or the allocation of radio and television wave lengths; nor are they equipped to undertake the affirmative direction of complex economic affairs, although they do get involved, on occasion, in connection with such matters as bankruptcy administration and the probate of wills. Adjudication is limited to the declaring of rights and duties and does not extend to situations and problems, such as the operation of the railroads, where analysis in terms of rights and duties is inadequate.
Adjudication is often subjected to many criticisms. It is said that the law is too uncertain, that the rules of evidence are too complex, that procedures seem mysterious to laymen, that legal rules are too intricate, that litigation is too expensive and too slow, that the courts are chronically congested, that newspaper publicity corrupts judicial processes, and that in criminal cases defendants are treated either too harshly or too leniently. While there is some truth in all these criticisms, at least at some times and in some places, nevertheless it can hardly be denied that there is a great deal of popular confidence in the judiciary as being honest, impartial, and objective. The predominance of case law as the main form of law has influenced legal education and has tended to emphasize the pragmatic qualities of the law. Judicial review has tended to focus attention upon underlying ethical, social, and economic values. The growth of administrative tribunals has given a broader scope and usefulness to the processes of adjudication.
David Fellman
[See alsoLegal reasoning; Legal systems.]
BIBLIOGRAPHY
Allen, Carleton K. (1927) 1964 Law in the Making. 7th ed. Oxford: Clarendon Press.
American Bar Association; and the Association of American Law Schools 1958 Professional Responsibility: Report of the Joint Conference. American Bar Association Journal 44:1159–1162; 1216–1218.
Austin, John (1861) 1873 Lectures on Jurisprudence or the Philosophy of Positive Law. Edited by Robert Campbell. 2 vols., 4th ed., rev. London: Murray.
Blackstone, William (1765–1769) 1922 Commentaries on the Laws of England. 4 books in 2 vols. Edited by William Draper Lewis. Philadelphia: Bisel.
Cardozo, Benjamin N. (1921) 1960 The Nature of the Judicial Process. New Haven: Yale Univ. Press.
Davis, Kenneth Culp 1960 Administrative Law and Government. St. Paul, Minn.: West.
Frank, Jerome (1930) 1949 Law and the Modern Mind. New York: Coward.
Frankfurter, Felix 1939 Law and Politics: Occasional Papers, 1913-1938. Edited by A. MacLeish and E. F. Prichard, Jr. New York: Harcourt. → A paperback edition was published in 1962 by Putnam.
Gray, John C. (1909) 1921 The Nature and Sources of the Law. 2d ed. New York: Macmillan.
Hart, Herbert L. A. 1961 The Concept of Law. Oxford: Clarendon.
Holdsworth, William S. 1934 Case Law. Law Quarterly Review 50:180–195.
Holmes, Oliver wendell (1881) 1963 The Common Law. Cambridge, Mass.: Harvard Univ. Press.
Holmes, Oliver wendell (1885–1918) 1952 Collected Legal Papers. Edited by Harold J. Laski. New York: Smith.
Holmes, Oliver W. (1897) 1952 The Path of the Law. Pages 167–202 in Oliver W. Holmes, Collected Legal Papers. New York: Peter Smith. → First published in Volume 10 of the Harvard Law Review.
Lawson, Frederick H. 1953 A Common Lawyer Looks at the Civil Law. Ann Arbor: Univ. of Michigan Law School.
Llewellyn, Karl N. 1960 The Common Law Tradition: Deciding Appeals. Boston: Little.
Murphy, Walter F. 1964 Elements of Judicial Strategy. Univ. of Chicago Press.
Patterson, Edwin W. 1953 Jurisprudence: Men and Ideas of the Law. New York: Foundation Press.
Pollock, Frederick (1896) 1918 A First Book of Jurisprudence for Students of the Common Law. 4th ed. London: Macmillan.
Scigliano, Robert G. 1962 The Courts: A Reader in the Judicial Process. Boston: Little.
II INTERNATIONAL ADJUDICATION
The term “adjudication,” in the vocabulary of international lawyers, is only partly a term of art. It is used loosely to cover many different forms of third-party decision concerning international disputes which have developed in the course of the ages. When the term is used in this sense, a distinction is sometimes drawn between “arbitration” before ad hoc bodies and “judicial settlement” by permanent tribunals (see League of Nations, Covenant 1919, art. 12, 13, and 15, as amended in 1921, and United Nations, Charter 1945, art. 33). In a more precise sense, “international adjudication” is used to describe the settlement of disputes by permanent international tribunals, a new development of the twentieth century, and is, in effect, a synonym for “judicial settlement”.
In both senses the concept includes three elements: an impartial judge or judges, who may, without a change in the nature of their function, be described as arbitrators, commissioners, or umpires; a procedure (which may or may not include oral hearings) that enables the parties to present fully and on a footing of equality their views on the questions submitted for decision; and a decision “on the basis of respect for law,” which, given with all the solemnity of judicial process after a full and fair hearing before impartial judges, is binding in substance, even though it may not always be technically binding in form.
While international adjudication has a recognized place in the United Nations system, its progress continues to be retarded by four factors: jurisdiction remains voluntary in principle rather than compulsory; the margin of uncertainty in the law is substantially wider than in mature systems of municipal law; there is no legislature to give the judiciary new law to apply and to change the law when its decisions are unacceptable; and there is no organized procedure for the execution of international decisions and awards. All of these factors reflect the sociology, political structure, and temper of international society. Their combined result is that while international adjudication represents a vital element in the progress of world organization, its future remains precarious.
Origins and growth
The history of international adjudication starts with the origins of international arbitration. The law and practice of permanent international tribunals have grown out of the much longer history of international arbitration. Even today the distinction between judicial settlement and arbitration remains much less clear than in municipal law by reason of the voluntary basis of the jurisdiction of international courts.
International arbitration
The origins of international arbitration have been traced back, with doubtful justification, to the Amphyctionic Council of ancient Greece. Arbitration was, however, a recognized practice among the Greeks, mentioned as such by both Herodotus and Thucydides. The Roman Senate and later the Roman emperor arbitrated between subject peoples, and in medieval times both pope and emperor acted as arbitrators. From the thirteenth century on, there was a gradual process of development from arbitration in feudal quarrels, like the Mise of Amiens, the award of St. Louis between Henry III of England and the barons in 1264, to arbitration in international disputes, one of the most famous antecedents of which was the bull Intercoetera of Pope Alexander vi, dividing the New World between Spain and Portugal in 1493. It is rarely appreciated that the Treaty of Vervins of 1598, the Peace of Westphalia of 1648, the Treaty of Westminster of 1655, the Treaty of the Pyrenees of 1659, the Treaty of Ryswick of 1697, and the Treaty of Utrecht of 1713 all provided for arbitration in specified disputes. However, the modern history of international arbitration is generally dated from the Jay Treaty of 1795, which inaugurated the tradition of recourse to arbitration as the recognized method of settling disputes between Great Britain and the United States not adjusted by negotiation.
In the nineteenth century the practice of arbitration became widespread. International boundaries in sparsely settled areas, particularly in the Americas, were determined by arbitration in a wide range of cases. Complaints of belligerent interference with neutral rights and failures to discharge neutral duties were frequently referred to arbitration. Allegations of state responsibility for injury to persons and property were the staple business of an important series of claims commissions, culminating in the Venezuelan arbitrations of 1903–1904 (which involved 12 states), the Anglo-American tribunal of 1910 (which liquidated outstanding claims, some of which were almost a century old), and the Mexican claims commissions, 1923–1934 (which involved seven states). Much of this activity attracted little or no public interest, but the settlement by arbitration in 1871–1872 of the Alabama claims controversy focused attention upon the possibility of recourse to international arbitration in disputes of political importance. The effect was the more dramatic because the arbitration proceedings followed immediately after the Franco-Prussian War. The British Guiana-Venezuela boundary arbitration of 1899 between Great Britain and Venezuela, which again followed a period of acute diplomatic strain between Great Britain and the United States, revived this interest in arbitration as an alternative to war.
It was in these circumstances that the First Hague Peace Conference of 1899 discussed the desirability of compulsory arbitration and the possibility of creating a permanent international tribunal. It succeeded in creating the Permanent Court of Arbitration, which is not a permanent court, but a standing panel from which ad hoc tribunals can be drawn. The conference made an important advance by codifying international arbitral procedure, and the establishment of the Permanent Court of Arbitration gave a significant stimulus to international arbitration. An increasing number of ad hoc tribunals were constituted from its membership in the following years.
But neither the 1899 conference nor the Second Hague Peace Conference of 1907, which proclaimed, in an anodyne manner, the principle of compulsory jurisdiction, was successful in securing the acceptance of any firm obligation to arbitrate or in establishing a permanent tribunal. Progress was made in drafting a statute for a proposed Court of Arbitral Justice, but it proved impossible to secure agreement upon a method of electing the judges acceptable to both the larger and the smaller states. A considerable number of bilateral arbitration treaties were negotiated in the following years, but many of these failed to be ratified and others had little practical effect.
Permanent Court of International Justice
The decisive step forward was taken in 1920 when the Assembly of the League of Nations approved the Statute of the Permanent Court of International Justice. The Court, whose judges were elected by an absolute majority of votes in independent elections in both the Assembly and the Council, held its first session in 1922. During the period from 1922 to 1940 it gave 33 judgments and 27 advisory opinions.
Neither the United States nor the Soviet Union became parties to the statute; nevertheless, the Court played a significant part in the international life of the League of Nations period. A substantial proportion of its cases related to the interpretation and application of the 1919 peace settlement, but the principles formulated in its decisions were frequently more important and permanent than the contexts in which they were enunciated. Three examples should be mentioned. The first is the principle that the conclusion of a treaty is to be construed as an exercise rather than a restriction of sovereignty; consequently, the treaty must be interpreted so as to give effect to its terms rather than preserve the sovereignty of the parties (The S.S. Wimbledon, 1923 P.C.I.J. Series A, No. 1). The second principle is that “domestic jurisdiction” is “an essentially relative” concept, the content of which at any particular time “depends on the development of international relations” (Nationality Decrees in Tunis and Morocco, 1923 P.C.I.J. Series B, No. 4). Third is the “well-known rule that no-one can be judge in his own suit” (art. 3, paragraph 2 of the interpretation of Treaty of Lausanne [Frontier Between Turkey and Iraq] 1925 P.C.I.J. Series B, No. 12). Of these principles the first two have done much to shape the whole subsequent development of international law; failure to acknowledge the implications of the third principle remains the crucial weakness of contemporary international organization.
Nominally, there was a considerable widening of the scope of the Court’s compulsory jurisdiction from 1929 on, chiefly through the acceptance by France, the British Commonwealth countries, and other states of the “optional clause” of its statute, which conferred such jurisdiction in certain classes of disputes. But in the course of the 1930s an increasing proportion of the questions actually submitted to the Court consisted of claims cases rather than larger issues, partly because of the general political climate of the times, partly as the result of what was widely regarded as a political alignment in the Court in the Austro-German Customs Union Case (1931 P.C.I.J. Series A/B, No. 41).
Throughout the interwar period a considerable number of cases continued to be referred to ad hoc tribunals, sometimes drawn from the Permanent Court of Arbitration, and mixed arbitral tribunals handled a large volume of business arising out of the World War I.
International Court of Justice
On the founding of the United Nations in 1945 the Permanent Court was reconstituted as the International Court of Justice by a statute annexed to the UN Charter which forms an integral part thereof and is binding on all UN members. The Court consists of 15 judges, elected by the General Assembly and the Security Council for terms of nine years. Only states may be parties in cases before the Court, but public international organizations may furnish in-formation (Statute, art. 34), and advisory opinions may be requested by the General Assembly, by the Security Council, and by other organs of the United Nations and specialized agencies which may at any time be so authorized by the General Assembly (Statute, art. 65; Charter, art. 96).
The function of the Court is to decide in accordance with international law such disputes as are submitted to it. It is to apply international conventions, whether general or particular, that establish rules expressly recognized by the contesting states; international custom as evidence of a general practice accepted as law; the general principles of law accepted by civilized nations; and, subject to the rule that a decision had no binding force except between the parties and in respect of the particular case, judicial decisions and the teachings of the most highly qualified publicists of the various nations as subsidiary means for the determination of the law (Statute, art. 38).
The jurisdiction of the Court comprises all cases that the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.
The states party to the statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: (a) the interpretation of a treaty; (b) a question of international law; (c) the existence of any fact that, if established, would constitute a breach of an international obligation; or (d) the nature or extent of the reparation to be made for any such breach. Thirty-seven states have made such declarations. Many of these declarations are, however, subject to time limits or other provisions that make the obligations created by them precarious, and five declarations, including that of the United States, exclude matters of domestic jurisdiction as determined by the state concerned. No communist state has made such a declaration; few of the new Asian, Middle Eastern, and African states have made declarations; and an important group of Latin American states are no longer bound by such declarations.
The Court has an extensive compulsory jurisdiction under other instruments, such as the European Convention for the Peaceful Settlement of Disputes; the constituent instruments of a number of international organizations (e.g., the international Labour Organisation, the International Civil Aviation Organization, and others); a wide-spread but uneven network of bilateral arbitration conventions; and clauses providing for compulsory jurisdiction contained in a large number of general treaties on a wide range of subjects. In recent years, however, there has been a marked decline in the practice of including such clauses in newly negotiated general international conventions, chiefly because the inclusion is normally opposed by the Soviet Union.
Activities of the International Court
The rhythm of business in the International Court of Justice has been slow, but a number of cases referred to it have been important either because of the questions of law at issue or because of their political context. In the Reparation for Injuries Suffered in the Service of the United Nations Case (1949 I.C.J. 174) the Court recognized the objective international personality of the United Nations and its capacity to protect those in its service by a diplomatic claim. In the Barcelona Traction, Light and Power Company, Limited, Case (1964 I.C.J. 168) some of the fundamentals of the scope of diplomatic protection of corporate bodies are involved. The Certain Expenses of the United Nations Case (1962 I.C.J. 151) deals with an issue that has since paralyzed the UN General Assembly. The South-West Africa cases (1950 I.C.J. 128; 1955 I.C.J. 67; 1956 I.C.J. 23; 1962 I.C.J. 319) deal with one of the most explosive issues in contemporary international politics.
The value of the part played by the Court in these cases remains a matter of debate, and there has been increasing concern over the fact that a number of decisions, opinions, and orders of the Court have remained ineffective in practice. The judgment of the Court in the Corfu Channel Case (1949 I.C.J. 237) was ignored by Albania; a number of advisory opinions have remained ineffective; and no effect was given to the order made by the Court in the Anglo-Iranian Oil Co. Case (1951 I.C.J. 89) indicating provisional measures for the protection of the rights of the parties.
Moreover, compliance for a certain time with the Court’s decision in a case does not furnish any continuing guarantee that the problem out of which the case arose has been solved or that the decision will not be frustrated or negated by further developments. The opinion of the Permanent Court of International Justice in the Austro-German Customs Union Case did not prevent the Anschluss; the decision of the International Court of Justice in the Right of Passage Over Indian Territory Case (1960 I.C.J. 6) was followed, after an interval, by the Indian occupation of Goa.
These difficulties inevitably prompt serious questions concerning both the appropriateness of the decisions given in the cases in which they have arisen and the long-range problem of what measures can be taken to ensure compliance with international decisions and awards; it nevertheless re-mains true that the general standard of compliance with international decisions and awards is high.
Meanwhile, there has been a significant increase in the proportion of cases submitted to the Court originating from Latin America, Asia, and Africa; and in the Certain Expenses of the United Nations Case the Soviet Union appeared before the Court for the first time.
In these circumstances it is still premature to attempt to strike a balance between the encouraging and the discouraging elements in the record of the Court. A valid appraisal must await further developments, and the answer will be determined by a combination of three factors: (1) the degree of confidence in the Court that governments are prepared to show by referring important matters to it; (2) the degree to which the Court justifies such confidence by resolving the issues submitted to it with creative imagination; and (3) the extent to which the United Nations can make a reality of the obligation of compliance with international decisions and awards.
Specialized tribunals
While the International Court of Justice is the principal judicial organ of the United Nations, a substantial proportion of international judicial business continues to be en-trusted to ad hoc or specialized tribunals. Model rules on arbitral procedure, designed for the guidance of ad hoc tribunals, were approved by the International Law Commission of the United Nations in 1958. Among specialized tribunals the Arbitral Commission on Property Rights and Interests in Germany and the Arbitral Tribunal and Mixed Commission for the Agreement on German External Debts have been of particular importance.
Important arbitrations have been conducted between governments and international commercial interests, such as the Alsing case, involving the Alsing Trading Company, Limited, and the Swedish Match Trust versus the Greek state (1956 International Law Reports 633), and the Aramco Case, involving Saudi Arabia versus Aramco and the Onassis interests (1963 International Law Reports 117). The International Bank for Reconstruction and Development has established the Centre for the Settlement of Investment Disputes. The International Labour Organisation has conducted judicial inquiries into charges of forced labor in violation of international conventions brought by Ghana against Portugal (International Labor Office, Official Bulletin, vol. 45, no. 2, supplement 2, April 1962) and by Portugal against Liberia (vol. 46, no. 2, supplement 2, April 1963).
There have been exceptionally important regional developments in Europe, where the Court of Justice of the European Communities has a general mandate to “ensure the observance of law and justice” in the operation of the six-nation communities (Bebr 1962). The European Court of Human Rights hears complaints referred to it by the European Commission of Human Rights or submitted by governments that allege violations of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Robertson 1963). These regional developments may at some stage furnish a model for further international developments. The United Nations and the International Labour Organisation maintain administrative tribunals that are making a significant contribution to international administrative law (Jenks 1962).
These varied developments illustrate the extent to which international adjudication is increasingly including in its scope matters lying beyond the traditional purview of international law.
Problems of international adjudication
Compulsory jurisdiction
Proposals for extending the compulsory jurisdiction of the Court have attracted widespread attention. They take varied forms. Some of them envisage a far-reaching reconstruction of world organization on the basis of an amended Charter of the United Nations (Clark & Sohn 1958). Under such a scheme compulsory jurisdiction might include not only disputes between states but also disputes between states and international organizations and disputes relating to the constitutionality of action taken by international organizations. Disputes between states would be referred to the Court if the General Assembly decided that their continuance would be likely to endanger the maintenance of international peace and security. It has been argued that compulsory jurisdiction would have made it possible to secure a prompt determination of the legal issues involved in such matters as the Berlin crisis of 1961, the nationalization of the Suez Canal, the Sino-Indian border dispute, the Gulf of Aqaba dispute, the U-2 and RB-47 aerial incidents, and the Cuban and Indonesian expropriations (Larson 1961). Such proposals raise important questions of judgment concerning the breadth of support they are likely to secure, the measure in which the acceptance of jurisdiction will be honored when a concrete case arises, and the extent to which it will be practicable to secure compliance with the decisions given.
More modest proposals envisage a gradual approach, consisting essentially of (a) the abandonment of the automatic or self-judging reservation, which excludes from the compulsory jurisdiction of the Court questions of domestic jurisdiction as determined by the state concerned; and (b) making further provision for compulsory jurisdiction when negotiating international arrangements on particular political or economic questions.
The Institute of International Law has outlined a series of recommendations to implement this kind of approach: (1) In an international community the members of which have renounced the right of war, recourse to international adjudication constitutes a normal method of settlement of legal disputes and should therefore never be regarded as an unfriendly act toward a respondent state. (2) Obligations of compulsory jurisdiction should not be illusory; they should therefore be undertaken in terms that respect the right of the Court to settle any dispute concerning its own jurisdiction. (3) Obligations of compulsory jurisdiction should not be precarious; declarations accepting the jurisdiction of the International Court should therefore be valid for periods of not less than five years. (4) General conventions should contain a jurisdiction clause permitting the institution of proceedings by unilateral application. (5) Economic and financial agreements concerning development schemes should include a jurisdiction clause. (6) Certain economic and financial agreements between states could usefully contain a general provision for compulsory jurisdiction in respect of claims brought by one of the states concerned (either acting on its own behalf or espousing a claim on behalf of one of its nationals ) against the other state concerned (Institute of International Law 1959).
The potential effectiveness of the gradual approach presupposes a sustained continuity of action. Great advances might be possible if public opinion were sufficiently informed and farsighted to sanction initiatives even if they are unlikely to be reciprocated by all states in the foreseeable future. As compulsory jurisdiction always rests on a reciprocal basis, such initiatives do not expose the state taking them to any liability; if not reciprocated, they are ineffective rather than dangerous. However, what risks should be taken in the matter is basically a question of practical statesmanship, going beyond legal analysis.
Scope and limits of justiciability
Throughout the history of international adjudication there has been recurrent controversy concerning the potential scope of the international judicial function and the limits of justiciability. John Westlake was the first major writer to discuss the question in terms that remain relevant today (1904–1907). Since the publication of his work most of the leading treatises and textbooks have discussed the matter at some length. The leading American and British treatises (Hyde 1922; Oppenheim 1905) deal with it particularly fully, and the current Soviet textbook of international law available in English does so more briefly (Akademiia Nauk S.S.S.R. 1947).
Four main conceptions of limited justiciability may be distinguished in the literature: (a) that the scope for international judicial settlement as a matter of binding obligation accepted in advance is limited by the existence of gaps and deficiencies in international law; (b) that disputes of high political importance are unsuitable for judicial settlement; (c) that judicial settlement is appropriate only when application of the existing rules of law is consistent with right and justice; and (d) that a distinction must be drawn between disputes over rights and conflicts of interests. These conceptions exercised for many years a far-reaching influence on the policy of governments and the drafting of arbitration treaties as well as on legal doctrine, but the life has now gone out of the whole controversy. Sir Hersch Lauterpacht’s The Function of Law in the International Community (1933) established beyond any possibility of refutation that there are no technical limitations to the possibility of determining judicially every international controversy.
It is, however, now widely and generally conceded that this is not the heart of the matter. The essence of the problem is that a judicial determination on the basis of the existing law may, according to circumstances, resolve the problem, circumscribe it without resolving it, create a new situation in which the solution of the problem by negotiation becomes less difficult, or aggravate rather than eliminate the difficulty. Whether or not it is wise to seek a judicial decision in a particular situation is a question of political judgment, but the fact that it may not always be wise to go to law does not imply that it should not be possible to go to law unless all concerned are agreed that it is wise and desirable to do so. The question of the usefulness or desirability of proceedings in given circumstances, therefore, has little bearing on that of the balance of advantage in accepting or declining compulsory jurisdiction. This latter question must be decided on the basis of the effect of the decision taken on the strength and stability of the international legal order as a whole.
Present role and future potential
The present role and future potential of international adjudication in world affairs remain controversial. Adjudication is no longer thought of as it was a century ago, in the early days of the modern movement for the promotion of international arbitration, as the alternative to war. It is generally recognized that it must take its place with other processes of peaceful settlement (including negotiation, inquiry, mediation, conciliation, resort to regional agencies or arrangements, and other peaceful means) within a wider framework of world organization in which diplomacy, economic policy, the protection of human rights, the promotion of social progress and better standards of life in larger freedom, international cooperation in science and technology, the progressive development of international law, and effective collective measures for the prevention and removal of threats to the peace all have essential parts to play. The question has become, How large a part can and should adjudication play within such a framework? The answer will depend partly on the future of national attitudes toward such adjudication, partly on the extent to which the procedures of international adjudication are satisfactorily adapted to changed needs and partly on the measure in which the future decisions of the International Court and other international tribunals achieve a balance between the conflicting claims of stability and change.
A number of convergent but essentially different factors have tended to retard the development of international adjudication during the middle years of the twentieth century.
National attitudes
Great differences exist among the attitudes of the United States, the Soviet Union and states sharing her general approach, and the Asian and African states that have during these years won or recovered their independence. None of these attitudes is necessarily permanent.
The United States has, with the significant exception of its nonparticipation during the League of Nations period in the Permanent Court of international Justice, played a leading part in the development of international adjudication since the Jay Treaty of 1795, but it has shown a continuing reluctance to accept a binding obligation to adjudicate in advance of the emergence and definition of the issue to be adjudicated. The United States qualified this attitude in 1946 by accepting in principle the compulsory jurisdiction of the International Court, but subject to the exclusion of matters of domestic jurisdiction as determined by the United States. The Connally amendment, embodying this reservation, has been much criticized and its repeal sought by successive governments, but the issue remains in doubt.
The Soviet opposition to compulsory jurisdiction is widely regarded as a transposition to the international scene of the Marxist concept that matters of state lie beyond the frontiers of the law and is assumed, on this basis, to be of a more unyielding character. While this opposition has been relaxed in a limited number of special contexts, there has been no indication that any more general modification is under consideration.
The reserved attitude of many of the new states reflects a general distrust of the traditional content of international law but may well change rapidly if the decisions of the International Court and of other tribunals during the coming years command their respect.
These attitudes differ widely in their historical background, present significance, and susceptibility to change, but they nevertheless influence one another. All of them will be influenced by the future vitality of the concept of the rule of law in national and international society alike.
The range of judicial procedures
The Statute of the International Court of Justice, in its present form, allows only two types of proceedings: contested cases between states and requests for an advisory opinion by an authorized United Nations organ or specialized agency. In the Court of Justice of the European Communities and other European regional tribunals a much wider range of procedures and remedies is available. These include proceedings by the communities against their member states, against decisions of the communities, and proceedings by and against corporate bodies and individuals. The scope of such proceedings includes the interpretation and application of treaties and community regulations and decisions, questions of administrative law, and matters of tort and contract. The remedies available include, in addition to damages and penalties, the annulment of decisions, the equivalent of a decree of specific performance, and a ruling on a question of law raised before a municipal tribunal designed as a directive to that tribunal. The future importance of international adjudication may depend in substantial measure on the extent to which it develops a comparable range of procedures and remedies.
International change and stability
In every growing and changing society the significance of judicial process depends on its relationship to the rhythm of growth and change. The future significance of international adjudication will depend on the extent to which it becomes a recognized part of orderly processes of growth and change in international society. If we are prepared to accept the twin facts that a substantial margin of uncertainty is an inherent characteristic of every legal system that is in process of rapid growth but that the margin cannot be so wide that the hard core of accepted law dissolves, adjudication can be a major creative influence in the development of a new world of law.
As was convincingly demonstrated by Sir Hersch Lauterpacht (1927), the general principles of law recognized by civilized nations have been a major fertilizing influence and source of decision throughout the modern history of international arbitration and adjudication. Such recourse to general principles must now, in view of the changed political structure of the world, draw upon a wider range of legal systems (Jenks 1958, pp. 62-172). The scope is limited only by the extent to which judicial agreement can be secured on the principles and their application and the measure in which the resulting decisions command general confidence and acceptance. The authority to use such principles, specifically conferred upon the International Court of Justice by the terms of its statute (art. 38, 1, c), would justify its assuming a dynamic role in the development of the law.
Recourse to principles of equity by international courts and tribunals has likewise been widespread throughout the modern history of international arbitration, and there is a solid body of established precedent and well-tested experience from which it is clear that equitable concepts can and should play an important part in adapting principles to circumstances in a world in which the law is constantly confronted with new problems and needs. There are significant indications that general concepts of international policy may play an increasingly important part in the international adjudication of the future (Jenks 1964, pp. 316–546). These concepts will entail: recognizing the full implications of the changed legal status of violence; testing the claims of sovereignty by the public interest; securing the effectiveness of international organization; developing a law of contract and tort adequate to contemporary needs; and evolving rules concerning prescription, acquiescence, and estoppel that would secure a necessary minimum of stability in a world of cataclysmic change.
International adjudication has played no significant part in the most far-reaching developments in the international life of our time: the accession of some thousand million people to political independence in less than 20 years (primarily by peaceful means) and the acceptance by economically advanced countries of a recognized responsibility for disinterested cooperation in the economic development of the whole world. Adjudication will not serve to bridge the still widening gap between affluent and underdeveloped societies or ensure that advanced technology becomes the servant rather than the master of man. It can make little immediate contribution to the relaxation of political tension between rival ideologies. But in a world in which appropriate action is being taken in respect of all these matters it remains as necessary as a sound judicial system is in a well-governed state.
In brief, adjudication fulfills much the same function in international as in national life, namely, the settlement of disputes by recourse to law. It can fulfill this function satisfactorily only as an element in a comprehensive approach to world organization in which the restraint of violence by collective action, diplomacy, economic policy, and other measures all play mutually complementary parts. Within such a framework it represents an indispensable element in ensuring that justice is not sacrificed in the hope that through this sacrifice peace and security can be maintained.
C. Wilfred Jenks
[See alsoInternational law. Other relevant material may be found inConflict of laws; International legislation; and underInternational organization; Law.]
BIBLIOGRAPHY
The growth, development, and problems of international adjudication have been one of the major themes of the literature of international law for the last half-century. A bibliography of the subject appears annually in International Court of Justice, Yearbook. This includes 6,875 items for the period 1946–1965. In this immense literature a choice of authorities inevitably involves an element of preference.
Ralston 1929, Hudson 1944, Politis 1924 are standard general accounts of the historical development of international adjudication. Moore 1898 remains the outstanding authoritative work, there being nothing comparable for the later period. Hudson 1943 is the leading work on the Permanent Court; Rosenne 1957, the leading general account of the International Court as reconstituted in 1945; Jessup 1959, the best short account of the Court’s current position. Lauterpacht 1933 provides the outstanding theoretical study of peaceful settlement and the concept of justiciability. Lauterpacht 1934 gives the most illuminating evaluation of the methodological and other intellectual problems inherent in the international judicial process. Simpson & Fox 1959 is the most comprehensive recent account of international arbitral procedure. Jenks 1964 is a study of the measures necessary to consolidate and improve the process of international adjudication to enable it to play its proper part in promoting and securing the rule of law in world affairs.
The leading collections of international decisions and awards are: Moore 1898; Lapradelle et al. 1905-1954; Hague, Permanent Court of Arbitration 1916; League of Nations, Permanent Court of International Justice 1922–1940; International Court of Justice 1947-1964; International Court of Justice, Registry; International Law Reports. International Court of Justice 1952-1963 is a digest of the decisions of the International Court; Hague, Permanent Court of Justice 1961 is designed to be a comprehensive digest of the pleadings before the Court.
Akademiia Nauk S.S.S.R., Institut Gosudarstva i Prava (1947) 1960 International Law: A Textbook for Use in Law Schools. Moscow: Foreign Languages Publishing House. → First published as Mezhdunarodnoe pravo. See especially pages 377–400.
Bebr, Gerhard 1962 Judicial Control of the European Communities. London: Stevens; New York: Praeger.
Clark, Grenville; and Sohn, Louis B. (1958) 1960 World Peace Through World Law. 2d ed., rev. Cambridge, Mass.: Harvard Univ. Press.
Hague, Permanent Court of Arbitration 1916 The Hague Court Reports. New York: Oxford Univ. Press.
Hague, Permanent Court of Justice 1961 Répertoire des décisions et des documents de la procédure écrite et orale de la cour permanente de justice internationale . . . Serie 1: Cour Permanente de Justice Internationale, 1922–1945. Published under the direction of Paul Guggenheim. Paris, Université’, de, Institut des Hautes Études Internationales, Publication No. 38. Geneva: Droz.
Hudson, Manley O. 1943 The Permanent Court of International Justice 1920–1942: A Treatise. New York: Macmillan.
Hudson, Manley O. 1944 International Tribunals: Past and Future. Washington: Carnegie Endowment for International Peace and Brookings Institution.
Hyde, Charles Cheney (1922) 1945 International Law, Chiefly as Interpreted and Applied by the United States. 3 vols., 2d ed., rev. Boston: Little. → See especially pages 1559–1653 on “Differences Between States: Modes of Redress Other Than War. Title A: Amicable Modes.”
Institute of International Law 1959 Resolutions and Vösu Adopted by the Institute at its Session at Neuchâtel, 3–12 September 1959; Compulsory Jurisdiction of International Courts and Tribunals. Institute of International Law, Annuaire de l’Institut de Droit International 48, no. 2:380–388.
International Court of Justice, Registry, Reports of International Arbitral Awards. → Published since 1948.
International Court of Justice, The Hague, Yearbook. → Published since 1945/1947. Supersedes: Permanent Court of International Justice, The Hague, Publications, Series E: Annual Report.
International Court of Justice, The Hague 1947–1964 Reports of Judgments, Advisory Opinions and Orders. Leiden (Netherlands): Sijthoff.
International Court of Justice, The Hague 1952-1963 The Case Law of the International Court: A Repertoire of the Judgements, Advisory Opinions and Orders. Vols. 1–3. Leiden (Netherlands): Sijthoff.
International Law Reports (London). → Published since 1919/1922. See especially 1950 and onwards.
Jenks, C. Wilfred 1958 The Common Law of Mankind. London: Stevens; New York: Praeger.
Jenks, C. Wilfred 1962 The Proper Law of International Organisations. London: Stevens; Dobbs Ferry, N.Y.: Oceana.
Jenks, C. Wilfred 1964 The Prospects of International Adjudication. London: Stevens; Dobbs Ferry, N.Y.: Oceana.
Jessup, Philip C. 1956 Transnational Law. New Haven: Yale Univ. Press.
Jessup, Philip C. 1959 The Use of International Law. Ann Arbor: Univ. of Michigan Law School.
Lapradelle, Albert g. de et al. (editors) (1905–1954) 1954–1957 Recueil des arbitrages internationaux. 3 vols. Paris: Éditions internationales. → Volumes 1 and 2 are second editions.
Larson, Arthur 1961 When Nations Disagree: A Handbook on Peace Through Law. Baton Rouge: Louisiana State Univ. Press.
Lauterpacht, Hersch 1927 Private Law Sources and Analogies of International Law: (With Special Reference to International Arbitration). New York: Longmans.
Lauterpacht, Hersch 1933 The Function of Law in the International Community. Oxford: Clarendon.
Lauterpacht, Hersch (1934) 1958 The Development of International Law by the International Court. Rev. ed. London: Stevens. → First published as The Development of International Law by the Permanent Court of International Justice.
League of Nations, Covenant (1919) 1938 The Covenant of the League of Nations: Including Amendments in Force, February 1, 1938. London: H. M. Stationery Office.
League of Nations, Permanent Court of International Justice 1922-1940 Publications de la Cour Permanente de Justice Internationale. Serie A/B: Arréts, ordonnances et avis consultatifs, No. 1-80. Leiden (Netherlands): Sijthoff.
Moore, John b. 1898 History and Digest of the International Arbitrations to Which the United States Has Been a Party. 6 vols. Washington: Government Printing Office.
Oppenheim, Lassa f. l. (1905) 1955 International Law: A Treatise. Volume 1: Peace. 8th ed. Edited by Hersch Lauterpacht. New York: Longmans. → See especially the Introduction and Chapter 1.
Politis, Nicolas s. 1924 La justice Internationale. Paris: Hachette.
Ralston, Jackson h. 1929 International Arbitration, From Athens to Locarno. Stanford (Calif.) Univ. Press; Oxford Univ. Press.
Robertson, Arthur h. 1963 Human Rights in Europe. Dobbs Ferry, N.Y.: Oceana.
Rosenne, Shabtai 1957 The International Court of Justice: An Essay in Political and Legal Theory. Leiden (Netherlands): Sijthoff.
Simpson, John l.; and Fox, Hazel 1959 International Arbitration: Law and Practice. London: Stevens.
United Nations, Charter 1945 Charter of the United Nations and Statute of the International Court of Justice. New York: United Nations.
Westlake, John (1904–1907) 1910–1913 International Law. 2 vols. 2d ed. Cambridge Univ. Press. → See especially pages 300-326 on “The Political Action of States” and pages 350–368 on “International Arbitration.”
Adjudication
ADJUDICATION
The legal process of resolving a dispute. The formal giving or pronouncing of a judgment or decree in a court proceeding; also the judgment or decision given. The entry of a decree by a court in respect to the parties in a case. It implies a hearing by a court, after notice, of legal evidence on the factual issue(s) involved. The equivalent of a determination. It indicates that the claims of all the parties thereto have been considered and set at rest.
Three types of disputes are resolved through adjudication: disputes between private parties, such as individuals or corporations; disputes between private parties and public officials; and disputes between public officials or public bodies. The requirements of full adjudication include notice to all interested parties (all parties with a legal interest in, or legal right affected by, the dispute) and an opportunity for all parties to present evidence and arguments. The adjudicative process is governed by formal rules of evidence and procedure. Its objective is to reach a reasonable settlement of the controversy at hand. A decision is rendered by an impartial, passive fact finder, usually a judge, jury, or administrative tribunal.
The adjudication of a controversy involves the performance of several tasks. The trier must establish the facts in controversy, and define and interpret the applicable law, or, if no relevant law exists, fashion a new law to apply to the situation. Complex evidentiary rules limit the presentation of proofs, and the Anglo-American tradition of stare decisis, or following precedents, controls the outcome. However, the process of applying established rules of law is neither simple nor automatic. Judges have considerable latitude in interpreting the statutes or case law upon which they base their decisions.
An age-old question that still plagues legal theorists is whether judges "make" law when they adjudicate. sir william blackstone believed that judges do nothing more than maintain and expound established law (Commentaries on the Laws of England); other writers vehemently disagree. Some legal analysts maintain that the law is whatever judges declare it to be. Echoing those sentiments, President theodore roosevelt asserted that "the chief lawmakers in our country may be, and often are, the judges, because they are the final seat of authority. Every time they interpret … they necessarily enact into law parts of a system of social philosophy; and as such interpretation is fundamental, they give direction to all law-making" (Message to Congress [Dec. 8, 1908]). Supreme Court Justice benjamin n. cardozo, writing in The Nature of the Judicial Process, argued that the law is evolutionary and that judges, by interpreting and applying it to specific sets of facts, actually fashion new laws.
Whether judges are seen as making law or merely following what came before, they are required to operate within narrow strictures. Even when they are deciding a case of first impression (a question that has not previously been adjudicated), they generally try to analogize to some existing precedent. Judges often consider customs of the community; political and social implications; customs of the trade, market, or profession; and history when applying the law. Some, such as Justice oliver wendell holmes and Justice Cardozo, thought that considerations of social and public policy are the most powerful forces behind judicial decisions.
A hearing in which the parties are given an opportunity to present their evidence and arguments is essential to an adjudication. Anglo-American law presumes that the parties to the dispute are in the best position to know the facts of their particular situations and develop their own proofs. If the hearing is before a court, formal rules of procedure and evidence govern; a hearing before an administrative agency is generally less structured.
Following the hearing, the decision maker is expected to deliver a reasoned opinion. This opinion is the basis for review if the decision is appealed to a higher tribunal (a court of appeals). It also helps ensure that decisions are not reached arbitrarily. Finally, a well-reasoned opinion forces the judge to carefully think through his or her decision in order to be able to explain the process followed in reaching it.
Adjudication of a controversy generally ensures a fair and equitable outcome. Because courts are governed by evidentiary and procedural rules, as well as by stare decisis, the adjudicative process assures litigants of some degree of efficiency, uniformity, and predictability of result.
further readings
Cardoza, Benjamin N. 1960. The Nature of the Judicial Process. New Haven, Conn.: Yale Univ. Press.
Lewis, William D., ed. 1922. Commentaries on the Laws of England. Philadelphia: Bisel.
Lucy, William. 1999. Understanding and Explaining Adjudication. Oxford Univ. Press.
Roosevelt, Theodore. 1908. Message to Congress. Congressional Record, December 8, pt. I:21.
cross-references
Blackstone, Sir William; Cardozo, Benjamin Nathan; Holmes, Oliver Wendell, Jr.; Judiciary.