Public and Private Justice: Dispute Resolution in Modern Societies (original) (raw)
Related papers
2018
In 1975, Mauro Cappelletti predicted a profound transformation in the area of civil justice. In his view, the complexity of contemporary societies required new and enhanced methods of dispute resolution since the traditional means were increasingly insufficient to address societal (and even civilizational) challenges. It is questionable, however, whether this transformation has indeed occurred. In order to evaluate Cappelletti’s prediction, the present contribution addresses a selection of changes in the area of civil justice that have occurred since Cappelletti’s prediction and tries to identify the driving forces of change. Subsequently it identifies seven main transformation areas in civil procedure, evaluating both their present impact on civil justice and their possible future effects. The relevant areas are (1) Transformation by borrowing from national and transnational sources; (2) Transformation by technological modernization; (3) Transformation by the reorganization of cour...
The Metamorphoses of Civil Justice and Civil Procedure
In 1975, Mauro Cappelletti predicted a profound transformation in the area of civil justice. In his view, the complexity of contemporary societies required new and enhanced methods of dispute resolution since the traditional means were increasingly insufficient to address societal (and even civilizational) challenges. It is questionable, however, whether this transformation has indeed occurred. In order to evaluate Cappelletti’s prediction, the present contribution addresses a selection of changes in the area of civil justice that have occurred since Cappelletti’s prediction and tries to identify the driving forces of change. Subsequently it identifies seven main transformation areas in civil procedure, evaluating both their present impact on civil justice and their possible future effects. The relevant areas are (1) Transformation by borrowing from national and transnational sources; (2) Transformation by technological modernization; (3) Transformation by the reorganization of courts and a redefinition of court functions; (4) Transformation by the establishment of a multi-dimensional procedure for civil cases; (5) Transformation by the pursuit of alternatives to litigation; (6) Transformation by the collectivization of decision-making processes; and (7) Transformation by ‘dejudicialization’ (privatization, outsourcing) of judicial tasks. The contribution serves as an introduction to the papers collected in the present volume, written by authors from a wide variety of jurisdictions in Europe and around the globe.
Private Justice: The Privatisation of Dispute Resolution and the Crisis of Law
Wolverhampton Law Journal (WLJ) ISSN 2517-8121, 2020
We are experiencing a major revolution in the way in which disputes between individuals are resolved. Almost everywhere civil justice is being privatised and court adjudication is disappearing. Private conflicts are less and less decided by judges sitting in courtrooms, through a fair trial and according to law, and are more and more resolved out-of-court with the help of decision-facilitators through settlements and agreements. Despite the unquestioned importance of this global tendency, its most theoretical dimensions have woefully attracted very little attention. How does this radical and structural change affect the way we look at, and think of, the law? How is this revolution transforming, or even disarticulating, our ideas of legality and justice? This article aims to set the background for further discussion of these issues and provide a tentative answer to these questions. It does so by critically looking at some of the rhetorical arguments deployed by ADR advocates (with a focus on the English legal system) and investigating from a theoretical viewpoint how they potentially threaten our traditional views (a) on the role legal rules are expected to play in societies and (b) on the concept of formal justice and its corollaries.
Goals of Civil Justice and Civil Procedure in the Contemporary World
Ius Gentium: Comparative Perspectives on Law and Justice, 2013
Some of the most thrilling topics of civil procedure are those that revisit its very roots. What are the goals of civil justice? This question seems to be simple only on the surface, viewed from the closed perspective of national law and jurisprudence. However, the moment when we embark on a comparative journey, the adventure starts. How do the goals of civil justice differ from country to country? Are they compatible? Is it possible at all to speak of the universal tasks of civil justice in the contemporary world? And, if not, are we making a mistake when we consider that 'judges' and 'courts' have the same meaning and same importance in all cultures? In this chapter, the author presents a synthetic study on these issues, based on the reports that present a particular approach to the goals of civil justice and civil procedure from the angle of a representative set of different contemporary legal traditions and systems.
Qualitative Sociology, 1985
If economics is called a "dismal science" because it is centrally concerned with the problem of allocating scarce resources, then the sociology of law ought to be dubbed "joyous" because of the abundance of law. Indeed, the expansion of law through the elaboration of individual rights, contractual relations, and the growth of administrative state institutions is much more than a reflection of changes associated with processes of modernization. Rather, law is a constituent feature of social change. Thus, although Malthus grossly overstated the view that population expands exponentially while food production expands arithmetically, his principles seem to hold with regard to the growth of law and social relations. Yet, beyond the common observation that the legalization of social life has dramatically expanded, scholars take differing evaluative standpoints and alternative methodological approaches to the analysis of law. While each of the books under review is concerned with different aspects of legal development and constitutes a valuable contribution to our knowledge and understanding of particular directions in legal change, a comparison of their central points of view and methodologies suggests both the varieties of legal scholarship and disagreements about policy alternatives. In Justice Without Law?, Jerold S. Auerbach, a historian at Wellesley College and the author of Unequal Jus rice, is primarily concerned with tracing the pattern of development of dispute settlement in American history. He demonstrates that there has always been a tension between relatively informal, community-based resolution in the United States and the resolution of disputes through litigation. Yet, the pattern of dispute settlement has become so dominated by the legal profession and litigation that efforts at nonlegal dispute resolution have tended either to become sources of unequal, inauthentic backwaters created for the convenience of the legal establishment or private enclaves of powerful interests that allow for minimal public scrutiny. While Auerbach is not an idolater of legality and is sharply critical
Failures of American Civil Justice in International Perspective, 2011
America's eighteenth-century founders expected of the nation's future civil justice system that everyone "ought to obtain right and justice freely, without sale, completely and without denial, promptly and without delay." They declared "that all establishments or regulations contravening these rights are oppressive and unjust." Few lawyers today would say that American civil justice fulfills the founders' expectations. Some say that it is oppressive and unjust. Many have given up the goals that the founders set. America's reformers have run out of ideas. They have no proven models for fixing what they know is broken. This book provides a comparative critical introduction to civil justice systems in the United States, Germany, and Korea. It shows shortcomings of the U.S. system and compares them with German and Korean successes in attaining the expectations of America's founders. The book shows foreign systems as a source of ideas that are already proven to promote American goals of right and just decisions, achieved by fair process, efficiently without delay, and available to all. The book informs general readers as well as specialists. For the former, it is written in a layman-friendly style. For the latter, it offers suggestions for further reading that permit checking the book's analysis.