Courts as Institution of Power
Introduction
For my final paper I have selected as the institution of Courts as the focus of my analysis using the lens of sociology of power.
Why the Courts? As a lawyer-sociologist the Court is a very enigmatic institution where forms of power, power structures, and power relations always matter and is apparent based on its internal rules, nuances, and dimensions.
And as a lawyer-sociologist, I’ve been very much familiar and interested in critically looking at Institution of the Court as a place that generates the construction of what justice and the rule of law is. This paper aims to start the sociological discussion on the power structures, bases, and uses in the often-unexplored institution like the Courts thereby adding on the field of Socio-Legal Studies.
Courts as Institution of Power in the Philippines
A. Background
The paper will examine key characteristics of the Court Institution particularly here in the Philippines from a sociology of power perspective.
The paper is exploratory using the author’s critical participant observation, available cases, news items, and paper written about the courts in the Philippines.
For the limitation as this paper is exploratory most of the materials here will be taken from secondary sources and the critical observation of the author.
For Reflexivity, as the author is both a lawyer and sociologist who identifies himself with the Critical School (the Frankfurt School) his lens of analysis is very much “colored” using this lens. But since the author is a product of two disciplines with very different epistemology and pedagogical ideology it is believed that the same will work in his favor while doing the paper.
For analytical and theoretical purposes, the paper will look at the institutions of the court using the lens of critical theory that “analyzes competing power interests among groups and individuals within a society, identifying who gains and who loses in specific situations” (Steinberg & Kincheloe, 2010).
The fully understand the power structures in the Philippine Courts it is incumbent upon any paper to discuss first the Legal and the Historical dimension of the Institution before one can undertake a sociological analysis of power its power structures.
B. Philippine Courts it’s Legal Basis
Constitutionally, Courts holds and uses what is called judicial power that rests with the Supreme Court and the lower courts, as established by law (Art. VIII, sec. 1 of the 1987 Constitution).
The court has a duty to settle actual controversies involving rights which are legally demandable and enforceable (Art. VIII Sec. 1 (2)).
Actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or dispute. Meaning Philippines Courts only decide matters which are factual and based on “real” life events and not those which are fictitious or hypothetical.
By virtue of Article VIII, Section 8, appointments to the judiciary, which includes Justices from the Supreme Court (SC), the Court of Appeals (CA), Court of Tax Appeals (CTA), Sandiganbayan (SB), to Judges of Regional Trial Court (RTC), and Municipal Trials Courts (MTC) are made by the President of the Philippines based on a list submitted by the Judicial and Bar Council (JBC) which is under the supervision of the Supreme Court. Its principal function is to screen prospective appointees to any judicial post. JBC is composed of the chief justice as ex-officio chairman, the Secretary of Justice and representatives of Congress as ex-officio members, and a representative of the Integrated Bar, a professor of law, a retired member of the Supreme Court and a representative of the private sector as members.
B. Qualifications to be a Judge or a Justice in the Philippine Courts
Primary Qualifications
Members of the Philippine Judiciary must be of proven competence, integrity, probity, and independence and members of the Philippine Bar. (Sec. 7, Art. VIII, Constitution)
Additional Qualifications
For Justices/Members of the Supreme Court must be at least forty years of age and must have been, for fifteen years or more, judges of a lower court or engaged in the practice of law in the Philippines. (Sec. 7, Art. VIII, Constitution)
For Justices/Members of the Court of Appeals must possess the same qualifications as those prescribed for Members of the Supreme Court. (Sec. 7, B.P. Blg. 129)
Judges of the Regional Trial Courts and of the Family Courts must be at least thirty-five years of age and, for at least ten years, have been engaged in the practice of law in the Philippines or have held a public office in the Philippines requiring admission to the practice of law as an indispensable requisite. (Sec. 15, B.P. Blg. 129; Sec. 4(a) R.A. №8369.)
Judges of courts of the first level (Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, Municipal Circuit Trial Court) must be at least thirty years of age and, for at least five years, have been engaged in the practice of law in the Philippines, or have held a public office in the Philippines requiring admission to the practice of law as an indispensable requisite. (Sec. 26, B.P. Blg. 129)
From a sociological standpoints member of the Court (either a Justice or a Judge) came from diverse career background, field of legal practice, specialization, years of experience, law school training, law school, age, and sex which greatly contributed in the diversity of the Court even if they share the same Laws and Rules.
B. Sociology of Court System
Courts are formal institution that has the power to make decisions (judgments) based on law and the coercive power of authority to enforce those decisions. (Bell, 2020)
Courts cover broad perspectives (Gifis, 1998). First, the court is a part of the judicial branch of the government consisting of a judge or a few judges responsible for adjudging disputes under the laws. Second, the court represents a judge or judges on the judicial bench. Third, the court is a legislative assembly that interprets laws. Fourth, the court stands for a legal system or process.
Although many officials work in and around courtrooms, none has the prestige of the judge, who is responsible for the administration of the court and its reputation for honesty and impartiality and the occasional controversial decisions. The courtroom is designed so that attention is focused on the judge, who sits on a pedestal above everyone else. Any visitor to a courtroom will notice that the visitors’ gallery never rises above the judge and that those who work in the courtroom are not allowed to sit or stand at the judge’s level. The judge is the only official in the courtroom who wears special attire — a robe. When judges enter the courtroom, everyone rises, and all attention is directed at the judge, who is addressed as “Your Honor.” The judge alone interprets the rules that govern the proceedings, and judges see themselves as autonomous decision makers and the “boss” of everyone else in the courtroom (Jacob, 1997; Spohn, 2009 as cited in Vago & Barkan, 2017)
In reference to a sociological theory of courts it is stated that: “The devices for effecting degradation vary in the feature and effectiveness according to the organization and operation of the system of action in which they occur. In our society the arena of degradation whose product, the redefined person, enjoys the widest transferability between groups has been rationalized, at least as to the institutional measures for carrying it out. The court and its officers have something like a fair monopoly over such ceremonies, and there they have become an occupational routine. This is to be contrasted with degradation undertaken as an immediate kinship and tribal obligation and carried out by those who, unlike our professional degraders in the law courts, acquire both right and obligation to engage in it through being themselves the injured parties or kin to the injured parties” (Garfinkel 1956:424).
On a specific note, Philippine Courts from a sociological standpoints member of the Court (either a Justice or a Judge) came from diverse career background, field of legal practice, specialization, years of experience, law school training, law school, age, and sex which greatly contributed in the diversity of the Court even if they share the same Laws and Rules.
Looking at Courts & Judges/Justices using the lens of Sociology of Power
A. Courts — Judges and Justices the Apex of Power
There is a joke among legal professionals calling the Justices of the Supreme Court as “gods of Padre Faura” an allegory based on the fact that the Supreme Court and its 15 Magistrates or Justices are the final arbiter of all cases within and affecting the Filipino citizen.
The same is true for judges of lower courts, they are the “gods” of their court room and they provide decision relative to the life, liberty, and property of the litigants. They rule on motions filed by opposing lawyers. They dominate the court room based on their legitimate authority. They have the force of law in their back ordering people appearing in the court proper decorum or else they would be subjected to the contempt of court for not being in their proper behavior.
Force, Domination, Authority, and Legitimation of acts and decision are always in the back and in support of the Court as institution and of judges and justices as wilder of the power reposed to the courts.
B. A Weberian Sociology of Power in Courts
Power as Domination
German sociologist Max Weber, who said that power is the ability to exercise one’s will over others, further redefined power as the chance that an individual in a social relationship can achieve his or her own will even against the resistance of others. Admittedly the definition given is a very broad definition and includes a very wide range of types of power. In order to make this definition more useful in the study of history and society, Weber suggests domination as an alternative, or more carefully defined concept. Weber defines domination “as the probability that certain specific commands (or all commands) will be obeyed by a given group of persons” (Weber 1978)
Domination as Authority
Weber defines authority as legitimate forms of domination, that is, forms of domination which followers or subordinates consider to be legitimate. Legitimate does not necessarily imply any sense of rationality, right, or natural justice. Rather, domination is legitimate when the subordinate accepts, obey, and consider domination to be desirable, or at least bearable and not worth challenging. It is not so much the actions of the dominant that create this, but rather the willingness of those who subordinate to believe in the legitimacy of the claims of the dominant.
Weber outlined three major types of legitimate domination: traditional, charismatic, and legal or rational. For the sake of this paper will focus on the Legal or Rational Authority.
Legal or Rational Authority the source of judicial power of courts
This is authority or legitimate domination resting on “rational grounds — resting on a belief in the legality of enacted rules and the right of those elevated to authority under such rules to issues commands”
There are various ways that legal authority could develop. Systems of convention, laws and regulation develop in many societies, and there are many different principles of legality that occur. The development of law in the West leads to establishment of a legal system, such that there is a rule of law, written legal codes, legal rights and rules, and the “professionalized administration of justice by persons who have received their legal training formally and systematically”.
With the development of a rational legal system, there is likely to be a political system which becomes rationalized in a similar way. Associated with this are constitutions, written documents, established offices, regularized modes of representation, regular elections and political procedures.
As a political or legal system develops in this rational manner, authority takes on a legal form. Those who govern or rule either have, or appear to have, a legitimate legal right to do so. Those who are subordinate within this system accept the legality of the rulers, believing they have the legitimate right to exercise power. Those with power then exercise power based on this right of legitimacy.
From the discussion of Max Weber’s Theory of Power above we can surmise that the Courts — Judges and Justices exercise of Power is based on a socially constructed notion of Authority that is categorized as a Legal, for the decisions that are made inside the Court rooms or Hall of Justice are based on rational legal system of “constitution, written documents, established offices, regularized modes of representation, regular appointments and court procedures”. The Court is an institution represented by the Judges and Justices wo make use of their legal authority in passing of judgement be it civil or criminal judgement.
C. Sociology of Power in Courts and Judges as Power Elite
According to the power-elite theory of C. Wright Mills (1956), the power elite is composed of government, big business, and the military, which together constitute a ruling class that controls society and works for its own interests, not for the interests of the citizenry. Members of the power elite, Mills said, see each other socially and serve together on the boards of directors of corporations, charitable organizations, and other bodies.
But Mills only identified cabinet members, senators, and top generals and other military officials that retire, often becoming corporate executives. Conversely, corporate executives often become cabinet members and other key political appointees. Which as Mills noted is a circulation of the elites that helps ensure the power elite’s dominance
But in the current set-up, particularly in the Philippines judges and justices that retire are often appointed as board members in large privately held Philippine corporations, appointed in Government Owned and Controlled Corporations (GOCC), or even in Executive Office in the Government. In this sense Judges/Justices are surely part of the “power elite” that protects the interest of the powerful and those in power and ensures their continued dominance.
Conclusion
It is clear from the discussion above that our Philippine Court system — as represented by Judges and Justices has rational-legal authority as the primary source of its power based on the socially constructed “constitution, written documents, established offices, regularized modes of representation, regular appointments and court procedures” that allows it to define how the actual case or controversy will be decided upon, who would loss life, liberty, and/or property is dependent on the judge and justice appreciation of facts, circumstance, and evidence. That such authority is legitimated by people who accepts the so called “domination” based on law.
But it is also worth noting that decisions made by judges and justices are also made for the protection of the status quo of the elite where most if not all of them belongs. As power elite judges and justices have their internalized rule in protecting the interest of those in power.
REFERENCES
Books
Gifis, S. H. (1998). Dictionary of Legal terms. Barrons Educational Series.
Vago, S., & Barkan, S. E. (2017). Law and Society. Routledge.
Weber, M. (1978). Economy and Society: An Outline of Interpretive Sociology. Univ of California Press.
Journals
Garfinkel, H. (1956). Conditions of successful degradation ceremonies. American Journal of Sociology, 61, 420–424. https://doi.org/10.1086/221800
Steinberg, S. R., & Kincheloe, J. L. (2010). Power, Emancipation, and Complexity: Employing Critical Theory. Power and Education, 2(2), 140–151. https://doi.org/10.2304/power.2010.2.2.140
Websites
Bell, K. (2020). court. Open Education Sociology Dictionary. https://sociologydictionary.org/court/
The Judicial Branch | GOVPH. (n.d.). Official Gazette of the Republic of the Philippines. https://www.officialgazette.gov.ph/about/gov/judiciary/
Sociology 250 — Notes on Max Weber. (n.d.). https://uregina.ca/~gingrich/o12f99.htm
Publisher, A. R. a. R. O. O. (2016, April 8). 14.3 Theories of Power and Society. Pressbooks. https://open.lib.umn.edu/sociology/chapter/14-3-theories-of-power-and-society/
Laws / Regulations
The Judicial and Bar Council, The Revised Rules of the Judicial and Bar Council. JBC №2016–01. https://jbc.judiciary.gov.ph/jbcrules/JBC-2016-01.pdf
