As modern states were developing in Europe during the medieval period, local feudal lords held power of governance over people living their territories. Part of the responsibility of the lord or monarch was to adjudicate disputes. For the sake of simplicity, I will use the term king here, though we should understand that there were multiple titles for people who filled this role depending on the structure of the particular territory: emperor/empress, king/queen, prince/princess, duke/duchess, knight/dame, etc. People would appear before the king at the royal court to present their cases, and the king would issue a decision about what should happen. There could also sometimes be some ability to appeal to a “higher court” — where the original decision was made in the court of a vassal, the subjects could appeal to the liege lord who could then change the decision.
Understandably there were many rules about how to interact with royalty (as there continue to be). This is an expression of power, and manners at court became more important as the reality of state power and its basis in violence became less overt. Royal power in particular became less directly involved in violence over time: George II (reign 1727-1760) was the last king of England to lead his troops into battle.
Now, the power of the monarch in a constitutional monarchy like Canada is so diminished that the Queen’s representative is reproved for even expressing opinions or preferences. Protocol becomes a larger proportion of the role for these heads of state. The mistaking of protocol for power may be best illustrated by the image of Louis XVI fleeing the revolution wearing a pink wig instead of riding a fast horse [John Ralston Saul, Voltaire’s Bastards, p 63].
As the power of states was further consolidated, territories grew and kings tried to limit the power of their vassals and this included their power to preside over disputes. The function of kings as judges became unwieldy. It wasn’t possible for one person (or one council) to adjudicate all the disputes of a modern nation state, and as states became larger disputes became more complicated. So the authority to resolve them was given to specialist judges, who could be where they were needed and have the legal knowledge required to maintain order, commercial activity, and other elements of a functioning country, and juries. Here is a description of this process over time with a timeline for the descendants of the Curia Regis or Kings’ Council in England.
These judges presided over courts that were descendants of royal courts, and they retained some if the elements of pomp that those predecessors had. As courtiers throughout history have known, there is power in knowledge of royal protocol, and in turn lawyers came to express their power by knowledge of court procedure. These have similar purposes: to show inclusion in groups of power, to demonstrate respect for the power institutions hold, to keep out outsiders, and to demonstrate that everyone recognizes the gravity of the proceedings.
These purposes are not all illegitimate. The ability to hire a lawyer and pay for someone to argue your case in a way that shows inclusion in a dominant group is an empowering thing. This is why First Nations in Canada were forbidden from doing so for so long. The moment of appearing in court is also a grave one. Decisions that unjustly ruin lives or right injustices can equally be made there, and it is appropriate that everyone involved take it seriously.
The problems we are facing now with these formal court procedures are that it is becoming less feasible for people to hire lawyers, so more people are representing themselves. This brings them up against the traditions developed over hundreds of years to demonstrate the power of the monarch, and then the state, as the concepts of the head of state and the state itself were separated.
When someone appears in court, they are in the act of being governed. They have invited the state into their affairs and made those affairs public. The public (as well as the monarch or other head of state) is symbolically present. This is why courtrooms and decisions in Common Law countries are open to the public unless there is a compelling reason not to make them so. It is so justice will not only be done, but also so that it will appear to be done.
I have read that when we observe that something in the ancient past is modern, we are in fact commenting on something in the modern world that is ancient. The roles and traditions of courts and judges and lawyers all have ancient roots, and whether they continue to reflect the needs of our society for justice today is something we should consider carefully.
There are also ancient traditions that can illuminate necessary outlets for remediating injustices. One of the most important roles for medieval queens was as intercessor to the king. This allowed the king to demonstrate mercy where it was needed while not looking weak. Instead he would be granting a favour to his wife and reinforcing the gender norm of women as merciful. Melania Trump has sometimes filled this role, such as when she asked for the policy of separating families of migrants to be changed. Interestingly Kim Kardashian seems like another excellent example of this principle, when she speaks with politicians to advocate for prison reform and gives them some reflected star power in the process. Of course, having someone intercede on your behalf is not an option that is open to everyone.
Tracing the history of modern courts may help to illuminate why things are as they are and, in parallel, point to ways to move forward. When we look at the courts and try to reimagine what they should look like for us today, it would be prudent to consider their origins, and how we can ensure that we maintain some of the good elements that shouldn’t be lost.