Reading “The Prototype of Courts” was not easy, and most of issues Shapiro discusses, are not self-explanatory, but the aftermath of my reading was definitely rewarding. This reading needed to be studied throughout after examining “Of the Laws of England” about the nature of common law that became the foundation of the current US Constitution.
Shapiro raises many important points in his work: how law and the way the legal triad operates originated; what are different bases and explanations of the legal system and how the contemporary one is connected with the one it came from; what are different implications and consequences of the courts; how courts are connected with the other branches (being legislative and executive) through check and balances and whether this connection is legit. Shapiro is critical of the separation of powers as well as he is aware of the lessons and different explanations of legal and civil systems. I think (and I will explain further in the following paragraph) that his point was that legal order shapes the social order and hence, what is encouraged/discouraged/praised/followed in the society. How is it done? May depend. Shapiro doesn’t disagree with Karl Marx, in fact, he leaves room for a reader to extend this thought of his that the courts are inevitably and substantially connected with legislature and the powerful ones. I found this fascinating and hidden in “Courts as Lawmakers” and the “Logic of Courts” that not only the people in direct power and making laws (Congress, President) but the Courts are powerful and it is historically and practically explained. There should be a third party to resolve issues too big for a society to agree upon (like in case of Supreme Court decisions) or too controversial for a couple people to find a compromise on (Shapiro’s examples of divorce, torts and negligence, etc.), therefore, there is “A COURT” who is here to assist. The role that the courts take thereof due to becoming a ruling, deciding, lawmaking and all-respected organ, is what Shapiro shows without much admiration but with some thought left for a reader: do we actually understand how important the courts’ decisions are in shaping the social order, not only legal procedures for criminals? Shapiro thinks that the notion of courts is slippery in many cases and leaves room for each case, too, and he definitely thinks that the courts are almost a live body since they are progressing; what was unknown and unreadable before becomes interpreted. Moreover, the courts are mighty and impossible to avoid: the way varying systems operate, implicitly and explicitly includes the role of courts.
I had a lot of thoughts after studying Shapiro. The word “rigid” used in the reading, always reminds me of Roe v Wade’s Court’s reasoning where word “rigid” was used in order to describe too radical views of some groups towards beginning of life. The other part of the reading (especially The Courts and the Regime on pp. 22 to 25) reminded me about two famous US Supreme Court decisions that were overruled: Brown overruling Plessy and Lawrence overruling Hardwick. If I only start about the rationale of Bowers v Hardwick of 1986, the response will not be enough to express my total dissent, but I can totally apply this thought of mine here: 17 years after Bowers, the Court in its Lawrence decision announced what the regime AND the society were ready for, and it strictly relates to Shapiro’s reading, in my view. Same applies to Brown: segregation was no longer supported and welcomed, and basing its decision on “intangible” factors never found in the Constitution, the Court overruled Plessy. To me, it was totally a political decision with a total involvement of social and judicial spheres. Another example I thought of (and it connects to the common law reading as well) is about judges’ mission not to make a new law but to interpret the case using precedents and rules. All right, but to what extent are the nine people (in the US) or one/two (in Shapiro going back to feudal, Ottoman, Kings times) entitled to do so? Here is when Shapiro’s logic of reciting history of courts and expressing opinion and analyzing, all comes together. The courts are inevitably connected with the other branches, and they DO ACT WITHIN THE INTERDEPENDENCE OF THE SOCIAL REGIME. Hence, they not only establish the “legal order”, but they establish the norms and understandings of social life and what the society is encouraging or discouraging. Finally, I have been to Small Claims courts multiple times due to circumstances and nature of my previous job, and the “triad” that Shapiro is talking about, does work on the side of both the regime and one of the parties. Some rules he is describing (about inheritance, remedies, negligence specifically and others) are still true in the modern society, and it makes me feel that we did take so much from the Roman tradition and common law in fact. Defamation comprised of both libel and slander, is one of the hardest spheres to find a dissent lawyer in; and the way the courts through time interpret it, has changed dramatically with the emergence of social media recently. Again, it would be a never ending process of going back and forth (in case of defamation for example) if courts did not exist, and many other cases are falling into the same category. I come to this interesting paradox after all that I actually felt during the Shapiro’s reading: courts are so inevitable but courts are so dependent. I am looking forward to discuss this reading in class, it’s versatility got into me.
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Reading “The Prototype of Courts” was not easy, and most of issues Shapiro discusses, are not self-explanatory, but the aftermath of my reading was definitely rewarding. This reading needed to be studied throughout after examining “Of the Laws of England” about the nature of common law that became the foundation of the current US Constitution.
Shapiro raises many important points in his work: how law and the way the legal triad operates originated; what are different bases and explanations of the legal system and how the contemporary one is connected with the one it came from; what are different implications and consequences of the courts; how courts are connected with the other branches (being legislative and executive) through check and balances and whether this connection is legit. Shapiro is critical of the separation of powers as well as he is aware of the lessons and different explanations of legal and civil systems. I think (and I will explain further in the following paragraph) that his point was that legal order shapes the social order and hence, what is encouraged/discouraged/praised/followed in the society. How is it done? May depend. Shapiro doesn’t disagree with Karl Marx, in fact, he leaves room for a reader to extend this thought of his that the courts are inevitably and substantially connected with legislature and the powerful ones. I found this fascinating and hidden in “Courts as Lawmakers” and the “Logic of Courts” that not only the people in direct power and making laws (Congress, President) but the Courts are powerful and it is historically and practically explained. There should be a third party to resolve issues too big for a society to agree upon (like in case of Supreme Court decisions) or too controversial for a couple people to find a compromise on (Shapiro’s examples of divorce, torts and negligence, etc.), therefore, there is “A COURT” who is here to assist. The role that the courts take thereof due to becoming a ruling, deciding, lawmaking and all-respected organ, is what Shapiro shows without much admiration but with some thought left for a reader: do we actually understand how important the courts’ decisions are in shaping the social order, not only legal procedures for criminals? Shapiro thinks that the notion of courts is slippery in many cases and leaves room for each case, too, and he definitely thinks that the courts are almost a live body since they are progressing; what was unknown and unreadable before becomes interpreted. Moreover, the courts are mighty and impossible to avoid: the way varying systems operate, implicitly and explicitly includes the role of courts.
I had a lot of thoughts after studying Shapiro. The word “rigid” used in the reading, always reminds me of Roe v Wade’s Court’s reasoning where word “rigid” was used in order to describe too radical views of some groups towards beginning of life. The other part of the reading (especially The Courts and the Regime on pp. 22 to 25) reminded me about two famous US Supreme Court decisions that were overruled: Brown overruling Plessy and Lawrence overruling Hardwick. If I only start about the rationale of Bowers v Hardwick of 1986, the response will not be enough to express my total dissent, but I can totally apply this thought of mine here: 17 years after Bowers, the Court in its Lawrence decision announced what the regime AND the society were ready for, and it strictly relates to Shapiro’s reading, in my view. Same applies to Brown: segregation was no longer supported and welcomed, and basing its decision on “intangible” factors never found in the Constitution, the Court overruled Plessy. To me, it was totally a political decision with a total involvement of social and judicial spheres. Another example I thought of (and it connects to the common law reading as well) is about judges’ mission not to make a new law but to interpret the case using precedents and rules. All right, but to what extent are the nine people (in the US) or one/two (in Shapiro going back to feudal, Ottoman, Kings times) entitled to do so? Here is when Shapiro’s logic of reciting history of courts and expressing opinion and analyzing, all comes together. The courts are inevitably connected with the other branches, and they DO ACT WITHIN THE INTERDEPENDENCE OF THE SOCIAL REGIME. Hence, they not only establish the “legal order”, but they establish the norms and understandings of social life and what the society is encouraging or discouraging. Finally, I have been to Small Claims courts multiple times due to circumstances and nature of my previous job, and the “triad” that Shapiro is talking about, does work on the side of both the regime and one of the parties. Some rules he is describing (about inheritance, remedies, negligence specifically and others) are still true in the modern society, and it makes me feel that we did take so much from the Roman tradition and common law in fact. Defamation comprised of both libel and slander, is one of the hardest spheres to find a dissent lawyer in; and the way the courts through time interpret it, has changed dramatically with the emergence of social media recently. Again, it would be a never ending process of going back and forth (in case of defamation for example) if courts did not exist, and many other cases are falling into the same category. I come to this interesting paradox after all that I actually felt during the Shapiro’s reading: courts are so inevitable but courts are so dependent. I am looking forward to discuss this reading in class, it’s versatility got into me.