The legal process is basically the recipe of a lawsuit. It's a set of fixed rules which say what happens during a trial, what main principles should be followed and cannot be breached, what are the parties, what they can or can't do, etc. Legal process is extremely important: it's the only guarantee that the Judge doesn't abuse the power granted by her position, that justice can be served. The legal process we have today is one of the great civic guarantees and the result of three millenia of history.

In the beginning

In the beginning was cake- no, wait, that's the start of a joke. In the beginning was tribal justice. An ethnologist might disagree, but for the purposes of this writeup, I will define a tribe as a community where conflicts are settled amicably. The leader of the tribe must reconcile all parties in order to maintain peace within the community. However, when there is conflict between members of different tribes, the alternative is simple:

  • war,
  • or both tribes can refer to a higher authority, the King, who will set up a trial to resolve the dispute in a way that cannot be contended by any of his subjects.

To people who were living in a world where nothing happens without the will of the gods, conflicts of this sort were seen as a consequence of the gods' anger, and the principal purpose of a trial was to appease their wrath. Therefore the King is vested with a divine function, and his trials are religious rituals.

While this might not be a historical account of anything, these are the conceptual origins of how jurisprudence came to being, and how Kings all over the world needed to come up with some form of legal process.

Hebrew legal process (circa 1000 BC)

Hebrew law in the time of Solomon was largely inspired by Mesopotamian law. Each tribe had its tribunal, a religious council of elders called the Sanhedrin. The purpose of a trial was to interpret the will of God concerning the issue and resolve it according to His wishes. When a situation couldn't be resolved, the Great Sanhedrin of Jerusalem was appealed to, and its rulings were inviolable.

The Sanhedrin's rules regarding exhibits were very strict. Circumstantial evidence was inadmissible. Scientific evidence (understandably unreliable in those times) was inadmissible. Witnesses who had an interest in the outcome of the trial were inadmissible. Confessions were inadmissible (and therefore torture was prohibited), but negative confessions, on the other hand, were admissible. One could not be sentenced to death on the faith of just one testimony, or if the jury's decision was unanimous (considered a bit suspicious).

Greek legal process (circa 592 BC)

The Heliaea was Athens' supreme tribunal, created to supersede the aristocratic Aeropage after the advent of democracy. Any citizen who felt a law passed by the Assembly was illegal could put it on trial before the Heliaea.

6,000 citizen-judges aged over 30 were drawn at random, as were most public offices then, divided up in ten courts of 501, with the rest acting as substitutes. It was mob justice at its greatest: no prosecutor, no attorneys in a society where citizens had to stand up for themselves in the agora, and no deliberation either. Each side recited a pre-written argument, the judges voted with black or white pebbles and the sentence was definitive.

Roman legal process

Rome existed for over a millenium, as a city-state and as the largest dominion of the time, as a Kingdom, as a Republic, and as an Empire. Understandably, the way justice was dealt changed quite a bit, and there were three different legal processes over the course of Roman history, each overlapping on the next.

  1. The law of actions (c. 753-200 BC)
    The concept of action in terms of law basically means a procedural right: an action is something that can be done, according to process law.

    Early Roman law was very tribal. Trials were magic rituals which sought to channel the violence of personal vengeance. Twelve tables listed a series of actions that could be performed, offenses, and the associated sanctions. Most often these were fines, which were under the form of sacrifices to the gods the loser would carry out, although one could pay the priests (who were also men of law at the time) to carry out the sacrifices for them, a system which understandably went sour real fast.

    There were two stages to a trial. The King, overwhelmed by grievances, simply assessed the receivability of the plea before handing it over to the religious courts. As said before, the trial was heavily ritualized, with sacrifices, divinations, etc., leading to a process which was heavily vulnerable to arbitrary decisions, and even corruption, until the system was reformed in the 2nd century BC.

  2. Formulary process (c. 200-50 BC)
    This process was what law scholars call accusatory, which means that the demanding parties start and lead the debate, with the judge only serving as an arbiter between them.

    Both parties agree on a judge, called a Praetor. After he assesses the receivability of the case, he chooses a general formula, i.e. the steps the trial is going to take, and all the parties agree on how the formula is going to be applied to their case. The trial follows, and since all parties agreed to the formula, the decision cannot be appealed. Fun fact: a plaintiff can execute the judgement himself.

  3. Administrative process (c 50 BC-476 AD)
    It is called administrative because for the first time the judge was an employee of the government, but is also called the extraordinary process, because it was, when it was first instituated. As opposed to the formulary process's accusatory, it is an inquisitorial process: the judge starts and leads the debate.

    The plaintiff must address his complaint to the judge, who will examine it and eventually subpoena the defendant before the court, who is condemned by default if he's a no-show. This procedure pioneered concepts such as testis unus, testis nullus or the presumption of innocence. Administrative process also meant that the debates and the sentence were both read and written, and the sentence was not executed by the plaintiff or the police, but by officers of the judge. Since judges were government officials, in the provinces they were not allowed to own land or marry a local girl. More importantly, the fact that they were part of the administration meant they were part of a hierarchy: the idea of recourses and appeals started.

Early medieval legal process (5th-13th centuries)

Most of the early middle ages, at least on the law history front, were spent writing down the customs of the newly-arrived peoples who now ruled Europe, such as the Salic Law, the earliest example, which is still included in French law. Most of the law process was (non-Roman) accusatory up until the 13th century. This is why the accusatory process was brought to England by William the Conqueror and kept there before being exported to the U.S. and many places 'round the globe, despite its being inferior (though perhaps more theatrical) to the inquisitorial process.

The feudal system led to an accusatory pyramid: vassals referred to their superior, and disputes between men of differing ranks or obedience would lead them to refer to a superior of both of them -- just like in the beginning. In disputes between Kings they would often refer to the arbitrage of the Pope although they were prompt to ignore his rulings and go to war. Similarily, most offenses were sentenced with a fine, and that if the plaintiff was not paid he had a right to collect it himself, which obviously led to (or was used as a pretext for) more than one feudal war.

Confession was an important aspect of the process, giving birth to the guilty plea. Failing that testimonies would be heard, oaths would be pledged, ordeals would be suffered or a duel would resolve the issue. At this point, justice is still a very religious deal: the idea is that God, being just and merciful, would never let an innocent be punished. In context, the idea of a duel makes sense: as long as each side can choose champions of matching strength, then God would surely let the guilty party's side lose -- how else could it go?

The origins of modern legal process (13th-18th centuries)

During the 12th century, the roman formulary process was re-discovered, and with it the difference between a civil and a penal action. However the new method of accusation that is implemented has several invonvenients. Since the accuser starts and holds the debates, if he backs out before the trial is over, the offense will remain unpunished. The accuser also has to bear the financial load of the trial -- furthermore, if he loses, he can be accused of the crime he was accusing the defendant of. These risks led to the establishment of "public accusers", i.e. attorneys, which slowly grew into representatives of the King.

During the 13th century, the Church re-discovered the Roman administrative process and used it for itself: the Inquisition got nicknamed after its inquisitory process.

Over the course of the 15th century, the various Kings of continental Europe caught on and mimicked the inquisitory process for their penal courts. Specialized regional courts with public accusers were opened. As with the Inquisition which had admitted confessions as proof, the use of torture was sanctioned and regulated to obtain them, up until the end of the 18th or even the mid 19th century in some countries.

From the 16th century onwards the elements of contemporary inquisitorial process were added to the mix, at differing times and with different terminologies. I'm going to use the example of France, not just because I know it best, but because the French pioneered most of the following examples. Criminal investigations, called "information", a term still in use, become secret and written during the 16th century, led by a "lieutenant-criminel," who held the same role as the contemporary "juge d'instruction." Over the 17th and 18th century the main guarantees that are now the basis of law process are formalized, such as equality between the parties, communication of arguments, publicity, contradictory debate, etc. A lot of those elements would later be grafted onto the accusatory core of English/American/etc law with more or less luck.

I'm getting bored

I need to get some sleep, so I'm gonna wrap this up real quick. Mmmm, sleep. ... Ahem! Er, anyway, process law is actually a very young field of law study, probably because process has always been taken for granted. Studying process to make it as good as possible a trade-off between so many factors is a very interesting challenge, especially here in Europe, because European law is pretty much a blank page, and we're having to deconstruct and rebuild the spirit of the law in every European country in order to build something that works on top of it.

But more importantly, in a democracy law process is also a guarantee of civic liberty. It's what the USA PATRIOT Act seeks to alter. It's what makes courts a place where justice is served, not where the power of the State is arbitrarily dished out. And, like everything else, in order to know it, to understand it, and to protect it, you have to know its history, and I hope I helped you do that with this short sketch of law history.



Just a note on the function of the praetor.  The praetores were not judges.  They were magistrates tasked with the administration of justice, in the sense that (and this was so from the time the formulary process was used) they would assist the litigants in formulating the claim, whereafter it would be reduced to writing (the formula) and proceed to trial before a judge appointed in the formula by agreement between the parties.  In South Africa (and I would imagine also the UK and most countries that follow the Anglo-Saxon tradition) pleadings are usually ended with a prayer requesting "such further and alternative relief as plaintiff may be entitled to".  This is a direct result of the formulary procedure, as relief that was not asked could not be granted because the judge was limited to what the formula instructed him to do ("If you find in favour of the plaintiff, order X, but if you find in favour of the defendant, order Y").  Even today a litigant (certainly in South Africa) is bound to his pleadings in the sense that a court can not grant what is not requested (the principle is referred to as ne petita ultra = you can not grant beyond what has been asked).  So some bright Roman jurist managed to get beyond the confines of his pleadings by adding the general catch-all, with the result that if it appeared the relief sought was misplaced, the judge was vested with a discretion to grant a different remedy.  It was much the same as in arbitration proceedings today.

In the period before the formula procedure was adopted (i.e. prior to approximately 200 BCE), the praetor would assist the litigants in devising new actions.  It must be remembered that during the time the legis actio procedure was used, the question as to whether an individual was entitled to relief in law was strictly dependent upon an action existing for the wrong to be adjudicated in law - or to quote the maxim, ubi remedium, ibi ius (where the law recognises a remedy (= an action), there the law is).  In other words, if a litigant does not have a previously recognised action, he has no recourse as a matter of law.  In order to allow for change, the praetores would develop new actions and so assist the citizens (and later, from 242 BCE, also the peregini (= foreigners who were initially not allowed to use the remedies of Roman law) by the institution of the office of the praetor peregrinus) in order to give them remedies for new causes of action.


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