Alternative to What?

Theories of Litigation, Procedure and Dispute Settlement in

Anglo-American Jurisprudence: Some Neglected Classics

William Twining

The Modern Law Review, Vol. 56, No. 3, Dispute Resolution. Civil Justice and Its Alternatives.
(May, 1993), pp. 380-392.

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The Modern Laws Review [Vol. 56

Alternative to What? Theories of Litigation, Procedure

and Dispute Settlement in Anglo-American
Jurisprudence: Some Neglected Classics
William Twining *
Concern with different institutions and methods of dispute settlement has a long
history. But the rapid growth in lawyers' interest in 'alternative dispute resolution'
(ADR) is widely perceived to have gathered momentum in the late 1960s in the
United States.' In the past twenty years there has indeed been a remarkable growth
in the 'ADR industry,' exemplified by the development of organisations, courses
within law schools, continuing legal education and an extensive literature. The main
stimuli appear to have been largely pragmatic and political rather than theoretical
or 'scientific.' Three particular concerns seem to have predominated: a feeling on
the part of the American legal establishment that the court system was becoming
intolerably overloaded by an increased volume of civil claims and criminal
prosecutions; a felt need, on the part of professionals and others, for specialised
private fora to serve particular interests (eg commercial arbitration); and a view
that over and above the concomitant increase in congestion, delay and expense,
the system was incapable in more fundamental ways of living up to the ideals of
'access to justice' for all.
When a 'movement' relating to law develops in the United States, one outcome
is almost invariably a massive, confusing and largely unsystematic body of literature
of variable quality.? The ADR movement is no exception. In so far as any general
patterns can be discussed from the American ADR literature, perhaps three main
strands can be differentiated: first, a body of writing that is concerned with institu-
tional design, in which the central questions relate to the appropriateness of different
methods of dispute resolution to various types of 'dispute.' The pioneering work
of Lon Fuller in the latter phases of his career is a prominent example."econd,
there has been a series of essentially political debates about the desirability and
necessity of encouraging and developing ADR on a large scale. The diagnosis,
prescriptions and the motives of the enthusiasts were challenged by sceptics of varying
political persuasions: for example, radical critics such as Jerold Auerbach and kchard
Abel, while doubting that 'justice' was routinely achieved in litigation, argued that
the alternatives prescribed by advocates of ADR were no more likely to enhance
either access to or delivery of justice in practice and that the net effect of the movement

*Faculty of Laws, University College London.

This paper was presented to an Anglo-Soviet Colloquium in Moscow in June 1990 and is published here

without revision or adaptation. Some of the ideas are developed at greater length in W. Twining, Rethinking

Evidence (Oxford: Blackwell, 1990) (hereafter RE), esp chs 3, 5 and 11.

I eg S. Goldberg, E . Green and F. Sander (eds), Dispute Resolution (Boston: Little Brown, 1985) ch 1 .
Discussions of ADR in the common law world have hitherto tended to be overshadowed by the American
debates.
2 cf the American Realist and Law and Literature 'Movements.'
3 L.L. Fuller, 'Mediation - Its Forms and Functions' (1971) 44 S California L Rev 305; 'The Forms
and Limits of Adjudication' (1979) 92 H a w L Rev 353.

E2 The Modern Law Rev~ewL ~ m ~ t e1993

d (MLR 56.3, May) Publ~shedby Blackwell
Publ~shers. 108 Cowley Road. Oxford OX4 1JF and 238 M a ~ nStreet. Cambridge.
380 MA 02142. USA
May 19931 Theories of Litigation, Procedure and Dispute Settlement

would be to discourage the disadvantaged from trying to assert their legal right^.^
From a rather different perspective, Owen Fiss argued forcefully 'against settlement'
not only on the grounds that negotiation and mediation tend to favour the powerful,
but also because the development of alternatives would undermine the creative role
of the courts in developing public policy and inventing new solutions - an optimistic
(and perhaps prototypically American) conception of the political role and importance
of courts.5
A third strand of literature is specifically e d ~ c a t i o n a lWhile
.~ some of the most
prominent educational works deal with broad issues of institutional design and its
political implications, the main thrust is to prepare lawyers for participation in these
alternative modes by developing 'skills' in respect of such matters as counselling,
interviewing, negotiation, mediation and non-curial advocacy.
The vast bulk of these three bodies of literature is atheoretical. By and large it
represents a series of pragmatic and ad hoc reactions to some specific perceived
problems in the American legal system at a particular period in history. There are
two main exceptions to this broad generalisation: first, quite extensive reference
is made to the specialised and generally excellent literature of legal anthropology
exemplified by such writers as Malinowski, Llewellyn and Hoebel, Gluckrnan,
Gulliver and Nader.' Second, a substantial body of detailed empirical research has
been done on criminal process, civil litigation and some alternative p r o c e s s e ~ . ~
Most of this research has been informed by contemporary social science methodology
and fits within the kind of theoretical framework that is associated with 'the process
school' in American jurisprudence - that is to say, a perspective that views litigation
and other legal processes as a largely linear and discrete series of decisions and
events involving a variety of participants, arenas, procedures, discourses and
outcomes .9
This characterisation of a vast and complex body of American literature is, of
course, a great simplifi~ation.'~ However, in so far as it is broadly correct it
suggests that this heritage has two characteristics that need to be borne in mind by
outsiders. First, it focuses on concerns, institutions and phenomena that are
specifically American, despite the de-parochialising influence of anthropology.
Second, it is largely divorced from what is widely perceived to be 'mainstream'
Anglo-Americanjurisprudence as exemplified, on the one hand, by English positivists
in the tradition of Bentham, Austin, Hart and Raz, and by their, largely American,
critics such as Rawls and Dworkin. The two main exceptions to this are, perhaps,
Lon Fuller and Karl Llewellyn. However, there is, or at least there is generally
thought to be, a disjuncture between these two jurists' 'sociological' writings about

4 R. Abel, The Politics of Informal Justice (New York: Academic Press, 1982); J. Auerbach, Justice
Without Law? (New York: Oxford UP, 1983).
5 Extracts from these debates are collected in L.L. Riskin and J.E. Westbrook, Dispute Resolution and
Lawyers (St Paul, Minn: West, 1987) ch 1; and Goldberg, Green and Sander, op cit pp 485-503.
6 eg op cit n 5; and N. Gold, K. Mackie and W. Twining (eds), Learning Lawyers' Skills (London:
Butterworths, 1989).
7 A useful survey of the literature is F. Snyder, 'Anthropology, Dispute Processes and Law: A Critical
Introduction' (1981) 8 Brit J Law & Society 141. See also S. Roberts, Order and Dispute
(Harmondsworth: Penguin, 1979).
8 eg the work of Felstiner, Galanter, Miller and Sarat, and the Wisconsin Dispute Processing Program
(1979-).
9 See below, n 37.
10 The ADR movement has been treated here as a largely American phenomenon. The ideas generated
have been picked up and developed in common law countries, especially the United Kingdom, Australia
and Canada. Of course, most of what is now subsumed under ADR antedates the ADR movement.

O The Modern Law Review Limited 1993 381

7he Modern Law Review [Vol. 56

dispute settlement and their most memorable contributions to mainstream

Jurisprudence. Only a tenuous connection is perceived between Fuller's writings
on mediation and adjudication and his attacks on positivism; similarly, Llewellyn's
reputation as the spokesman and interpreter of Legal Realism, the architect of the
Uniform Commercial Code and the author of fie Common Law Tradition is generally
treated as separate from R e Cheyenne Way and his 'law jobs theory. ' I have argued
elsewhere that Llewellyn's thought has a greater unity than this interpretation
suggests. The same could probably be said of Fuller.
In so far as there is a perceived disjuncture between the literature on ADR and
mainstream Anglo-American jurisprudence, this is puzzling because one of the most
persistent concerns of our legal theorists has been about the nature of adjudication.
Twentieth-century Anglo-American jurisprudence has been extraordinarily court-
centred, with many of the main debates focusing on the role of judges and reasoning
about questions of law in hard cases." If alternative dispute resolution is mainly
concerned with alternatives to civil adjudication, it seems strange that mainstream
theories of adjudication do not feature prominently in discussions of ADR.
Two related factors may help to explain this disjuncture, at least in part. First,
Anglo-American legal scholarship and legal education have tended to focus on
analysis, exposition and argumentation about legal doctrine. In respect of this, the
most visible and interesting issues tend to surface in atypical arenas, notably appellate
courts. This sometimes obscures the obvious point that in only a tiny percentage
of litigated cases is an adjudicative decision required; only a small percentage of
adjudicative decisions involves disputed questions of law rather than of fact or
disposition; and the percentage of cases that are appealed is strikingly small. The
vast majority of civil cases is settled or abandoned before trial; and an even greater
percentage of criminal cases involves a guilty plea which precludes an adjudicative
decision on either the facts or the law.12Accordingly, in so far as a great deal of
Anglo-American jurisprudence focuses on the roles and reasonings of appellate judges
on questions of law, and treats such judges as the centre-point not only of litigation,
but of law in general, it treats statistically insignificant and atypical decisions as
central. The phrase 'alternative dispute resolution' is revealing. The word 'alternative'
implies exceptional or secondary or even deviant in contrast with something that
is normal or standard or ordinary. But alternative to what? To litigation? Hardly
- for some of the standard alternatives such as negotiation, compromise and

mediation regularly feature as phases within litigation. To adjudication? If so, it

is not just our theorists who are obsessed with the atypical; rather, court-centred
thinlung and discourse are deeply ingrained in our legal culture.
For closely related reasons, those enclaves of legal theory which have focused
more directly on non-curial legal activities and phenomena - sociology of law,
legal anthropology and its precursor historical jurisprudence - have generally been
marginalised in our legal culture. Thus, the main parts of our theoretical heritage
that are seen as relevant to dispute settlement are largely outside the mainstream
of jurisprudence. However, there are some exceptions and in this paper I shall draw
attention to some works that help to bridge the gap between marginalised sociological
theory and orthodox legal scholarship.

11 The most prominent contemporary example is Ronald Dworkin and his critics.
12 Some statistics on settlement out of court, guilty pleas and appeals in England and Wales are usefully
collected in Michael Zander, Cases and Materials on the English Lpgal System (London: Weidenfeld
& Nicolson, 5th ed, 1988).

3 82 T h e Llodern L A N R e ~ i e uI ~ n i i t e d1993
May 19931 Theories of Litigation, Procedure and Dispute Settlement

Bentham's Theory of Judicial Organisation and Adjective Law

Jeremy Bentham (1748-1832) is, of course, England's most famous jurist. More
written about than read, the general outlines of his thought are well known: a
particular version of utilitarianism that is the foundation and driving force of all
his thought; his 'theory of fictions' which contains both his general epistemology
and his main methods of analysis; his account 'of laws in general' which provides
the framework for his jurisprudence; his grand design for a 'pannomion', a complete
body of codified law, including a Constitutional Code, a Penal Code and a Civil
Code; his theory of punishment and rewards, and so on. Less well known, but among
the most extensive of his writings, are his theories of procedure and evidence
(adjective law) and of judicial organisation, which deal with what he saw as a crucial
part of his grand design, the implementation of the whole system of laws founded
on utility. l 3
Despite its extent, this aspect of Bentham's work can be surnrnarised quite
succinctly. The object of adjudication is the implementation and application of positive
law made by the legislator to promote utility. The direct end of adjective laws is
rectitude of decision, that is, the correct application of substantive law to true facts.
The collateral or subordinate end is avoidance of vexation, expense and delay.
Conflicts between the direct and the subordinate ends are to be determined on the
basis of utility. The system of procedure best calculated to further these ends is
'the Natural System' as contrasted with the 'Technical System.' The former is
characterised by an almost complete absence of artificial (ie man-made) and technical
devices, including formal binding rules of evidence and procedure. Rectitude of
decision is to be secured by making provision for the forthcomingness of witnesses
and the completeness and accuracy of testimony, backed by sanctions; by placing
responsibility for each decision on the shoulders of a single judge who is adequately
remunerated; the main securities against misdecision are simplicity and, above all,
publicity. Questions of fact and the weighing of evidence should be governed by
ordinary principles of common sense reasoning. The legislator should provide
guidance to judges in the form of 'instructions' addressed to the understanding rather
than by general binding rules addressed to the will.I4 The court system should be
organised to provide cheap, simple, accessible, local, public justice.I5

13 For details see W . Twining, - Theories o f Evidence: Bentham and Wigmore (London: Weidenfeld &
Nicolson, 1985) ch 2 .
14 See generally Theories of Evidence, cited in n 13. There is currently a debate among Bentham scholars
as to whether Bentham thought that the judge should also treat all substantive law (including the codes)
as being subject to the overriding principle of utility in the particular circumstances of each case -
in short, whether Bentham had a direct o r act-utilitarian theory of adjudication. The main proponent
of this view is Gerald Postema, Bentham and the Common Law Tradition (Oxford: Oxford UP, 1986);
three different interpretations have been advanced by J. Dinwiddy (Review of Postema) (1989) 1 Utilitas
283; P. Kelly (Review of i d ) (1989) History of Political nought 366; and W. Twining, 'Reading
Bentham' (1989) LXXV Proc Brit Academy 97, at n 31.
15 Bentham's list of the evils of procedure as he perceived them to be, in the England of his day, is
interesting in this context:
In the penal branch,
1. Impunity of delinquents.
2. Undue punishments, viz punishment of non-delinquents, or punishment of delinquents otherwise
than due.
In the non-penal branch,
3. Frustration of well-grounded claims.
4. Allowance of ill-grounded claims.

The Modern Lau Revleu L ~ r n ~ t e1993

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7he Modern Law Review [Vol. 56

A great deal of Bentham's energy was directed to attacking the complexities and
expense of procedure and the confusing technical rules of evidence, which were,
he believed, sustained mainly by the sinister interests of lawyers and of judges (who
also depended for their income on fees). In the two centuries since he wrote, almost
all changes in procedure, evidence and judicial organisation have represented moves
in the general direction that Bentham advocated, without going as far as he proposed
and in a piecemeal and slow manner that he would have deplored. Similarly, the
underlying basic assumptions about what is involved in rational adjudication and
in proving facts have been almost universally adopted by specialist writers on the
law of evidence. This is in spite of the fact that many of them have defended some
of the technical rules that he attacked and even though this ideal type of 'The
Rationalist Tradition of Evidence Scholarship' sits less comfortably with adversarial
than with inquisitorial modes of procedure.I6 Bentham favoured a system of pro-
cedure that cut across the standard distinctions between 'inquisitorial' and 'adversarial'
systems: many of his ideas fit the former model better (eg active questioning by
the judge), but he also favoured confrontation of parties and witnesses face-to-face
in oral proceedings and considered that cross-examination was the redeeming feature
of the English tradition.':
One reason for Bentham's continuing significance is that he tended to take clear,
unequivocal, often extreme positions on fundamental issues. His models of rational
adjudication and of the Natural System of Procedure provide useful and rich 'ideal
types' for contrasting 'alternative' methods of dispute resolution to adjudication.
His attitude to compromise and conciliation are especially suggestive in this context.
He studied the Danish Courts of Reconciliation and similar experiments in France,
and viewed them with some ambivalence. He recognised some value in the concilia-
tive function, especially in cases in which each side complained of a series of supposed
wrongs.I8 But this was rigidly limited by the importance he attached to full
implementation of substantive laws, deemed to be consistent with utility. He assumed
that reconciliation is best achieved by adjudication in conformity to law: 'The
increased facility of extinguishing ill-will, and at the same time rendering complete
justice, is among the advantages possessed by the natural system of procedure in
comparison to the system of technical procedure.'Iy
Bentham considered that the use of the pardon in criminal cases was only justified
in exceptional circumstances and it is almost certain that he would have opposed
institutionalised plea-bargaining. He was even more uncompromising about com-
promise. In Scotch Reform he wrote: 'Another mode of termination is by what is
called compromise : which, being interpreted, is denial of justice.'20 This follows
from the high value he placed on implementation of law and vindication of rights
(expletive justice - ie justice under the law). Compromise, even in situations of
equality of bargaining power when parties freely consent, involves the sacrifice of
rights and hence a cost, which is only ever justified as the lesser of two evils. He

5. Expense.
6 . Vexation.
7. Delay.
8. Precipitation.
9. Complication. (ii Works 19, Bowring edition)

16 Theories o f Evidence ch 2 ; RE ch 3.

17 id.

18 For details see Tneories of Evidence 94-95, 213, ns 40 and 41.

19 J . Bentham, Principles of Judicial Procedure, ii Works 47 (Bowring edition) (Italics added).

20 Scotch Reform (v Works 35).

3 84 1 he Modern LIU R L \ leu L u n ~ t ~1991

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May 19931 Theories of Litigation, Procedure and Dispute Settlement

anticipated modern commentators in doubting whether bargaining is ever really equal

or consent truly free. On this interpretation, it seems likely that Bentham would
have looked with deep suspicion on modern efforts to promote mediation, negotiation
or arbitration (especially in private), and other alternatives to the kind of open, cheap,
simple, speedy implementation of the law that would be achieved in his ideal court
system.
Some of Bentham's concerns have resurfaced in modem debates, typically divorced
from the comprehensive framework of his grand design. For example, Lon Fuller
in developing his famous distinction between 'monocentric' and 'polycentric' tasks
and arguing that courts should, as far as possible, not take on the latter, assumed
a similar conception of courts to Bentham.21He saw them as institutions with
specific characteristics only suited to applying and implementing law in respect of
'monocentric' tasks. Some critics have challenged this 'traditionalist' view, arguing
that courts are much more flexible institutions that have a crucial role to play in
adapting laws and politics to changing conditions and in creative problem-solving
generally. It is partly because of this 'adaptationist' view of the role of courts that
Owen Fiss has argued forcefully 'against settlement,' taking almost as strong a
position as Bentham on the basis of a view of the role of courts that Bentham
categorically rejected.22
Bentham's picture of the Natural System of procedure and his recommendations
for access to justice may seem to be simplistic, Utopian and unworkable to some
modern eyes; but they contain the clearest and most coherent example of a design
theory that vests responsibility for implementation of law and vindication of rights
almost exclusively in state courts, and his reasons for this need to be taken seriously
in considering alternatives.

Llewellyn's Law-Jobs Theory and Some Successors

Karl Llewellyn's 'law-jobs' theory is rather better known than Bentham's writings
on adjective law, but like the latter it represents a relatively neglected part of his
It is relevant in the present context because it places dispute prevention
and dispute settlement at the centre of a general sociological theory of law-
government. The outline of the theory can be summarised as follows24:All of us
are members of groups, such as a family, a club, a teenage gang, a school or
commercial organisation, a trade union, a political party, a nation state, the world
community. In order to survive and to achieve its aims, in so far as it has aims,
any human group has to meet certain needs or ensure that certain jobs are done.
The first, perhaps the most important, of these jobs is to channel behaviour and
expectations of members of the group in order to avoid conflicts or disputes within
it. Second, when disputes arise, they have to be resolved or, at least, be kept at
a tolerably low level, or else the group will disintegrate or its objectives will be
frustrated or impaired. Third, as the circumstances of the group change, so the
behaviour and expectations of members of the group have to be adjusted to such

21 Fuller (1979) op cit, cf Goldberg, Green and Sander, op cir ch 2.

22 0. Fiss, 'Against Settlement' (1984) 93 Yale U 1073. The most important modern defence of

compromise is by Stuart Hampshire, Innocence and Experience (London: Allen Lane, 1989).

23 See especially K. Llewellyn, 'The Normative, the Legal and the Law-Jobs' (1940) 49 Yale U 1355.

24 This formulation is adapted from W. Twining and D. Miers, How to 7hings With Rules (London:

Weidenfeld & Nicolson, 3rd ed, 1991) pp 159-160.

C The Modern Law Review Limited 1993 385

The Modern La\+)Review [Vol. 56

changes in order to avoid conflicts and disappointments. Fourth, decision-making

in the group needs to be regulated both in respect of who has power and authority
to participate in decisions and in respect of the procedures by which decisions are
arrived at. This allocation of authority and power is typically the primary function
of a 'constitution' of, for example, a club or a nation state. Fifth, in any group,
but especially in complex groups, techniques, practices, skills and devices need to
be developed for satisfactorily meeting the first four needs. Channelling behaviour,
settling disputes, making smooth adjustments to change and providing for acceptable
ways of reaching decisions can often be difficult tasks, involving high levels of skill
or quite refined or sophisticated devices and institutions.
This last category, which Llewellyn called the 'Job of Juristic Method,' focuses
attention on institutional design (eg constitution-making), specific inventions and
devices (eg the letter of credit, the trust, mini-trials), individual slulls (eg in negotia-
tion, advocacy, fact-management) and more general craft traditions. In bare outline
this looks like a fairly orthodox functionalist sociological theory, which provides
a convenient characterisation of the main tasks of law, but can hardly be claimed
as particularly original except perhaps in repect of the focus on juristic method or
legal technology. Moreover, it has been suggested, this is an example of 'extreme
functionalism' and hence is vulnerable to standard criticisms of old-fashioned
functionalism of the kind associated with Talcott Parsons and Robert Merton."
This is not the place to consider such criticisms in detail. I believe that the theory
can be interpreted in a way which exonerates it from the most damaging criticisms
and that aspects of it are suggestive and have been fruitfully developed by Llewellyn
and others. Here, however, I wish to advance some reasons why this provides a
particularly helpful perspective from which to consider dispute settlement.
First, the theory boldly claims to apply to all human groups, from a two-person
unit (such as a motor-racing team or a one-parent family) to the world community.
It includes submarines, prisons, clubs, tribes, villages and multinational corporations,
and regional groupings as well as nation states. Controversy has surrounded how
useful it is to treat all human groups as corn parable^,^^ but in so far as one can ask
certain standard questions about how disputes are avoided and handled in any group
its claim to comprehensiveness is particularly significant. For example, it helps to
free legal theory from focusing exclusively on the nation state and it thus provides
a starting point for theories of legal pluralism and 'non-state law.'?' Second, the
theory provides one escape route from obsessive concern with the definition of law.
For Llewellyn, 'the institution of law-government' was the main, but not the only,
institution specialised to performing the law-jobs in those groups we choose to call
'societies'; conversely, the law-jobs are the main, but not the only, functions of
that institution. In specific contexts for particular purposes, it may be useful to
distinguish between the 'legal' and 'non-legal,' but these are merely secondary issues
of taxonomy. From this perspective it matters little whether, for example, the Kpelle
moot, a university disciplinary committee, an Ifugao 'go-between,' a marriage
guidance bureau, or a 'rent-a-judge trial' are labelled as 'legal' or not - they are
all institutionalised dispute-processing mechanisms that can be compared and

25 A. Hunt. Tne Sociological Movement in Larr (London: Macmillan, 1978) ch 3. For a balanced discussion
of functionalism in the sociology of law, see R. Cotterrell, The Sociology of lcrw: An Introduction
(London: Butterworths, 2nd ed, 1992) ch 3.
26 eg Cotterrell. op cir pp 80-83; J . Frank, Courts on Trial (New York: Atheneum, 1963) p 77.
27 J . Starr and J. Collier (eds), History and Power in the Study of Law (Ithaca: Cornell UP, 1989): Twining
I 1989) op c;t n 14, at pp 129-133.

3 86 T h e hlodern I .I\\ R s \ ~ e uI lnllted 1991

May 19931 Theories of Litigation, Procedure and Dispute Settlement

contrasted within a single framework. Third, Llewellyn claimed that all of the law-
jobs are essential to group survival and successful achievement of collective
goals.28But any particular task can be done by a variety of means, singly or in
combination. Dispute prevention in most societies, for example, is served by a
complex mixture of formal and informal norms, education, rewards and incentives,
hedges, barbed wire, physical force and other means of social control. Similarly,
in any group, one should expect dispute settlement to be achieved by a variety of
means. In a famous passage, Llewellyn summed up the basic insight, which he
credited to Max Weber:
The jobs to be done are jobs to be done: modern complexity of institution serves merely
to highlight processes which require to be gone through, in some fashion, in any group. Tne
jobs, therefore, get themselves done after some fashion always - or the group simply is no
more. Hence if the officially announced imperatives fail to put themselves over, one must
look elsewhere for the doing of the jobs . . . Hence to see a Legal regulation which is not
working is promptly to face a problem of further inquiry: What is working and
Finally, as this passage suggests, the law-jobs theory is a contextual theory which
requires that any particular institution, device, 'case' or other phenomenon should
be viewed in the context of a larger whole. Any decision or event in a process such
as litigation should be viewed in the context of the process as a whole. Thinking
in terms of total pictures and total processes was part of the basic methodology of
Llewellyn's 'realism'. This leads naturally to one of the basic insights and truisms
of modern dispute settlement theory: that in any given society only a tiny proportion
of all disputes are likely ever to reach those institutions we choose to call 'courts'
or even those processes which might be included within the sphere of 'litigation.'
A natural starting point for the consideration of any particular dispute settlement
method or institution is a realistic demographic total picture of all disputes in the
society or group in question and how they are presently being resolved.
The 'law-jobs theory' was developed in a number of directions by Llewellyn and
others but, in my view, it has by no means fulfilled its potential. Apart from its
direct influence on legal anthropology, four particular developments are of particular
interest in the present context.

Law-Crafts and Legal Slulls

Llewellyn in his later years elaborated a general theory of the crafts of law, which
had both sociological and educational dimensions. It has been particularly influential
in respect of the modern emphasis on direct teaching of legal skills (such as negotia-
tion, interviewing, counselling and advocacy) based on systematic job analysis and
skills analysis of lawyers' operations and the role of law-trained people in a given
society .12

28 This claim can be interpreted as a useful tautology, if the concept of 'group' is defined in terms of
co-ordination and absence of conflict; W. Twining, Karl Llewellyn and the Realist Movement (London:
Weidenfeld & Nicolson, 1973), at pp 180-182.
29 Llewellyn (1940) op cit at pp 1381-1382 (Llewellyn's italics).

30 Twining, 'Talk about Realism' (1985) 60 NYU L Rev 329, at pp 375-380.

31 eg W. Felstiner, R. Abel and A . Sarat, 'The Emergence and Transformation of Disputes: Naming,

Blaming and Claiming' (1980-81) 15 Law & Society Rev 631.

32 See Karl Llewellyn and the Realist Movement, pp 353-356, 505-512. See especially I. Rutter, 'A
Jurisprudence of Lawyers' Operations' (1961) 13 J LRgal Education 301; Mackie, Gold and Twining,
op cit n 6.

5 The Modern Law R e v ~ e wL ~ m ~ t e1993

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The Modern Lnw Review [Vol. 56

The Parental Model of Law-Government

Llewellyn also developed a typology of dispute settlement (parental, adversary,
inquisitorial), initially in connection with the Pueblo Indians of New Mexico and
subsequently in planning a project on Soviet law that was never executed." The
idea of 'the parental' was later used by Professor Harold Berman in his writings
on Soviet lawlJ and may indirectly have influenced Mirjan Damaska's analysis of
comparative procedure, which more directly links different ideological structures
to systems of legal procedure (see below).15

Arbitration
Llewellyn's wife, Soia Mentschikoff, used the law-jobs theory (including the
'parental' concept) in her work on commercial arbitration, including the ambitious
Chicago Arbitration Project that was never fully ~ompleted.'~

Theories of Litigation
Llewellyn was also directly and indirectly influential on subsequent theorising about
litigation. Perhaps the most sophisticated example of work in this tradition is by
John Griffiths, who has developed a total process model that takes account of modern
developments in the sociology and anthropology of law.j7 His concern was to
construct a general sociological theory of litigation, external to any particular legal
system, for the purpose of conducting 'scientific' empirical research, specifically
into divorce proceedings and administrative appeals in Holland.
Griffiths usefully draws together some of the main lessons to be gleaned from
the sociological and anthropological literature. For example, that concepts such as
'dispute' and 'case' are problematic; that it is a common fallacy to assume that social
processes are typically unilinear; that terms like 'dispute settlement' and 'dispute
resolution' give a false impression of finality, whereas a particular agreement or
decision may be just one phase in a longer process, or feud or story or series of
stories; and that 'ADR' is often part of rather than an alternative to litigation. This
is just one example of the sociological literature providing salutary reminders of
complexities. which are sometimes forgotten in the optimistic discourse of a new
movement.

A Comparative Theory of Procedure: Mirjan Damaska

Bentham's theory of adjective law and rational adjudication was an integral part
of a prescriptive design theory. It belongs to censorial rather than expository
jurisprudence. Llewellyn and the other writers mentioned in the preceding section
largely adopt perspectives drawn from social anthropology and sociology. My next

33 ibid pp 363-365, 475-476.

34 eg H. Berman. Justice in the USSR (Cambridge, Mass: Harvard UP, 2nd ed, 1963), esp at pp 421 -423.

35 M . Damaska, 'Evidentiary Barriers to Conviction and Two Models of Criminal Procedure' (1973)

121 U Pa L Rev 506; The Faces of Justice and State Authorizy (New Haven: Yale UP, 1986).
36 S. Mentschikoff, 'Commercial Arbitration' (1961) 61 Columbia L Rev 846.
37 J . Griffiths. 'The General Theory of Litigation - A First Step' (1983) 5 Zeitschrijfur Rechrs~oziolo~ir,
Heft 2 , 145. discussed in detail in RE ch l I .

388 The Modern l.dw Rexleu L ~ r n ~ t e1991

d
May 19931 Theories of Litigation, Procedure and Dispute Settlement

example also involves Weberian 'ideal types,' used as tools of analysis and explana-
tion in the comparative study of legal procedure. Mirjan Damaska's important The
Faces of Justice and State Authority, published in 1986, adopts the perspective and
style of a comparative lawyer, but it has potential significance for many specialists
whose concerns are more parochial. The author is exceptionally qualified to undertake
the task, for he writes with authority and firsthand knowledge of the administration
of justice in socialist, civilian and common law systems. A Yugoslav by birth,
education and training, Professor Damaska taught and practised law in his own
country before moving to the United States in the early 1970s. He is able to draw
on literature in several European languages and from several disciplines. Students
of Evidence and Criminal Procedure, and many others, will be familiar with
Damaska's outstanding article on 'Evidentiary Barriers to Conviction,' published
in 1973. The present work is more ambitious and more abstract. It is an attempt
to construct a systematic theoretical framework for the study and comparison of
'legal process' in modern Western legal systems.38
Throughout, Damaska adopts the standpoint of the civis peregrinus, an outside
observer who is relatively detached from particular internal debates and disagree-
ments. One of his concerns is to expose some common errors and pitfalls in the
discourse of comparative procedure: for example, the conflation of functions of
state with structures of government; simple determinist attempts to correlate socio-
economic organisation with procedural forms; the equation of Anglo-American
procedure with the notion of adversarial 'contest' and civilian procedure with
'inquisitorial' proceedings, when most actual procedural systems are hybrids
embodying mixtures of 'inquest' and 'contest' that need to be carefully differentiated;
the related error of treating 'contest' and 'inquest' as different means to shared ends,
rather than as representing procedural structures which are mainly designed to serve
different ends.
Damaska's method is to set up 'ideal types' which are sufficiently precise and
detached from historical contingencies to serve as general tools of analysis. The
focus is on the design of procedural systems and institutions, their structures, functions
and architecture. The treatment is fairly abstract; even the extensive illustrative
material is treated at a fairly high level of generality. Damaska sets up three sets
of polar models or 'ideal types' relating to systems of government, structures of
authority and systems of legal procedure respectively. His three sets of distinctions
can be briefly restated as follows39:Systems of Government can be characterised
by the extent to which they approximate to or diverge from pure versions of 'the
managerial state,' in which the role of government is to manage all important aspects
of social life, and 'the reactive state,' in which the role of government is limited
'to provide a framework for social i n t e r a ~ t i o n . This
' ~ ~ corresponds with familiar
distinctions between 'interventionist' and 'laissez-faire ' ideologies of government.
Most modern Western societies have hybrid systems of government (and mixed
economies) which lie somewhere between the two extremes. Even the United States
departs in important respects from the 'ideal type' of the reactive state; whereas
the United Kingdom, despite recent incursions on the welfare state, is in important
respects somewhat closer to the managerial model.
Structures of State Authority can similarly be characterised in terms of a distinction

38 Damaska (1986), op cit p 2. Damaska focuses almost entirely on 'Western' systems, but deals with
some aspects of the situation in the Soviet Union and the Chinese People's Republic prior to 1985.
39 This summary is adapted from RE, at pp 180-182.
40 Damaska (1986), op cir p 71.

O The Modern Law R e v ~ e wLirn~ted 1993 389

The Modern Law Review [Vol. 56

between hierarchical and co-ordinate authority. A reasonably clear example of the

former is a bureaucratic state apparatus run by professionals, who are in a hierarchical
relationship to each other, and who purportedly make most important decisions
according to precisely defined standards. Co-ordinate authority is characterised by
extensive lay (non-specialist) participation, single levels of 'horizontal' authority
and resort to undiferentiated community standards rather than formal rules. Again,
most actual systems of authority are hybrids. However, there are clear examples
in particular spheres: for example, the English jury closely fits the co-ordinate model
in that it is composed of ordinary citizens, its findings are only exceptionally subject
to review or appeal ('the sovereignty of the jury') and its decisions, within its allotted
sphere, are governed by 'common sense.' Significantly, juries do not, indeed cannot,
give reasons for their decisions. This contrasts significantly with the lower judiciary
in countries like Italy and France, where the personnel are trained officials, whose
decisions even on questions of fact have to be reasoned and are subject to regular
review by and appeal to higher authority.
The third distinction, between 'inquisitorial' and 'adversarial' systems ofprocedure,
is also commonplace. But Damaska departs from common usage, which tends to
be both ambiguous and vague, by distinguishing these categories in terms of purposes
rather than treating them as different means to shared ends.3' The purpose of an
'inquest' is implementation of state policy in order to solve a problem; the purpose
of a 'contest' is the legitimated resolution of a single dispute between identifiable
parties. It is a truism of procedural scholarship that it is misleading to equate Anglo-
American procedure with 'adversary' proceedings or systems influenced by Roman
Law with 'inquisitorial' proceedings. English Criminal Procedure, for example,
viewed as a total process, can be interpreted mainly in terms of the model of 'inquest'
with a few 'adversarial' glosses, especially at the stage of a contested trial - an
event which occurs in only a small minority of cases. Damaska goes further than
this: he argues that it would be surprising to find any modern state which had only
one h n d of procedural arrangement and, indeed, that examples of particular institu-
tional arrangements which fit the 'ideal types' exactly are quite e~ceptional.~? Most
procedural arrangements, let alone most 'systems' of arrangements, are hybrids.
Nevertheless, these concepts, if used precisely, have considerable explanatory power.
These distinctions are, of course, potentially controversial; there is also scope
for differences in interpreting and applying them to particular examples. That serves
to underline the point that it is not possible to give an ideologically neutral account
of a legal system. However, Damaska's central thesis may be less controversial.
He argues that these different ideal types can combine in practice in a variety of
ways: some combinations one would expect to be more 'comfortable,' while others
would almost inevitably give rise to serious tensions. For example, the managerial
state, hierarchical authority and inquest fit together quite naturally; conversely, there
is likely to be regular tension between adversary proceedings and hierarchical
authority. However, and this is the central point, there are many more workable
combinations of relatively pure types than one might expect; many particular
arrangements, as well as whole systems, represent mixes or compromises. For
example, there is no necessary incompatibility between 'inquisitorial' procedure
and a largely reactive state, on the one hand, or a largely co-ordinate system of
authority on the other.j3Many English tribunals are concerned with implementa-

O The Modern Law Review Limited 1993

May 19931 Theories of Litigation, Procedure and Dispute Settlement

tion of law relating to such matters as welfare, tax and immigration: cases typically
come before them when a decision is challenged. There is in a sense a 'dispute'
and hearings have some 'adversarial' characteristics. We live in a world of hybrids.
Damaska's book has been aptly described as 'a political analysis of Procedural
Law.'44It brings to the fore questions about the relationship between procedural
arrangements and political structures and goals. Damaska deals only incidentally
with non-curial proceedings, but his sensitive analysis of the complexities of the
relationships between types of political organisation and legal procedures has
important implications for broader issues of dispute ~ e t t l e m e n t . ~ ~
f i e Faces of Justice and State Authority is undoubtedly the most significant recent
contribution in the English language to the comparative study of legal procedure.
It contains a number of controversial theses and interpretations which are likely
to be debated for many years. Its immediate relevance is that it provides a useful
bridge between the specialised and localised Anglo-American literature on dispute
settlement and the comparative study of common law, civilian and socialist legal
systems; it also provides a broad framework within which to discuss particular
institutional arrangements in different political systems. Although Damaska rightly
points to the variety of feasible institutional arrangements, he emphasises that the
archetypal pattern for the pursuit of the goal of conflict resolution is a system of
co-ordinate authority in a reactive state. In this view, alternative dispute resolution
institutions will tend to fit uneasily within a managerial regime with a hierarchical
structure of state authority.

Conclusion
From this highly selective survey of the stock of Anglo-American theorising that
bears on dispute settlement, one might extract the following general obvious and
not-so-obvious propositions:
(a) Concepts such as 'alternative,' 'dispute,' 'resolution,' 'case' and even
'adjudication' are problematic and need to be used with caution in particular
contexts.
(b) In common law countries not only is a tiny proportion of all disputes litigated,
but also only a very small percentage of litigated cases is 'resolved' by
adjudicative decisions (on questions of fact or law).
(c) In so far as ADR is concerned with designing institutionalised alternatives
to litigation or adjudication in order to reduce vexation, expense and delay,
it should not be taken for granted that the benefits of such institutions will
necessarily outweigh the costs.
(d) Most systems of legal procedure are hybrids in which a great variety of
institutions and procedural forms can be accommodated more or less 'com-
fortably,' because the relationship between systems of government, systems
of state authority and procedural systems is more complex than might be
supposed. The same probably applies to institutions of dispute resolution.
(e) A total process perspective underlines the value of looking at particular

44 A. Stein, 'A Political Analysis of Procedural Law' (review of Damaska) (1988) 51 MLR 159.

45 See especially Damaska, op cit at pp 78-79.

46 A more comprehensive survey would include, inter alia, writings on procedural justice, economic

analysis of law, the sociology of the legal profession and recent discussions of the reform of judicial
administration and civil procedure.

O The Modern Law Review Limited 1993 39 1

The Modern Law Review [Vol. 56

decisions and events in the context of those that precede and succeed them
in time. So-called 'resolutions,' 'settlements' or 'terminations' are frequently
not the end of the story of a particular dispute or case, especially in a situation
of continuing relationships.
(f) The great bulk of the English language literature on dispute resolution has
been stimulated by specifically American concerns and perceived problems.
The literature of social anthropology provides some powerful warnings about
the complexity of social processes and their relationships to specific cultural
and historical contexts.

The Modern Law Re\lew L~ril~ted

1993
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Alternative to What? Theories of Litigation, Procedure and Dispute Settlement in
Anglo-American Jurisprudence: Some Neglected Classics
William Twining
The Modern Law Review, Vol. 56, No. 3, Dispute Resolution. Civil Justice and Its Alternatives.
(May, 1993), pp. 380-392.
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[Footnotes]

22
Against Settlement
Owen M. Fiss
The Yale Law Journal, Vol. 93, No. 6. (May, 1984), pp. 1073-1090.
Stable URL:
http://links.jstor.org/sici?sici=0044-0094%28198405%2993%3A6%3C1073%3AAS%3E2.0.CO%3B2-A

23
The Normative, the Legal, and the Law-Jobs: The Problem of Juristic Method
K. N. Llewellyn
The Yale Law Journal, Vol. 49, No. 8. (Jun., 1940), pp. 1355-1400.
Stable URL:
http://links.jstor.org/sici?sici=0044-0094%28194006%2949%3A8%3C1355%3ATNTLAT%3E2.0.CO%3B2-%23

31
The Emergence and Transformation of Disputes: Naming, Blaming, Claiming . . .
William L.F. Felstiner; Richard L. Abel; Austin Sarat
Law & Society Review, Vol. 15, No. 3/4, Special Issue on Dispute Processing and Civil Litigation.
(1980 - 1981), pp. 631-654.
Stable URL:
http://links.jstor.org/sici?sici=0023-9216%281980%2F1981%2915%3A3%2F4%3C631%3ATEATOD%3E2.0.CO%3B2-P

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http://www.jstor.org

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35
Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative
Study
Mirjan Damaška
University of Pennsylvania Law Review, Vol. 121, No. 3. (Jan., 1973), pp. 506-589.
Stable URL:
http://links.jstor.org/sici?sici=0041-9907%28197301%29121%3A3%3C506%3AEBTCAT%3E2.0.CO%3B2-Q

36
Commercial Arbitration
Soia Mentschikoff
Columbia Law Review, Vol. 61, No. 5. (May, 1961), pp. 846-869.
Stable URL:
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