legal-history
Where does the idea of entitlement to make submissions to a court originate?
<p>The court originally derived its authority solely from the supreme sovereignty of the crown. But if the royal power is so supreme, then why are subjects allowed as a matter of apparently solemn entitlement, to make such detailed submissions as to how this power should be exercised?</p>
<p>Doesn’t the idea of supreme power come with it a degree of propriety, and often even a degree of pride in the to dispense such power as capriciously or arbitrarily as one likes?</p>
<p>Doesn’t the idea of lengthy detailed and formal submissions such as to a court in themselves, let alone in the current system wherein the court is apparently all but required to review and consider all of them in great rigour and detail, other than from privileged trusted advisors, imply a level of condescension toward the authority, effectively the total opposite of propriety, reverence and discretion?</p>
<p>So what is the historical basis for this idea that all parties are entitled not only to make, but also to have rather quite vigorously considered, all of their submissions, which effectively amount to telling the court, and so by extension the king or queen, how they should be doing their job?</p>
<p>What place is it for a lowly subject to tell a king how best to exercise his power when they are not even in the King’s cabinet or privy council etc?</p>
<p>Even this this question is framed rather in terms of the English/commonwealth/common law framework, perspectives on the current state and historical development of other legal systems are also most welcome.</p>

<p>This is just an instantiation of the ancient legal principle <em><a href="https://en.m.wikipedia.org/wiki/Audi_alteram_partem" rel="nofollow noreferrer">audi alteram partem</a></em> (hear the other side).</p>
<p>James Tully says (in &quot;<a href="https://www.erudit.org/fr/revues/mlj/2020-v65-n3-mlj05864/1075601ar/" rel="nofollow noreferrer">Sustainable Democratic Constitutionalism and Climate Crisis</a>&quot; (2020) 5:3 McGill LJ 545):</p>
<blockquote>
<p>Aeschylus introduced this legal norm in <em><a href="https://en.m.wikisource.org/wiki/The_House_of_Atreus/The_Furies" rel="nofollow noreferrer">Eumenides</a></em>, the third play in the <em>Oresteia</em> trilogy. The Roman lawyer Cicero brought it to prominence in Roman law and the Western tradition.</p>
</blockquote>

<p>After the collapse of the Roman Empire, Europe and the Western Roman Empire collapsed into the &quot;dark ages&quot; in which large scale government and civilized legal institutions collapsed, in favor of feudalism in which fragmented warlords ruled serfs absolutely, with lords sometimes subject to greater lords who ruled them, and society spent a thousand years trying to reconsolidate large kingdoms and to reconstruct civilization.</p>
<p>In the feudal era, one of the customary incidents of the relationship between a lord and a lord's subjects is that the lord reserved the authority to met out justice between the lord's subjects and to resolve disputes between them.</p>
<p>People sought to petition the lord to do justice for the simple reason that no one else was in a position to do so. The lord was the sole authority available to them, because the lord, like all governments, established a monopoly on the use of force to achieve one's ends.</p>
<p>A petition to the lord was not really an entitlement, as the lord could refuse to hear someone's pleas. But, lords who heard the pleas of their subjects and resolved them justly found that their domains became more prosperous and their personal reputations were enhanced by doing so. The church, which was the sole force independent of secular lords in the feudal era, likewise encouraged lords to act in this way and praised them for doing so.</p>
<p>Conversely, lords who refused to listen to their subject's pleas for justice, or ruled unjustly, found that their domains didn't prosper and that potential usurpers of their positions found many allies.</p>
<p>As lords tired of this work, they delegated responsibility for dealing with petitions seeking justice to a learned member of their court presaging the role of a modern judge, whose decisions could be reviewed by the appointing lord, but usually weren't because the learned judges made good decisions most of the time and second guessing their decisions would defeat the purpose of delegating this burden.</p>
<p>Once pleas for justice between subjects were delegated by lords to professionals, the process formalized and bureaucratized.</p>
<p>Around the time of the late Middle Ages, in continental Europe, a process known as the &quot;reception&quot; of Roman law began, in which lords and the judges they appointed to make decisions for them began to try to follow the repository of Roman legal authority to guide their own decisions on the general assumption that it was legitimate to do so and that Roman law reflected principles of natural justice and good governance.</p>
<p>As the process became delegated to professionals and formalized and fused to the rule of law over time, the notion of rule of law and a right to petition began to come to be seen as fundamental rights in a just society and open deviation from these ideals came to undermine the authorities of the lords as well, to the point where aristocrats who deviated from these norms were seen as autocrats and despots who were bad actors. This, in turn, eventually led to movements seeking democratic input (often in exchange for voluntary assent to taxation) in a constitutional monarchy sense, and then to revolutions to displace the monarchy with a republic that dispensed with the monarch all together.</p>
