Martin Shapiro's Courts: A Comparative and Political Analysis
is one of those special books that changes the way scholars view a particular subject. Typically, political scientists and lawyers have considered courts independent, apolitical institutions that apply predetermined legal rules in a rational manner. Shapiro turns this narrative upside-down. He shows that courts are in fact political actors that respond to political incentives. He begins Courts by discussing the conventional prototype of courts. He shows that some element of consent is required for legitimate dispute resolution. In tribal societies, this was resolved by direct consent obtained by the "big man" adjudicator from each of the parties. Losing parties would abide by the decision because they had agreed in advance and because they are part of the same social fabric. In modern societies, when parties might come from different parties of country - or even across the world - it becomes more difficult to compel them to accept an adjudicator's judgment. Governments had to increase the power of judges to compel losing parties to appear at trial and obey judgments. However, in order to compensate for this lack of consent, Shapiro argues governments were forced to grant judges some element of independence. Fairness and justice compensate the parties for their lack of consent and therefore losing parties generally at least grudgingly comply.
