Judges on Judging: Views from the Bench

By David M. O'Brien | Go to book overview

27
The Role of the Courts in Contemporary Society

RUGGERO J. ALDISERT Judge, United States Court of Appeals, Third Circuit

To describe the role of the courts in contemporary American society is a Janus-faced assignment. It can be a description of what we are or an expression of what we should be. To propose what we should be requires that we know what we are; to know what we are, we must first know what we were; and to appreciate what we were requires an overview of two centuries of American judicial experience.

To be sure, our judicial systems were English in origin and in practice. Colonial courts had functioned from the beginning as integral parts of the British judicial system. When the colonies changed to statehood and separate courts were established within the state and federal sovereignties, an English model was adopted in each of the several jurisdictions. Aside from cutting the umbilical cord from the Privy Council, substantive laws and procedural rules of the original states did not undergo major revolutionary changes. By nationality we were Americans; by legal tradition we were still English. American judges in the early nineteenth century took a traditional view of their function. The English common law judge sat as a settler of disputes between private parties, deciding questions of "lawyer's law" and pronouncing what Roscoe Pound would later call "rules in the narrower sense," precepts attaching a definite legal consequence to a definite, detailed state of the facts. 1 But the American environment was different from the English, and soon began to make special demands on the courts. In America, unlike Great Britain, 2 a system of dual sovereignties existed. And, in America, a written constitution had been adopted--a primal document tracing its origins in part to the Magna Carta and the Petition of Right, and in part to the peculiar exigencies of the new "united states" where sovereign power was to be divided between the state governments and the national government.

Within 14 years of the Constitution's adoption, however, a new dimen-

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