COURT SYSTEMS AND LAW‘‘chaos’’ may be useful in a strictly descriptive
sense, it is better to speak of these changes in the
term employed by Schumpeter (1976) as winds of
‘‘creative destruction,’’ for they did not simply
destroy but created what we speak of as the mod-
ern world. What they destroyed was basically feu-
dalism and the concept of status fixed at birth as
well as the conception of a divinely ordained, and
hence unchangeable, social universe. In Weber’s
classic phrase, we witnessed a ‘‘disenchantment of
the world’’ which left humans, in the words of the
existentialists, fated to create their own world and
take responsibility for it. This meant that law was
secular, torn loose from any religious basis, but
focused instead on what came to be called ‘‘posi-
tive law,’’ that is law enacted by legislatures and
parliaments. The transformation was not merely
procedural but involved substantive changes in
the assumptions of legal rights. These were the
now-familiar rights stated in the American and
French revolutionary documents—rights to liber-
ty and property, the opportunity to change one’s
status through one’s own efforts, the right to own
land in one’s own person rather than merely, as in
feudalism, as a serf or dependant of a feudal lord.
Along with these changes came fundamental
changes in loyalty and allegiance. Instead of fealty
and subordination to lord or guild master, alle-
giance came to be narrowed to a single, overarching
focus on the nation-state. The power of the church
was similarly destroyed or greatly attenuated, as in
England, and with that decline went the jurisdic-
tion of ecclesiastical courts as well, though some of
the traditions of canon law as, for example, in civil
procedure (where courts make use of written rec-
ords of proceedings and much less, than in com-
mon law systems, of oral testimony in trials), were
retained.
Although the state and the law created by
legislators came to make up the substance of law, it
should be noted that in time it became evident that
some controls were necessary on the state itself. In
the United States, this control is institutionalized
in the doctrine of the separation of powers, espe-
cially the ability of the courts to rule on the consti-
tutionality of legislative enactments as well as the
authority and legality of administrative acts and
regulations. The civil law countries also elaborated
a separation of powers but a very different one.
The concern there was the enormous power judg-
es had during the feudal period to act, usually in
support of the landed classes and the aristocracy.
As Stone (1986) points out, the French parlements
(panels of judges) had almost limitless power—
they could arrest seditious persons, ban public
gatherings, evaluate regulations of all kinds, super-
vise guilds and universities, and act as censors of
public morals. Somewhat similar powers were en-
joyed by the audiencia as representatives of royal
power by the Spanish conquerors of Latin Ameri-
ca. Such power led to their becoming wealthy and
powerful, which led, in the case of France, ironical-
ly, to their own undoing. Although their vast pow-
ers might (and did occasionally) act as a break on
royal powers, instead in a final act of defiance of
the royal power, they threatened to resign on the
very eve of the French Revolution. The Constitu-
ent Assembly voted to place them on indefinite
vacation and then abolished them altogether. In a
sense, their very arrogance and posturing led to a
recognition that they would be a permanent obsta-
cle to the new freedoms the revolutionaries wished
to establish. A result was that there was a serious
attempt to reduce the judge forever to a mechani-
cal figure who would simply carry out the ex-
pressed will of the parliament in the name of the
people. As such, the judge would have no inherent
powers at all but would become a clerk or servant.
He was not to presume even to interpret the will of
the parliament. But how was that to be achieved?
The answer was to create a code that could
answer all legal questions for the judge. In terms of
the triadic model, two adversaries would argue
before a neutral third who would simply delve into
the code, find the answer, and impose the solution
on them. In practice, as we can see from our
vantage point, matters could never be so simple.
As time went on, the concept of a legislative or
code monopoly of law gave way to systems where-
by the judge could declare legislative or adminis-
trative acts unconstitutional, but the process in-
volved much hedging by being careful, at first, at
least to locate the places in which such review
could take place outside the ordinary court sys-
tems in special constitutional courts (often not
even called courts) as in France, Germany, Italy,
and Spain, and in most Latin American countries,
though in the latter, more influenced by U. S.
practice, they were less reluctant to call them
courts. There was little of this problem in England,
which changed more slowly, retained more feudal
practices, and, most important, did not go through a