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A Comparative and Political Analysis
By Martin Shapiro
The University of Chicago PressCopyright © 1981 The University of Chicago
All rights reserved.
THE PROTOTYPE OF COURTS
Students of courts have generally employed an ideal type, or really a prototype, of courts involving (1) an independent judge applying (2) preexisting legal norms after (3) adversary proceedings in order to achieve (4) a dichotomous decision in which one of the parties was assigned the legal right and the other found wrong. The growth of political jurisprudence has been characterized largely by the discovery and emphasis of deviations from the prototype found in the behavior of particular courts, showing how uncourtlike courts are or how much they are like other political actors. While some political scientists and many lawyers have continued to protest against this approach, they have done so largely by reasserting the prototype. Such a tactic is unconvincing because, if we examine what we generally call courts across the full range of contemporary and historical societies, the prototype fits almost none of them. Defense of the prototype thus seems fruitless. A study of courts that is essentially the measurement of deviance from a type that is rarely approximated in the real world would appear to be equally fruitless.
The Logic of the Triad in Conflict Resolution
Perhaps it would be wise to begin over, employing a root concept of "courtness" but more freely accepting the vast variety of actual social institutions and behaviors loosely related to that concept without worrying about where "true courtness" ends and something else begins. For in reality there are few if any societies in which courts are so clearly delineated as to create absolute boundaries between them and other aspects of the political system.
The root concept employed here is a simple one of conflict structured in triads. Cutting quite across cultural lines, it appears that whenever two persons come into a conflict that they cannot themselves solve, one solution appealing to common sense is to call upon a third for assistance in achieving a resolution. So universal across both time and space is this simple social invention of triads that we can discover almost no society that fails to employ it. And from its overwhelming appeal to common sense stems the basic political legitimacy of courts everywhere. In short, the triad for purposes of conflict resolution is the basic social logic of courts, a logic so compelling that courts have become a universal political phenomenon.
The triad, however, involves a basic instability, paradox, or dialectic that accounts for a large proportion of the scholarly quarrels over the nature of courts and the political difficulties that courts encounter in the real world. At the moment the two disputants find their third, the social logic of the court device is preeminent. A moment later, when the third decides in favor of one of the two disputants, a shift occurs from the triad to a structure that is perceived by the loser as two against one. To the loser there is no social logic in two against one. There is only the brute fact of being outnumbered. A substantial portion of the total behavior of courts in all societies can be analyzed in terms of attempts to prevent the triad from breaking down into two against one.
The most fundamental device for maintaining the triad is consent. Early Roman law procedures provide a convenient example. The two parties at issue first met to decide under what norm their dispute would be settled. Unless they could agree on a norm, the dispute could not go forward in juridical channels. Having agreed on the norm, they next had to agree on a judge, a third person who would find the facts and apply the previously agreed upon norm to settle their dispute. The eventual loser was placed in the position of having chosen both the law and the judge and thus of having consented to the judgment rather than having had it imposed on him.
The almost universal reluctance of courts to proceed in the absence of one of the two parties is less a testimony to the appeal of adversary processes than it is a remnant of this emphasis on consent, of both parties themselves choosing the triad as the appropriate device for conflict resolution. In early stages of English law, courts were frequently thwarted by the absence of one of the parties, and medieval procedure is full of elaborate devices for enticing or compelling the unwilling party into court rather than proceeding without him. Modern British and American practice still prefers extended delay to the absence of one of the parties, and in many tribal societies the anthropologist encounters the same reluctance to proceed without all three members of the triad and comparable devices to cajole or coerce attendance.
All of this can, of course, be put in the form of the classic political question: Why should I obey? The loser is told that he should obey the third man because he has consented in advance to obey. He has chosen the norm of decision. He has chosen the decider. He has thus chosen to obey the decision.
THE MEDIATING CONTINUUM
Nearly every triadic conflict resolver adds another device to consent in order to avoid the breakdown into two against one. This device is the avoidance of the dichotomous, imposed solution. In examining triadic conflict resolution as a universal phenomenon, we discover that the judge of European or Anglo-American courts, determining that the legal right lies with one and against the other of the parties, is not an appropriate central type against which deviance can be conveniently measured. Instead he lies at one end of a continuum. The continuum runs: go-between, mediator, arbitrator, judge. And placement on the continuum is determined by the intersection of the devices of consent and nondichotomous, or mediate, solution.
The go-between is encountered in many forms. In tribal or village societies he may be any person, fortuitously present and not connected with either of the households, villages, or clans in a dispute, who shuttles back and forth between them as a vehicle of negotiation. He provides communication without the dangerous physical contact between the disputants that would otherwise be required. In more modern guise we find him as the sovereign offering "good offices" in an international dispute or the real estate broker shuttling between seller and prospective buyer and carefully keeping them apart at the negotiation stage. The go-between seems to operate in a pure consent, pure mediate-solution situation. He cannot function at all unless both parties consent to his offices and the solution reached is the product of free negotiation between the parties and is mutually satisfactory. And in theory, all resolutions offered and accepted are purely those of the parties themselves.
In reality, however, the go-between is not a mindless communicator. He exerts influence by "rephrasing" the messages he delivers. He may manage to slip in a fair number of proposals of his own. And by his characterization of the flexibility or inflexibility of each side to the other, he may strengthen or weaken the bargaining position of one or the other.
The mediator is somewhat more open in his participation in the triad. He can operate only with the consent of both parties. He may not impose solutions. But he is employed both as a buffer between the parties and as an inventor of mediate solutions. By dealing with successive proposals and counterproposals, he may actively and openly assist in constructing a solution meeting the interests of both parties.
The distinction between mediation and arbitration in any particular society is a matter of legal nuance and often the subject of bitter controversy, particularly in such areas as labor arbitration. Often too the distinction is made between voluntary and binding arbitration. For our purposes we may treat arbitration generically and speak of it as involving less consent by the parties and less mediate solutions than mediation. Persons are not normally compelled to consent to arbitration. In this sense the arbitrator, like the mediator and the go-between, cannot function without the consent of both parties. In modern societies, however, arbitration clauses frequently appear in contracts so that the consent is somewhat attenuated. It is not consent of the moment to the arbitration of the moment but advance consent to future arbitration in general. Yet even such contracts almost invariably specify that the two parties must in each instance agree on who the arbitrator shall be.
The key distinction between the mediator and arbitrator, however, is that the arbitrator is expected to fashion his own resolution to the conflict rather than simply assisting the parties in shaping one of their own. And his solutions are not purely mediated in a number of senses. First, arbitrators, unlike mediators and go-betweens, usually work with a relatively fixed set of legal norms, analogous to that of the early Roman judge. The parties have consented to, or themselves constructed in advance, the norms to which they will now be subject. If in a given dispute one party has violated these norms more than the other, it is not expected that the arbitrator arrive at a compromise solution purely on the basis of the interests of the parties and quite apart from their obedience to the preexisting norms. Moreover, arbitration is frequently "binding" either by statute or under the terms of the contract. The arbitrator has the legal authority to impose his solution on both parties even if one or both do not voluntarily consent to the solution."
Nevertheless, societies tend to turn to arbitration in situations in which, although overarching legal norms may exist, the most salient concerns are the interests of the two parties, neither of which is assigned greater legitimacy than the other. Mediate solutions acceptable to both parties are the goal, and, as a practical matter, few arbitrators would find much employment if they did not develop a record of providing such solutions. Of course this is all the more true in "nonbinding" arbitration, in which the parties need not accept the arbitrator's resolution. In American labor law, for instance, a distinction is often made between "rights" arbitration and "interest" arbitration. In most labor-management contracts there are some provisions that set out with a relatively high degree of specificity the rights and duties of the two parties in relation to one another. When a dispute under one of these provisions is submitted to arbitration, both parties expect the arbitrator to decide who was legally right rather than provide a mediate solution. The same union and company may submit other kinds of disputes not covered by such precise contract terms to the same arbitrator and expect mediate solutions.
When arbitration is in no sense binding, it merges with mediation. When arbitration is binding, both in the sense that the two parties must go to arbitration on the demand of either and must then abide by the arbitrator's holdings, it tends to merge into judicial judgment. This is particularly true in instances such as "rights arbitration," when the arbitrator is expected to reach a legally correct rather than a mediate solution even though the "law" is that created by a mutually agreed contract between the parties. When arbitration is binding and dichotomous solutions are expected, then the "arbitrator" in fact becomes a kind of private judge, that is one who judges rather than mediates but does not hold the governmental office of judge. The very fact that he does not hold such an office but is chosen by the parties, rather than imposed on them, preserves a greater element of consent that continues to distinguish him from the official judge.
Recently one of the favored tactics for relieving delay in the civil courts has been the adoption of systems of compulsory arbitration in which suits involving relatively small amounts of money are assigned to "arbitrators" rather than tried before a judge. Such a system is not really one of arbitration but one of cheap judging. The arbitrator is expected to arrive at the same decision under the same law as would a judge. The parties usually do not choose the arbitrator. He uses simpler procedures and carries a lower overhead of courtroom costs than a judge and thus handles more cases at smaller cost. Such systems thus allow the appointment of a great many temporary judges by avoiding constitutional, statutory, and budgetary limitations on formal judicial appointments.
THE SUBSTITUTION OF LAW AND OFFICE FOR CONSENT
In turning now to judges, we return to the problem of consent and to our Roman example. As societies become more complex, they tend to substitute law for the particular consent of the parties to a particular norm for their particular dispute. They also substitute office for their free choice of a particular third man to aid in the resolution of their dispute. The earliest Romans might seek the aid of anyone in formulating a norm. They came more and more to turn to city officials for this assistance. The Praetorian Edict, which was the closest thing to a civil code that Rome as a city attained, long took the form of a series of norms that such an official announced he would supply to contending parties at their request. It was initially not a body of preexisting law but a catalogue of "ready-made" goods that replaced the still earlier practice of "tailoring" norms for each pair of disputants. As the practice grew under which each of the new praetors reenacted the edict of his predecessors, we can literally see what begins as a system of free legal advice to mutually consenting parties becoming a set of preexisting compulsory legal rules. A parallel development can be seen in the writings of the jurisconsults, which begin as professional legal advice to the praetors and litigants and end as operative parts of the Code of Justinian.
The key factor in the shift from consent to law is specificity. Ethnographic and sociological materials make clear that in only a very limited number of special situations do litigants literally make their own rule of decision free of all preexisting norms. At the very minimum there is a social sense of appropriateness or natural justice, of how we always do things or what we never do, of the sort suggested by the Tiv informant who says of what we would call a lawbreaker that he "spoils the tjar." We may express this consensus in terms of custom or fundamental principles of ordered liberty or, as the Tiv does, as a psychic harmony of men and nature. It creates the constraints under which prospective litigants shape a norm for themselves. Indeed, much of judicial ritual, particularly in the holding of public trials, consists of reminding the litigants that as good men they must consent to the overarching norms of their society. Yet the more nebulous these norms, the greater the element of immediate and real consent in achieving a precise working rule for a particular case. At one extreme we find two disputing villagers working with an elder to settle the ownership of a pig according to the ways of the ancestors. If any rule of decision is actually formulated, it is likely to arise out of the adeptness of the elder in eliciting the face-to-face consent of the parties. At the other extreme we find litigants in a modern industrial state who discover at trial that their earlier behavior was governed by a detailed preexisting rule, even the existence of which was unknown to them at the time and which they consent to only in the generalized, abstract sense that all citizens agree to live under the laws of the state. The judge, then, unlike the mediator, imposes "his" rule on the parties rather than eliciting a consensual one.
Moreover, the parties may not specifically consent even to who shall impose his rule or decide under it. The most purely consensual situation is one in which the disputants choose who shall assist them in formulating a rule and who shall decide the case under it, as the Romans initially did. In most societies, however, there seem to be instances in which it pays to choose a big man to do these tasks, whether a government official like the urban praetor or, as among the Papuans, the owner of many pigs. The disputants may turn to the big man because he knows more of the law and custom, because he has the economic, political, or social power to enforce his judgment, or because his success or high position is taken as a symptom of his skill and intelligence at resolving disputes. Beyond and perhaps out of this tendency to consent to judging by big men, many societies develop the office of judge so that the parties do not choose their judge. If they choose to go to court at all, they must accept the official judge. The ultimate step, of course, is in those instances in which a legal system not only imposes the law and the officer of the law but also compels one or both parties to resort to legal processes, as in a criminal trial or civil suit. The judge, then, unlike the mediator, imposes himself on the parties rather than being chosen by them.
Excerpted from Courts by Martin Shapiro. Copyright © 1981 The University of Chicago. Excerpted by permission of The University of Chicago Press.
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