The Common Law roots of “Amicus Curiae”

di OpenDemocracy "Judges", licenza: CC BY-SA 2.0,
di OpenDemocracy “Judges”, licenza: CC BY-SA 2.0,

The increase in and globalisation of international commercial relations and the growing complexity and interdependence of international politics has led the international community to imagine, design and implement transnational institutions tasked with providing the common governance framework which is needed in such a context. Nonetheless, it is a matter of fact that the same steady increase in the quantity and quality of international relations, along with the proliferation of appropriate transnational institutions, has not been paralleled by a similar adaptation in the forms and places of democratic supervision over those international contexts. Still, the effects of the decisions reached within these international assemblies have often great impacts over large groups and sometimes entire populations.

On the other side, the circumstance that the governments should theoretically bear the responsibility to preserve the interests of their citizens while acting inside state-driven international organisations appears not to be enough for the growing criticism over legitimacy of those fora to be appeased. To this regard, international economic governance faces the most severe side-effects deriving from the detachment and polarisation between places of democratic control and places of decision-making. In the latter, the role granted to dispute settlement systems is essential to an effective and satisfactory management of the relevant organisations and, to some extent, they can be said to constitute the inner core, the “fuse”, of these contexts. Indeed, it may be argued that an efficient system of dispute resolution represents the conditio sine qua non of a well-functioning organisation. This is the fundamental reason why these dispute resolution fora are interesting to be inquired in order to evaluate whether they may represent an appropriate door permitting the introduction of valuable and adequate forms of external public supervision.

Assuming that this line of reasoning is appropriate, the academic interest towards the so called Amicus Curiae institution is justified in as much as it may be functional to the introduction and representation within a certain judicial proceeding of points of view and information which may be valuable to the proper determination of the case, but which may nonetheless be difficult to be taken into consideration by means of the sole allegations of the parties to the dispute. What is going to be assessed is therefore if the Amicus, as a legal tool, may be valuable in contributing to the overall fairness and justice of legal proceedings inherently affecting a range of interests going beyond those of the formal disputing parties. Moreover, it appears that the potential of the Amicus Curiae has not still been fully inquired, though many scholars have expressed different and often contrasting opinions as to the value and usefulness of such a legal device.

The legal environment in which Amicus Curiae could for the first time develop as a modern legal institution and pass through the phases by which it got transformed from an archaic tool with no clear status to a recognized device which courts may commonly refer to in the administration of justice is surely English law. The evolution Amicus underwent within this legal framework testifies that this institution is far from having kept its original features throughout its passage from national courts to international tribunals and contemporary arbitration proceedings. The “English phase” of Amicus Curiae development represents the real turning point in the history of the institution and is therefore essential to the understanding of its essence and its role in current international legal culture.

The first confirmed references to Amicus Curiae can be found in English legal decisions dating back to the XIV and XV Centuries[i]. Here, this institution was deployed both by lawyers and non-lawyers who were present in the room of the trial and who advised the judge on specific matters of law, who could speak on behalf of an infant, even not being relatives, and of an undefended accused during a criminal proceeding[ii]. Furthermore, proofs are available of cases in which the Amicus institution was used in order to call attention of the court to manifest error[iii], to report the death of a party to the proceeding[iv] and to report the existence of relevant statutes[v]. Another case of great interest is represented by the event of a member of Parliament intervening in the vest of Amicus to advise the court on the correct interpretation of a legislative act which he had participated to the composition of[vi].

Amicus Curiae in English law developed, from the very beginning, as a well-recognized practice, though not as an established right.[vii] This makes perfectly sense in the context of common law: the usefulness of such a legal device was soon a point of common opinion among operators of justice, particularly judges, in as much as it allowed a “compensation” of the rigidities of a classic adversary litigation process. In particular, this was possible thanks to the inner characteristics of the institution, i.e. great flexibility and adaptability, with regard both to the content of possible interventions and to the slim procedures by which such interventions took place[viii]. Moreover, and most important, Amicus allowed the introduction and representation in a trial of third parties who were not directly involved in the dispute but who nonetheless deemed to have some collateral interests worth to be reported and, if possible, upheld[ix]. There are two major corollaries of this deep flexibility in the deployment of Amicus before English courts. Firstly, it was unanimously deemed not to be necessary to be an attorney in order to be allowed to intervene in the role of Amicus, which obviously enlarged to a great extent the subjective limits of the use of the institution itself. Secondly, even the courts showing greatest congeniality to this device always refrained from giving a clear and comprehensive definition of Amicus Curiae. This particular circumstance, far from representing a dismissive approach to the institution, testifies at the opposite a will to allow a much wide deployment of the device on the fundamental basis of judicial discretion[x], ultimately maximizing its legal potential.

The representation by means of Amicus Curiae of third parties’ interests seems to constitute the real turning point in the evolutionary process of the institution. Indeed, this peculiar utilization of the device evidently proves a shift, an enlargement in the classical boundaries of the Amicus. It progressively developed, from a figure merely devoted to widening the knowledge of the court in respect of specific relevant circumstances, to a legal tool actively deployed before the judicial body and, in some cases, against one or more parties to the trial, in order to influence the final decision in the interest, not merely and not necessarily of justice for itself, but of a specific person or group. This is precisely what an eminent author[xi] called the passage «from friendship to advocacy».

Referring to case law, Coxe v. Phillips, dating back to 1736, probably represents the most significant occasion which this shift originated from[xii]. The proceeding was about a promissory note, but, it was finally proved, it also constituted a case of collusion between the parties. Such a circumstance was proved thanks to the intervention of an Amicus who was permitted to act in representation of the interests of a third party, whose rights would have been foreclosed by the decision. Amicus, in this situation, was therefore deployed well beyond its classical function of advising the court on a specific matter of law or fact. Its utilization was on the opposite directly functional to the active advocacy of the interests of a non-party to the proceeding. On the basis of the subsequent luck of the institution beyond English borders, it is to be said that such an occasion was a clear prelude to the genetic mutation of Amicus Curiae, from a neutral legal “fiction” deployed in the main, and sometimes exclusive, interest of the judicial body, up to a powerful tool available to people advocating specific and private interests. Interests that might be either of little or even no relevance to the parties to the dispute or even openly in contrast with one or both of them, but that could finally find a way to be represented and taken into appropriate account within the proceeding on the basis of an “objective” connection with the primary matter at stake. As correctly pointed out by a distinguished scholar[xiii], Coxe v. Phillips case is particularly significant in as much as the transformation in the essential profile of the Amicus, though revolutionising that institution, was not detrimental to its classical functions. Indeed, in the case we are referring to, the new role of representing third parties’ interests did not exclude, but got merged with, the traditional one of advising the court on a relevant matter: in fact, while defending its personal status, here the Amicus also assisted the court in finding the collusive nature of the dispute at stake.

It is therefore to be recognized, in line with the common opinion of scholars on this issue[xiv], that the “modern” Amicus Curiae does deepen its roots in common law and first of all in English legal culture. Here, Amicus underwent and assimilated the decisive transformations that allowed it to be recognized as a valid legal resource not only by other national legal environments but also by international judicial bodies.



[i] Y. B. Hil. 26 Ed. III, 65 (1353); Y. B. 7 Ed. IV, 16 (1486).

[ii] See Luigi Crema, Tracking the Origins and Testing the Fairness of the Instruments of Fairness: Amici Curiae in International Litigation, Jean Monnet Working Paper No. 09/12 (2012), 10, 11.

[iii] The Protector v. Geering, 145 Eng. Rep. 394 (1656), in Samuel Krislov, The Amicus Curiae Brief: From Friendship to Advocacy 72 Yale L. J. 694 (1963), 695 fn. 4.

[iv] Falmouth v. Strode, 11 Mod. 137, 88 Eng. Rep. 949 (Q.B. 1707), in Krislov, ibidem.

[v] The Prince’s Case, 8 Coke 1, 29a, 77 Eng. Rep. 481, 516 (1606), in Krislov, ibidem.

[vi] The MP was Sir George Treby, in the case Horton & Ruesby, Comb. 33, 90 Eng. Rep. 326 (K.B. 1686), reported in Krislov, The Amicus Curiae Brief…, supra at fn. 1, 695 fn. 5.

[vii] See John Bellhouse, Anthony Lavers, The Modern Amicus Curiae: A Role in Arbitration?, 23 Civ. Just. Q. 187, 188, (2004); Frank M. Covey, Amicus Curiae: Friend of the Court, 9 DePaul L. Rev. 30 (1959-1960), 30; see also Crema, Tracking the Origins…, supra at fn. ii, 11; Krislov, The Amicus Curiae Brief…, supra at fn. iii, 695 .

[viii] See John Bellhouse, Anthony Lavers, The Modern Amicus Curiae: A Role in Arbitration?, 23 Civ. Just. Q. 187 (2004), 190; see also Micheal K. Lowman, Comment, The Litigating Amicus Curiae: When Does the Party Begin After the Friends Leave?, 41 Am. U. L. Rev. 1243 (1992), 1244; and Krislov, The Amicus Curiae Brief…, supra at fn. iii, 696, 720.

[ix] See Covey, Amicus Curiae…, supra at fn. vii, 31, 32; see also Lowman, ibidem; and Krislov, The Amicus Curiae Brief…, supra at fn. iii, 695, 696; and Dinah Shelton, The Participation of Nongovernmental Organizations in International Judicial Proceedings, 88 Am. J. Int’l L. 611 (1994), 616.

[x] See Johannes Chan, Focus on Ma Case: Amicus Curiae and Non-Party Intervention, 27 Hong Kong L. J. 391, 394 (1997); see also Krislov, The Amicus Curiae Brief…, supra at fn. iii, 695.

[xi] Krislov, The Amicus Curiae Brief…, supra at fn. iii.

[xii] «[…]in Coxe v. Phillips, a 1736 case, the action was on a promissory note. But the suit was collusive, allowing Mrs. Phillips to embarrass one Muilman, whose marriage to her had been declared null upon discovery that she had a living husband. Muilman had then proceeded to marry another woman, to the apparent irritation of Mrs. Phillips. She pleaded her marriage to Muilman, and her resulting incapacity to contract as a defense. Had this defense been sustained, Muilman’s marital status would have been impugned. Although he was not a party to the suit, Muilman was permitted to have his interests represented by an amicus curiae. The amicus proved successful, not only in having the action vacated, but also in having both Coxe and Phillips found in contempt of court.», in Krislov, The Amicus Curiae Brief…, supra at fn. 1, 696, 697; see also Lowman, The Litigating Amicus Curiae…, supra at fn. 1, 1249, 1250;  the case is also referred to in Allison Lucas, Friends of the Court? The Ethics of Amicus Brief Writing in First Amendment Litigation, 26 Fordham Urb. L. J. 1605, 1605 (1998) and in Madeleine Schachter, The Utility of Pro Bono Representation of U.S.-Based Amicus Curiae in Non-U.S. and Multi-National Courts as a Means of Advancing the Public Interest, 28 Fordham Int. L. Rev. 1, 88, 92 (2004);  as an example of how an attempt to bring a fictitious lawsuit can cause the parties to be found in contempt of court, the case is also reported in Sidney A. Diamond, Federal Jurisdiction to Decide Moot Cases, 94 U. Pa. L. Rev. 125, 125 (1946).

[xiii] Lowman, The Litigating Amicus Curiae…, supra at fn. viii, 1250.

[xiv] See Ernest Angell, The Amicus Curiae American development of English institutions, 16 Int’l & Comp. L. Q. 1017 (1967), 1017, 1018; Covey, Amicus Curiae…, supra at fn. vii, 34, 35; Crema, Tracking the Origins…, supra at fn. ii, 11; Lowman, The Litigating Amicus Curiae…, supra at fn. viii, 1250, 1291; Krislov, The Amicus Curiae Brief…, supra at fn. iii, 697; Allison Lucas, Friends of the Court? The Ethics of Amicus Brief Writing in First Amendment Litigation, 26 Ford. Urb. L. J. 1605 (1998), 1607, 1608.