The Faces Of Justice And State Authority


A leading legal scholar provides a highly original comparative analysis of how justice is administered in legal systems around the world and of the profound and often puzzling changes taking place in civil and criminal procedure. Constructing a conceptual framework of the legal process based on the link between politics and justice, Mirjan R. Damaska provides a new perspective that enables disparate procedural features to emerge as fascinating recognizable patterns.
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The Faces of Justice and State Authority: A Comparative Approach to the Legal Process

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A leading legal scholar provides a highly original comparative analysis of how justice is administered in legal systems around the world and of the profound and often puzzling changes taking place in civil and criminal procedure. Constructing a conceptual framework of the legal process based on the link between politics and justice, Mirjan R. Damaska provides a new perspective that enables disparate procedural features to emerge as fascinating recognizable patterns.
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Product Details

  • ISBN-13: 9780300051193
  • Publisher: Yale University Press
  • Publication date: 3/4/2005
  • Edition description: Reprint
  • Pages: 260
  • Product dimensions: 6.00 (w) x 9.00 (h) x 0.59 (d)

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A Comparative Approach to the Legal Process

By Mirjan R. Dama?ka


Copyright © 1986 Yale University
All rights reserved.
ISBN: 978-0-300-05119-3


Organization of Authority: The Hierarchical and the Coordinate Ideals


Systematic study of features impressed on the legal process by state officialdom requires a scheme to identify and describe different modes of organizing procedural authority. Although there is ample and rapidly growing literature on structures of authority in general, the peculiarity of the role of law does not permit the luxury of relying on established theory with only minor modifications. Hence I shall begin by developing a distinctive analytical framework.

The conceptual elements needed for this framework correspond to three questions often asked in confronting an organization of authority; the first concerns the attributes of officials, the second, their relationship, and the third, the manner in which they make decisions. Thus separated out, these three aspects of authority have long been suspected of influencing the shape of the legal process, and I shall use them as dimensions along which to define our categories. On the first dimension, the usual focus is on the distinction between professionalized, permanent officials and those who are untrained and transitory. On the second dimension, two lesser configurations deserve special consideration: under the first, officials are locked into a strict network of super- and subordination; under the second, they are rough equals, organized into a single echelon of authority. On the third dimension, the critical distinction is between decision making pursuant to special or "technical" standards, and decision making informed by undifferentiated or general community norms.

It is easy to see that these three larger aspects of authority are analytically independent, so that smaller variables from each dimension can be combined in various ways. For example, there is no necessary connection between the attributes of officials and their interrelations. Classical bureaucracy has been defined in terms of a professionalized corps of officials composed in a pyramid of authority; however, a "nonhierarchical" bureaucracy can be imagined where professionals pursue an ordered sequence of activity, each performing a segment of the common task, with no superior review of any prior decision: each decision in this cumulative and linear process is final. Nor is there a necessary connection between hierarchical ordering and professionalization: lay officials too can be situated in a network of subordination.

Variables from each dimension could be assembled in a great number of ways, and their implications for procedural form examined in a complex classificatory scheme. But such extensive taxonomic exercises are not required: our theme permits selection of only two composite structures of authority from a larger number of possibilities. The first structure essentially corresponds to conceptions of classical bureaucracy. It is characterized by a professional corps of officials, organized into a hierarchy which makes decisions according to technical standards. The other structure has no readily recognizable analogue in established theory. It is defined by a body of nonprofessional decision makers, organized into a single level of authority which makes decisions by applying undifferentiated community standards. The first structure I shall call the hierarchical ideal or vision of officialdom, and the second I shall term the coordinate ideal.

The reason for this narrow selection has been suggested: the two ideals of officialdom can be used to organize into new configurations many scattered but widely shared observations about salient differences between two important judicial organizations developed in the West and disseminated through the world—the traditional judicial apparatus on the European continent, and the traditional machinery of justice in England. To the extent to which the organization of judicial authority influences the design of the legal process, the hierarchical and the coordinate ideals thus offer a convenient perspective upon the always intriguing, never fully grasped contrast between Continental and Anglo-American styles of administering justice.

It hardly needs saying that actually extant features that distinguish the Continental and English judicial organizations will not be fully captured in these two constructs. This is because tendencies observed in actual organizations—for example, the tendency toward professional decision making in one and the tendency toward lay decision making in the other—become constitutive elements of these two ideals even if these tendencies were never fully realized on the Continent and in the British Isles. It is precisely this relationship between reality and these two constructs that permits the use of the hierarchical and the coordinate ideals to illuminate reciprocities between procedural authority and procedural form on a scale broader than the conventional opposition between common-law and civil-law systems. For example, in most communist countries judicial organizations have carried tendencies toward overall hierarchical leadership further than have traditional Continental systems, so that the ideal of a hierarchical apparatus may help in analyzing some characteristics of the socialist legal process as well.

The special emphasis here on traditional organizations of authority may come as a surprise. It is often said that broadly similar circumstances in contemporary states have brought the judicial organizations of various countries closer together than they were in the past. Pronounced trends toward professionalization, centralization, and organized expertise have been reported everywhere, so that some have even predicted that centralized bureaucracies will inherit the earth. Is it anachronistic, then, to dwell on the recessive contrast between bureaucratic and nonbureaucratic authority rather than on internal variations of modern bureaucracies? The short answer is that modern pressures toward bureaucratization of the machinery of justice interact with inherited structures in complex ways and produce hybrids that can hardly be analyzed without regard to their historical antecedents. Nor have traditional structures become totally obsolescent, or surrendered to modern trends in equal measure. The American machinery of justice, for example, while increasingly professionalized and centralized in this century, continues to be more deeply permeated by features embodied in the coordinate ideal than are judicial administrations of any other industrial state in the West. These perduring features not only account for some perplexing tensions in the modern American administration of justice but may also illuminate, in part, the widening gap between American and British legal sensibilities.

Let us then take a closer look at the hierarchical and the coordinate ideals of officialdom by concentrating on those aspects most relevant to the study of procedural form.


First, what are the main implications of professionalization, vertical ordering of officials, and attachment to technical decision making that characterize the hierarchical vision of authority ? Most of these implications are widely recognized and quite uncontroversial. However, under analysis, contours will emerge of an institutional ambience which the traditional Anglo-American decision maker would profoundly dislike, while his Continental counterpart would find this ambience much more congenial, even if it caricatures the environment in which he is accustomed to operate.

Professionalization of Officials

Permanently placed officials carve out a sphere of practice which they regard as their special province. Over time, they also develop a sense of identity with similarly situated individuals, so that lines become rigid between "insiders" and "outsiders." If outside participation in the making of decisions is imposed upon such officials, it is viewed, at best, as meddling which deserves to be contained and made innocuous. How this official exclusivity affects procedural form will be a recurring theme throughout this volume.

Long terms of office create the space for routinization and specialization of tasks. Routinization of activity implies that issues that come before the official are no longer apprehended as presenting a unique constellation of circumstances calling for "individualized justice." Choices are also narrowed: while there may be many ways to go about solving a problem, only one emerges as habitual. A considerable degree of emotional disengagement also becomes possible. Specialization implies, of course, that only certain factors—those within a narrow realm—play a part in decision making. As a consequence of habitualization and specialization, a professional's official and personal reactions part company: he acquires the capacity of anesthetizing his heart, if necessary, and of making decisions in his official capacity that he might never make as an individual.

This schism between office and its occupant promotes institutional thinking: impulses to bypass institutional interests and to consult one's conscience are too "protestant" to be tolerated. Judgments become pronouncements of an impersonal entity (a curia) even where a single individual is entrusted with their rendition. And because the institution must be univocal so as not to be equivocal, the announcement of a judgment made by several officials nullifies prior internal dissent: those who disagree must now repress their feelings. In the vision of officialdom now under discussion, the widespread failure of Continental jurisdictions to publish dissenting opinions—or sometimes even to disclose the names of judges who voted for a decision—far from being undesirable, can assume a sort of melancholy dignity. Like drones who die having fertilized the queen bee, so dissenting and concurring voices, instrumental in the formation of an institutional decision, should not survive its announcement.

Strict Hierarchical Ordering

Officials are organized into several echelons: power comes from the top, trickling down the levels of authority. Great inequalities among officials at different hierarchical positions are characteristic. At the lowest level are petty officials—parvuli, in medieval Continental legal texts—with limited responsibilities of doing the spadework for the organization. However, they jealously guard their bailiwick against outsiders, no matter how modest the qualifications for the job may be. (Serving documents and minor ministerial tasks are examples of such duties.) Each successive higher echelon carries considerably greater responsibility and prestige. Officials of the same rank are equals, but where a conflict among them arises, these "homologues" are not authorized to settle it by themselves through accommodation and compromise. Contested matters must be referred to the common superior for disposition. It is only at the top of the authority pyramid (assuming it is not monocephalous) that clashes of opinion are necessarily resolved by accommodation.

Cementing the components of authority are a strong sense of order and a desire for uniformity: ideally, all are to march to the beat of a single drum. In larger organizations, of course, the supreme authority cannot keep all decisions to itself, charging lower echelons with only their preparation and execution. Of necessity, subordinates must be empowered to make first-order decisions, or, to use characteristic Continental terms, to decide "in the first instance." But the logic of strict hierarchization requires that such decisions be subject to superior review on a regular and comprehensive basis: wide distribution of unreviewable authority to lower levels would strain the animating assumptions of the whole authority structure. Understood in this sense, official discretion is anathema.

It is important to observe the tension between individualized decision making and comprehensive superior review. If administrative incapacitation is to be avoided at the top echelon, where there are fewer decision makers than at the base, superior audits must be restricted to a limited number of points, preferably those that lend themselves easily to verification. In other words, high authority expects lower levels to schematize the complexity of matters they are called upon to decide. Of course, this schematization is facilitated in hierarchies that also insist that officials be professionals: routinization of activity increases one's capacity to "typify" situations. However, this capacity is not equally distributed across the hierarchical apparatus. Initial decisionmakers are closer to the messy details of life, including human drama, and therefore can less readily be immunized from individual aspects of cases. Meanwhile, higher officials face realities prepackaged or edited by their subordinates; individual destinies are less visible. Because of this mediation, higher-ups can more easily disregard the "equities" of the cases they must decide. The advantage of their insensitivity to individual circumstances is that they are free to concern themselves with correcting inconsistencies in low-level decisions and with cultivation of broad ordering schemes for decision making. As in the ordering of angels, then, the superiority of officials increases in proportion to the greater generality of their knowledge. It is in this sense that, as some students of bureaucracy have claimed, "the top understands universals; the lower echelons understand particulars."

Because it implies differentiation of functions among specialists, professionalization—the first dimension of the hierarchical ideal—can promote discord. When professionals are stratified in a chain of subordination (the second dimension of the ideal) and thus are under pressure toward unity and obedience, then the possessive "turf" psychology of specialists is mitigated. The specter of superior audits promotes an ethic of cooperation, and the dynamics of hierarchical promotion contribute to a spirit of "team playing." Those officials whose desire to make a special impact obstructs the harmonious functioning of the organization are likely to be bypassed for advancement.

Technical Standards for Decision Making

Two basic approaches to technical decision making should be distinguished, although they are often combined in judicial organizations. One approach is for officials to assess the consequences of alternative decisions and then to choose the alternative that seems most attractive in terms of a posited organizational goal: the decision is justified with reference to the desirable consequences believed to flow from it. Self-consciously formal techniques have been developed to assist the decision maker in performing such consequentialist (instrumental) calculations, and the influence of such techniques is growing. This first approach, which I shall call the technocratic orientation, will remain on the periphery, nevertheless. I shall consider this orientation only in discussing aspects of the legal process in some intensely activist states where matters that come before the courts increasingly require technical expertise of this consequentialist sort.

The second approach is prevalent in traditional apparatuses of justice. Under this approach, which I shall call the legalistic, officials are expected to make a particular decision when facts are found that are specified under a normative standard. In contrast to the technocratic orientation, the attainment of desirable consequences is not an independent justificatory ground. The propriety of the decision is evaluated in terms of fidelity to the applicable standard. This is not to imply that the legalistic approach is indifferent to consequences resulting from official action: those who fashion the standards are expected to make the necessary instrumental calculations and to design standards capable of advancing organizational goals. Moreover, even specific rules necessarily contain an element of indeterminancy and can be interpreted in light of underlying goals so as to lead to desirable outcomes.

If the language of standards were infinitely flexible, space would exist for consequentialist and legalistic approaches always to meet in harmony. But hierarchical bureaucracies set limits on the arbitrary Humpty Dumpty attitude toward the language used in standards: conventions are established that foreclose many theoretically possible paths of interpretation which easily occur to an institutionally unrestrained legal imagination. A point can thus be reached where adherence to a standard can frustrate the achievement of a desirable end. At this point, the distinctive nature of the legalistic orientation surfaces: the standard must be applied, even if it produces negative results.

Excerpted from THE FACES OF JUSTICE AND STATE AUTHORITY by Mirjan R. Dama?ka. Copyright © 1986 Yale University. Excerpted by permission of Yale UNIVERSITY PRESS.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents


Acknowledgments....................     ix     

Introduction....................     1     

I. Organization of Authority: The Hierarchical and the Coordinate Ideals...     16     

II. Process before Hierarchical and Coordinate Officialdom.................     47     

III. Two Types of State and the Ends of the Legal Process..................     71     

IV. The Conflict-Solving Type of Proceeding....................     97     

V. The Policy-Implementing Type of Proceeding....................     147     

VI. Authority and Types of Justice....................     181     

Afterword....................     240     

Index....................     243     

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