Justice without Law?

Justice without Law? : Resolving Disputes without Lawyers

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Describes the disadvantages of litigation, looks at what the American legal system suggests about our society, and discusses arbitration, mediation, and conciliation, alternatives to our adversary approach to justiceshow more

Product details

  • Hardback | 196 pages
  • 142.24 x 210.82 x 20.32mm | 362.87g
  • Oxford University Press Inc
  • New York, United States
  • English
  • 019503175X
  • 9780195031751

Review Text

The silent half of Wellesley historian Auerbach's title is "Law Without Justice?" - to describe his feeling that law, in the form of litigation, is an instrument of wealth and power. As such, it suits a society of competing individuals and interests; and its growth, commonly taken as a sign of social development, is also a sign of communal decomposition. That's what Auerbach (Unequal Justice) is getting at in discussing various alternative approaches to dispute-settlement, and their defeat by legal methods. The Puritan and Quaker communities were founded on communal groupings rooted in the community's relationship to God. The Puritans, more typically, came together in the covenant, and disputes between members threatened the harmony of the covenant. To resort to law to settle a dispute was viewed as ungodly; the proper recourse was to the church meeting, where the community interest determined the outcome. In a 1640 dispute over the fee for some carpentry work, for instance, the customer and the carpenter brought in two other carpenters, one chosen by each, to inspect the work; when they supported the carpenter, the disgruntled customer grumbled about one of them. The dispute finally wound up in church, where the woman was criticized for speaking behind the backs of her fellow congregationalists, thereby violating the values of community and brotherhood. This form of settlement weakened, however, as the ties of community weakened and commercial law grew. (The very idea of the covenant had a decidedly contractarian flavor in America, Auerbach notes.) Non-legal forms persisted nonetheless in 19th-century Utopian communities (though here, too, contract figured prominently) and into the 20th century in the form of immigrant-Jewish and-Chinese non-litigational courts. Among other forms of non-legal settlements, Auerbach discusses recourse to arbitration in commercial and industrial relations - emphasizing, however, that the terms are set by the legal establishment, and litigation precedes arbitration. The net result is a legal system that has absorbed its alternatives, but also one that cannot legitimize itself because it is not based on shared values. This cul-de-sac has been noted before, but Auerbach's treatment has the merit of showing the persistence of efforts to avoid legal alternatives, and to reestablish some form of community. Though Auerbach sees no answer, his light touch pays off in an insightful short study. (Kirkus Reviews)show more

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