February 11, 2014

Lawyering Au Natural

For most people it's hard to separate what lawyers do from where they do it - courtrooms.  Whether it's a trial court, with a jury box filled with a dozen regular folks who are going to decide someone's fate, or an appellate court where a panel of judges glower down from the bench at the lawyers making the argument, we've got a pretty good idea of where this kind of takes place.

It was not always such.  Over at the Legal History Blog, professor Bernard Hibbitts is blogging a bit about his teaching of the history of lawyers and lawyering to his students.  I found this entry particularly interesting, because it's about the ancient roots of the law in Greece and Rome.  As originally conceived, lawyering (such as it was at the time) was done in the outdoors, not just because they hadn't figure out a better place for it yet:
By definition, outdoor advocates performed in public. They argued their cases under the unobstructed gaze of their community's gods, and they shared the very physical and acoustic spaces where other members of the community interacted to buy and sell, borrow and beg, meet and greet. Even within the confines of the court or the corona (the ring of onlookers surrounding the Roman judge), litigants and their legal representatives inevitably heard the calls and cries of commerce from the market area beyond. People in the marketplace could in turn hear (and in the Roman Forum see) litigants and/or lawyers pleading, creating mutual awareness and to some extent social accountability. There was no silence in these courts.
What's the one thing you think of when you think of modern court proceedings?  It's the quiet.  Nobody says or does anything unless it's part of the proceeding.  You don't jabber to your neighbor in the gallery, you don't talk on your cell phone.  Unless you're the judge, a witness, or a lawyer, you pretty much better keep your mouth shut, under pain of a contempt charge.  Quite a contrast.

So when did things move inside?  Blame the Romans.  More specifically, blame Julius Ceasar, who built a building just for the purpose of housing courts (modestly named after himself, of course):
Bringing lawyering inside, however, was arguably less an act of architecture as a product of politics. . . . Although the gods may have continued to look down on court proceedings from monuments in the Forum and perhaps even statues on the Basilica Julia itself, their gaze upon Roman justice was now by definition occluded. And who had occluded the sight of the gods? Roman leaders and emperors who now literally sought to confine, possess and discipline the ritual of public justice and the voices and processes of Roman advocacy (at the same time, by the way, as they increasingly claimed to be gods themselves, beginning with Divus Julius, the very builder of the Basilica). In the comparatively cramped space of the Basilica Julia there was literally less room for eloquence, less expanse in which to gather a crowd, less opportunity for advocates to potentially lever their public presence, their bodies and their commanding voices against power. After the death of Cicero, the Basilica Julia helped Rome's dictators ensure that no advocate like him would rise again.
Successive emperors built their own courts and thus, what Hibbitts calls "lawyering's most fundamental change of venue" was on.

Personally, I don't mind the move indoors - it was in the 20s when I was in Richmond last month, after all!  But I see Hibbitts's point.  Putting aside nonsense about gods, when you move justice inside you do hide it from public view, somewhat.  Sure, courts are generally open to anyone who wants to come and watch, but my experience is that, beyond students brought in specifically to observe, the public doesn't take advantage.

Part of that, no doubt, is because people are just too busy and, honestly, the day-to-day happenings in court are pretty boring.  But part of it might be also that going to court is like going to church - it's a sacred place with strict rules of behavior and uncomfortable seating, but with the added bonus of security theater to deal with.  Might more people take interest if they could just walk by and drop in on a case?  Chances are we won't ever know.

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