International Arbitration, from Athens to Locarno

By Jackson H. Ralston | Go to book overview

CHAPTER II
ARBITRAL TRIBUNALS AND COURTS

15. Institution of courts . -- Having considered briefly the law and its sources, let us turn to the institution of courts. We have to recognize that the state is an entirely artificial body created for the purpose of carrying out through common agencies those functions of general import which it is impossible for the individual to perform in his own person. We may believe that when it becomes possible for the state, for all and in the name of all, to exercise certain powers more beneficially than they can be exercised by the individual, at that moment the duty of the state arises. It was from some experience of the fact that the individual could not in the interest of all be trusted to act as his own justiciary that the state stepped in and organized courts of justice, a purely artificial and appropriate but not necessarily exact way of arriving at the truth of matters. Bearing in mind the fact that acts which are anti-social and therefore wrongful usually carry with them their own punishment, there would have been slight need for the formation of courts were it not for the further fact that individuals vary greatly in power and the natural consequences which might fall heavily upon the more feeble could pass by the more powerful scarcely making any impression. It was, therefore, in the interest of the feeble that courts were organized to give full and undoubted effect to that natural law whose effects were minimized by the artificial power of some individuals.

16. Form and purpose of courts . -- Of course, there is no particular sanctity in the form of courts. They are at best a crude way of arriving at justice, but, nevertheless, they have been accepted as offering the most advantageous way of reaching it, bearing in mind the infirmities of human nature.

It seems to have been the earlier feeling of English courts that in some way through their instrumentality Providence would interfere to protect the innocent and punish the guilty and that they were merely supervisors of this providential intent. Thus we find trial by battle and the various tests by ordeal of the guilt or innocence of witches. The more modern and more general view of courts, however, is that they are to administer justice in as large a measure as may be humanly possible. It is not to be overlooked, however, that in the beginning the preservation of order rather than the attainment of justice was the end sought and that such ideas of justice as existed were extremely crude.

-21-

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