This section contains a topic brief on the role and purpose of courts. In this context, the links provided contain additional information on the following topic:
Judicial Independence and Accountability
Topic Brief: The Purpose of Courts
Judges, justice ministers, and others concerned with the performance of the judiciary in developing and post-communist states have begun stressing the desirability of enhanced access to courts. But how much access? For every conceivable dispute no matter how trivial or unimportant? Put differently, what are the courts for? And what should they be for?
The focus on access to courts provides an important counterweight to what is often perceived as the key issue in judicial reform: improved court performance. Indeed, judicial reform in many developed nations has concentrated on court performance to the exclusion of this equally important question. Surveying the literature of the late seventies and early eighties on delay reduction and procedural reform in developed countries, one close student of civil courts complained: "It is difficult to avoid the conclusion that a great deal of effort has been directed to the reduction of costs and delay, but little, if any, to an understanding of what it is that should be done more cheaply and expeditiously" (Jolowicz 1983).
The type of cases a nation's courts resolves represent the sum of a variety of policy choices, some conscious, some not. Policymakers should examine whether these policies add up, that is, given the resources available for the courts, whether the current caseload is optimal. The place to start is with an examination of the cases currently handled by the courts. What percentage are routine debt collection? What percentage are commercial? Property rights? And so forth.
Policymakers should then decide whether the current slate of cases coming before their courts reflects the best use of the system. One framework for analysis appears in PREM Note 26, which summarizes a widely cited paper in the Journal of Legal Studies (Shavell 1997). In brief: Lawsuits provide a mix of public and private benefits, and policies governing access should reflect this. Where substantial public benefits accrue from bringing certain types of actions, their filing should be encouraged, perhaps even by direct subsidy. Where the benefits are all, or mostly all, private, access should be restricted. At the least, court fees should reflect the full cost to the state of resolving such matters.
This line of thinking is reflected in a new theory of civil procedure now emerging in Europe (Zuckerman 2000). It is based on the twin concepts of proportionality and fair allocation of resources. The procedure for resolving a dispute must be proportionate to the value, importance and complexity of the dispute. Low value or simple disputes might be assigned to simpler and faster procedures consuming fewer court resources. Fair allocation of resources means that the limited resources of the administration of justice should be fairly distributed between all those who require access to justice, and not just the litigants before the court. To avoid backlogs it might be justified to ration the court time devoted to any given case, so that those at the back of the queue are not subjected to ruinous delays.
This brief was prepared by Richard E. Messick, Senior Public Sector Specialist, Public Sector Group, World Bank.
Jolowicz, J.A. 1983. "'General Ideas' and the Reform of Civil Procedure," Legal Studies 1983. Reprinted in Jolowicz, J.A. On Civil Procedure. Cambridge: Cambridge University Press, 2000.
Shavell, Steven. 1997. "The Fundamental Divergence between the Private and Social Motive to Use the Legal System," Journal of Legal Studies 26(2): 575-612.
Zuckerman, Adrian A. S. 2000. Reforming Civil Justice System: Trends in Industrial Countries. Washington, D.C.: The World Bank, PREM Note 46
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