The State's Role in Providing Courts to Adjudicate Civil Disputes

8/14/2019 The State's Role in Providing Courts to Adjudicate Civil Disputes

1/50

BERRY ZONDAG

THE STATES ROLE IN PROVIDING COURTS TO ADJUDICATE CIVIL DISPUTES:

A JURISPRUDENTIAL PERSPECTIVE.

AUGUST2006


2/50

2

TABLE OF CONTENTS

I Introduction ............................................................................................................ ................... 3II The social function of the courts ............................................................................................... 5

A. The courts social function according to the Nature of the Common Law ................ 5B. The courts social function according to the Rule of Law .......................................... 6C. The courts social function according to a functional approach ..................................... 7D. Evaluation of the courts performance in providing the social function. ..................... 11E. The public utility of civil litigation .............................................................................. 13

1 Litigation uses an adjudicative process, supported by state authority. ......................... 142 Litigation is an adversarial process .............................................................................. 153 Litigation has a wider impact than the issues at hand .................................................. 164 Litigation is public, and recorded .................................................................. ............... 185 Litigation includes a structured appeal system ............................................................. 186 Litigation is a professional legal process .................................................................... . 19

F. The constitutional function of the courts ..................................................................... . 20III Alternatives to civil litigation .............................................................................................. 22

A. Contemporary alternatives. ................................................ .......................................... 221 Alternatives within the government structure .............................................................. 22

(a) Executive decision making .................................................................... .................. 23(b) Government support in lieu of civil litigation ...................................................... 24(c) State sponsored mediation services ......................................................................... 24(d) Specialised tribunals .................................................................. .............................. 25(e) Specialised private adjudication services created by legislation ............................. 25(f) General (disputes) tribunals .......................................................................... ........... 25

2 Alternatives outside the government structure ............................................................. 26B. Historical alternatives .................................................................... ............................... 27C. Differences between common and civil law systems ................................................... 29D. The constitutional function of alternatives to litigation. ............................................... 30

IV Contemporary developments in civil litigation ................................................................... 32A. A comparison with some other jurisdictions ................................................................ 32B. Conclusion .................................................................. ................................................. 34

V A conceptual framework for the role of the state in civil litigation ........................................ 35A. Adjudication ................................................................ ................................................. 35B. Courts and the concept of authority .......................................................................... 36

1 The relation between authority and adjudication ........................ ................................. 362 Two types of structure of authority .............................................................................. 38

C. The role of the state ................................................................... ................................... 381 The reactive state ............................. ..................................................................... ....... 392 The activist state ........................................................ ................................................... 403 Mixed forms of state intervention ................................................................................ 41

VI The courts and political objectives ........................................................................... ........... 43VII Conclusion; courts and their proper social function in New Zealand .................................. 44VIII Bibliography .................................................................. ...................................................... 47


3/50

3

I INTRODUCTIONWe are accustomed to the way civil courts operate and we take for granted that

they are a necessary state institution. The costs of providing civil adjudication

services are much higher than what is charged to the litigants. Government must

prioritise its spending, and increasingly operates on a user pays basis in many of

its tasks. We know that alternatives to civil litigation are available; why would

the state provide sponsored civil dispute resolution?

This paper argues that this economical approach misses fundamental questions

about the role of the state in civil adjudication. It uses a jurisprudential view, in

which the administration of the law through the civil courts is placed in a societal,

historical, and constitutional context. The term political jurisprudential is per-

haps more to the point,1 as the issue proves to have a strong political connotation.

This paper seeks to introduce a conceptual framework to analyse the states role in

civil dispute resolution, and describes the situation in New Zealand in that con-

text. This study starts with the social function of the courts, and the ways in

which this may be evaluated. Next, alternatives to court adjudication, and con-

temporary developments, domestically and internationally, are discussed. Finally,

the conceptual framework is summarised and conclusions drawn.

This paper develops the argument that the operation of the court system as part of

the judicial infrastructure is a major instrument in achieving political objectives.

The use of that instrument includes the way the court system is organised, but

more importantly, it also operates by lowering access to the courts and developing

alternatives, thereby restricting the courts social relevance and constitutional

scope. As a result, the current social function of the courts in New Zealand is that

of a societal safety valve that operates on the basis of a fiction. The courts con-

stitutional role is underdeveloped, and is being restricted rather than increased.

1 See Martin Shapiro, Political Jurisprudence, Kentucky Law Journal, 52 (1964) 294, reprinted in :Martin Shapiro and Alec Stone Sweet On Law, Politics, and Judicialisation (Oxford Univer-

sity Press, Oxford, 2002) at 19 Shapiro introduces this political jurisprudential movementas concentrating on the specifically political aspects of laws interaction with society and de-


4/50

4

This paper suggests that the constitutional and political function of the courts is

much better understood by those with political power than by those subject to po-

litical power, and that this discrepancy underlies the philosophy that in a democ-

ratic society the judicial function must be independent and separated from other

branches of government, and shielded from the tyranny of majority rule.2 The

opinion is advanced that the New Zealand government is developing an undesir-

able attitude towards the function of the courts in civil litigation, and that an em-

phasis on improving the courts process, and widening its reach would be prefer-

able to the current policy of developing alternatives, and effectively restricting

access to the courts.

scribing the concrete impact of legal arrangements on the distribution of power and rewardsamong the various elements in a given society.

2 the crowning proof of democracy in our times is the growing acceptance and enforcement ofthe idea that democracy is not the same thing as majority ruledemocracy must protect itselffrom the tyranny of the majority Ran Hirschl Towards Juristocracy, The Origins and Con-sequences of the New Constitutionalism (Harvard University Press, Cambridge, London,

2004) 2. (Paraphrasing Ronald Dworkin inA Bill of Rights for Britain (Chatto and Windus,London, 1990))


5/50

5

II THE SOCIAL FUNCTION OF THE COURTSThis chapter discusses three approaches to the courts social function. The way

this function may be evaluated is considered, and the public utility of the courts is

described, using characteristics of the civil court process. This approach avoids

the more fundamental questions relating to the existence and character of a legal

system as such; i.e. issues at a higher level of abstraction.3

Courts are part of a legal approach to social control, a term itself described as

every way through which human society exercises a modifying influence upon

itself of part of itself.4 What follows must be seen in the legal (and therefore nar-

row) context of this definition, which in its broader meaning of course includes

social control mechanisms that are vastly different from legal structures.5

A. The courts social function according to

the Nature of the Common Law

Eisenberg6 proposes two paramount social functions for courts: the resolution of

disputes, and the enrichment of the supply of legal rules. In his approach these

functions are exercised in an environment where doctrinal propositions (i.e. law)

are kept coherent with social propositions (i.e. morals, policies and customs).

Eisenberg describes the task of courts in a pure and conceptual common law sys-

tem. There law develops through the courts, by judicial decision making in spe-

cific fact situations that gains application to comparable situations. A fundamen-

tal assumption, necessary for this system to operate, is that law is omnipresent,

i.e. it can be found either from general principles, from customs, or from ar-

3 An example of a set of questions by which existence and character of a legal system can be ana-

lysed is found in Joseph Raz The concept of a legal system : an introduction to the theory oflegal system (2d, Clarendon Press, Oxford, 1980) , who identifies questions as to existence,identity, structure and content, and who uses that analysis to compare the theories of AustinHart and Kelsen. In the current context, we would only be interested in the question relatingto existence, and only in a fraction of it, the practical operation of the civil adjudication sys-tem.

4 Julius Stone Social Dimensions of Law and Justice (Stevens & Sons Ltd, London, 1966) 743.5 Examples are propaganda, consumerism, religion, caste systems, feudalism etc.6

Melvin Aron Eisenberg The nature of the common law (Harvard University Press, Cambridge,Mass., 1988)


6/50

6

rangements between individuals. The role of a court is considering the evidence,

arguments, and propositions of law as advanced by the parties, and determining

the case on that basis. The proceeding are individualistic; they take place

within the boundaries set by the parties, and they are initiated by them.

The development of law therefore requires a reporting system,7 and places an

onus on the courts to maintain the structural integrity of the law, both in time, and

systematically. In this pure form, the common law system has inherent problems

with laws that are promulgated elsewhere (as in parliament) and that seek to regu-

late and manage society,8 rather than to describe or structure what is already pre-

sent, but non-formulated. Pure common law is conservative, slow to adjust, and

focused on dispute resolution, not on the by-product of rule making. It is reac-tive; it finds law after the fact, and new rules develop retrospectively. It is most

suitable for a laissez faire government style, where the state defines its task in

terms of providing supportive structures to maximise the efficiency of individual

pursuit of private objectives. The nature of the common law approach is in-

strumental and pragmatic, but does not comprehensively describe a social func-

tion, as it fails to recognise how the social control element in fact operates.

B. The courts social function according to

the Rule of Law

It may be argued that, as citizens, we are not really interested in the supply or en-

richment of rules, or the resolution of dispute coute que coute,9 but in the exer-

cise of justice, the proper upholding of rights between members of society.10

We are also interested in the maintenance of a proper balance between our indi-

vidual rights and the restrictions placed upon us by the governing structures we

accept as necessary. We are interested in a reasonably organised and regulated

society, and our interest in the courts focuses on the courts role as part of the

7 This is not necessarily a government task at all, as the development of law report series shows.8 Over-legislation of social practices will exacerbate the loss of coherence and unity in the legal

system, as argued by Santos et al (1996), as referred to in Hctor Fix Fierro Courts, justice,and efficiency : a socio-legal study of economic rationality in adjudication (Hart, Oxford,

2003) 15.9 In which case we could simply use the throw of dice, or the opinion of a lunatic.


7/50

7

governmental system that supports and/or regulates our individual and communal

pursuits.11 The following description, which uses the rule of law as a starting

point, comes therefore closer to describing a social, rather than an instrumental,

objective:12

The degree of confidence people have in the court system will influence their

belief in the rule of law. If people cease to see courts as relevant, effective and

accessible, they are less likely to believe that the rule of law means everyone is

entitled to the benefit and protection of the law, including them and people like

them. They are less likely to believe that courts will fairly and impartially re-

solve disputes between citizens and the state.

This approach is unfortunately somewhat circular; it proposes that the social objective

is the rule of law, and assumes that the belief in the rule of law depends on the func-

tioning of the courts. It describes the function of the courts as upholding the rule oflaw, without analyzing how a rule of law performs its social function. This descrip-

tion recognizes, however, that matters are not as clear cut as Eisenberg presents them.

It talks about influence of belief and likely to believe. The social function of the

courts is obviously not just about what courts actually do, but about what people think

they do, or what principles they think will be upheld by the courts. A rule of law

approach recognizes that the social function is about belief in principles, but it does

not explain how these operate.

C. The courts social function according to

a functional approach

The instrumental and principled approaches described above can be combined

into a functional model. A complex society requires an institution that is able to

conclusively decide disputes, using the principles and rules by which the society

is organised.13 This avoids the use of primitive means of conflict resolution,

10 Although it is admitted that the words just and rights have an entirely subjective meaning,which changes considerably with context. For a concise discussion of this aspect see RoscoePound Social control through law (Yale University Press, New Haven, 1942) 85-99.

11 In other words the concept of a Rechtstaat, to paraphrase Bracton, it is not the state thatmakes the law, but the law that makes the state.

12 New Zealand Law Commission Delivering Justice for all, a vision for New Zealand Courts andTribunals, NZLC Report 85 (2004) 3.

13 Following Simmels logic that complex societies are build of dyadic relationships. Disputeresolution by way of a third party introduces triadic dispute resolution, whereby the thirdparty has a role that may be represented on a scale from meditative to judicial, depending on

the process used and the authority position of the third party. Triadic dispute resolution pro-vides a societal model in which the myth of neutrality and independence of the third party


8/50

8

which are considered to have an adverse effect on public welfare. Impliedly, this

institution also functions to avoid abuse of by itself legal powers, such as immoral

legislation, or ultra-vires or arbitrary use of administrative power. By upholding

the rule of law between individuals and between individuals and the state, the

courts act as a backstop against arbitrary use of power in whatever form.14 The

social function is to provide the belief that conflict can ultimately be resolved by

way of a known and regulated just process in which parties operate on an even

footing. As long as the belief prevails that this institution exists and is accessible,

that it has the authority to perform its function, and that ultimately there is a just

law for every problem, there is no need to revert to other than regulated means of

protecting self-interest. Even a plural society, with fundamental differences on

substantive issues, can be maintained if there is agreement on rules of dispute

resolution and authority of decisions.

Restrictions on individual advancement are thus accepted, and courts will only be

called upon where a frustration threshold is exceeded. The court process itself

creates another, and higher, threshold.15 As a result, substantial abuse of power or

conflict must be present before the court system is used, and once engaged it ef-

fectively removes the conflict from society at large.16 If the court system would

fail to provide this function adequately, substantial abuse of power in a large

number of cases, or a very principled and highly divisive issue, would have to oc-

cur before a significant part of society would refuse to accept the validity of the

system as a whole.17 The word backstop is therefore in a sense misleading.

The social function can be performed without actually resolving any significant

number of conflicts; the word safety valve would be more appropriate.

must be maintained. See Georg Simmel The Sociology of Georg Simmel (Free Press, NewYork, 1950) And Martin Shapiro and Alec Stone Sweet On Law, Politics, and Judicialisa-tion (Oxford University Press, Oxford, 2002) 165, for the argument about Judicial Mythand at pg 211 for the social logic of triadic dispute resolution.


15 And often a whole series of increasingly higher thresholds when appeal processes are taken intoconsideration.

16 Hence the often heard remark the matter is currently before the court.17 Hence the conclusion that many revolutions or civil wars have very principled court cases as a

prelude. Daniel R Coquillette The Anglo-American legal heritage (Carolina Academic Press,Durham, 1999) 512 provides as examples: The Five Knights Case (1627) as the immediate

precursor to the English Civil War, and the Dred Scott Case (60 US 19 How. 393 (1857)) inthat role for the American Civil War.


9/50

9

In a common law system the decisions of the courts have a wider impact than the

resolution of specific disputes, and are an important means by which the law is

maintained and expanded. The very rules that the courts apply are shaped and

moulded in its process. This is the way the system (at least in theory) resolves the

inherent problem that results from the use of positive rules (rather than princi-

ples) to organise and regulate behaviour in an ever changing society. Law must

be stable and yet it cannot stand still, and when considering the system as a whole,

when seeking underlying principles, those of change as well as those of stability

must be ascertained.18 Court decisions are used to learn about the law, its applica-

tion and development. In that sense, the law forms an abstract description (a

mirror image) of society, showing its structural organisation of rights and re-

sponsibilities.19 In that same sense, the courts are an abstraction of society, in

which conflicts are played out in the stylised environment of legal proceedings.

The social function of the courts thus rests upon the fictions that law and the

rule of law can be abstracted from, but applied to, reality, and that courts are

available to perform and enforce that application: The fabric that holds civil so-

ciety together is the common adherence to social institutions.20

This does not mean that every conflict must be resolved by the courts or thatevery decision must comply with the highest standards that may be applied to it.

It is understandable that a friction is present between practicalities and esoteric

application of principles; but as long as justice is apparently available and seen to

be done, the social function of the courts will operate as required.21

There is in other words, a tension between what the courts actually do and the

perception that underlies their social function. In fact, courts may only undertake

a minute fraction of what they theoretically can do, and still perform the social

function. It is in this field of tension that political issues enter into the equation.

18 Roscoe PoundInterpretations of legal history (Harvard University Press, Cambridge, 1923) 1.19 The metaphor of a mirror is apt in that context, and it is interesting to note that the earliest writ-

ten German law text, Der Sachsenspiegel, written in the era of the early European treatiseson law (late twelfth and early thirteenth centurty), uses that metaphor, the word literallymeaning The mirror of the Saxons.


21

Pound refers to this principle as the habit of obedience. See Roscoe Pound Social controlthrough law (Yale University Press, New Haven, 1942) 53.


10/50

10

The question is how large this difference can be before society refuses to accept

the courts as a relevant institution within the legal system.

Another aspect of that difference is the scope of the decisions the courts are pre-

pared to make. It has been argued that, globally speaking, as part of their (more

or less explicit) constitutional role, the courts show increasing willingness to in-

volve in critical assessment of legislation, the operation of the administrative ap-

paratus, and even in supra national considerations.22 It is suggested that this con-

stitutional role is part of the courts social function, and that it involves an active

preparedness to test the boundaries of executive and legislative action, and a will-

ingness to determine cases that would traditionally have been considered outside

of the courts practical reach.

23

In other words, judicial activism is an implied re-quirement of our constitutional structure. We must ask how much difference can

exist between the perceived constitutional function of the courts and their actual

operational scope, before their relevance as an institution is lost. On the other side

of the equation is the question to what extent litigation should overtake roles that

were traditionally vested in other institutions, such as church, family, neighbour-

hood, sports- and social clubs, guilds etc.24 As may be seen, the question is not

only that of the balance between the judiciary and the other branches of govern-

ment, but includes consideration of other means of social control.25

While it is clear that our system is no longer a pure common law system, there

must be a point where one cannot maintain that the system is a common law sys-

tem at all, but has been transformed into something different. In other words, is

22 See Martin Shapiro and Alec Stone Sweet On Law, Politics, and Judicialisation (Oxford Uni-versity Press, Oxford, 2002) 149, who demonstrate this point in the context of constitutional

review by analysing developments in the USA, France and Russia. The authors refer to anagent model, where the state performs governing powers in a Lockean contract with thecitizens. In order to make that contract enforceable the agent role is split into three, with thedifferent agents competing for power out of their agent interest. Pressure on the courts toextend their scope and function is therefore inherent in the model of governance.

23 Both Fuller and Eisenberg considered that some issues were not suitable for adjudicative deter-mination. Fuller referred to these as polycentric problems, and Eisenberg as problems withmultiple criteria. Lieberman has devised a matrix that shows how society has moved fromthe adjudication of monocentric to more complex issues. See James Robert ForcierJudicialexcess : the political economy of the American legal system (University Press of America,Lanham, Md., 1994) 37-43.

24 See Ibid (chapter VII, towards a new legal paradigm).25 Pound sees law as a framework in which other means of social control can function, but recog-

nises (in 1942!) the increasing influence of formal institutions. Roscoe Pound Social controlthrough law (Yale University Press, New Haven, 1942) 22-27.


11/50

11

the fiction of the legal system upheld by way of window-dressing, while in real-

ity an entirely different system of societal organisation operates? Obviously, the

differences between the courts social function in theory and its practical applica-

tion are caused by the executive and legislative roles of the state which directly or

indirectly regulate what can be brought before the courts, how it is dealt with, and

what the consequences and authority of court decisions are. As New Zealand has

at best an ambiguous practical separation between executive and legislative func-

tions,26 it is important to consider the constitutional role as part of an evaluation of

the functioning of the courts.

D. Evaluation of the courts performance in providingthe social function.

The yardstick to measure the courts success will depend on the definition of the

social function. If that is the successful maintenance of a fiction, the test would

be simple, but sceptical; is civil unrest prevented without using more repressive

means of social control?27 At a less sceptical level, one could look at criteria such

as constitutional position, quality of decision making, proportionality, principled

appeal rights, accessibility, equality, respect for all, and efficiency, to name but a

few.28 This paper argues that reliance on this type of criteria is unsatisfactory, and

potentially misleading. By using the characteristics of the existing court system

as a basis for the definition of evaluation criteria, alternatives to that system are

not considered, nor is there any control for the variable whether the courts are ac-

tually used for their alleged backstop function. As an example, the criterion

constitutional position may complied with in theory, but this is rendered mean-

ingless if the courts make increasing use of public policy arguments or flood-

gate arguments to decide issues between individuals and state institutions,29 es-

26 For some interesting examples in the field of tertiary legislation see Robin Pawsey "Tertiary

Legislation" New Zealand Law Journal 21427 Compare this with Raz comments on the principle of efficacy, i.e. the ratio of cases of obedi-

ence to the total number of opportunities to obey them, as a test of the existence of a legalsystem in a general sense. See Joseph Raz The concept of a legal system : an introduction tothe theory of legal system (2d, Clarendon Press, Oxford, 1980) , chapter IX.

28 See New Zealand Law Commission Delivering Justice for all, a vision for New Zealand Courtsand Tribunals, NZLC Report 85 (2004)

29

In other words the constitutional position as third branch is in jeopardy when courts act in apolicy implementing, rather than in a conflict resolving capacity.


12/50

12

pecially where these institutions are increasingly dressed up in corporate struc-

tures or as profit-oriented or equity-gathering enterprises.30

It seems that accessibility (which also includes transparency of the court system

and information supply) is the most important criterion to evaluate a social func-

tion, as it considers a practical and operational relationship between courts and

society, and is most capable of objective determination. The other criteria are of a

secondary nature, as they follow by default from the concept of rule of law and

the constitutional structure. They cannot be determined other than in terms of

vague approximations. It is no coincidence that the titles of the reports into re-

form of civil justice invariably refer to the accessibility criterion.31

If courts would be perfectly accessible there would be a continuous stream of

litigation, providing accurate and detailed information on the issues between citi-

zens, and on exactly where and how the state plays a role in every aspect of soci-

ety. It can be argued that this level of accessibility ought to be a cornerstone of

a truly democratic society. However, and additionally, as taxpayers, we are con-

cerned that money spent on our behalf is not wasted. Economic efficiency is also

a criterion that has some capability of objective determination. An attempt to ana-

lyse the courts economic performance is obviously too wide for this paper andhampered by the problematic question with which alternatives the court system

must be compared to make such an economic analysis useful, or even possible.

Another problem is that the benefits of having an efficient courts system may not

be immediately obvious.32 A further problem for economic analysis is the ques-

tion with what other government expenses a court system may be validly com-

pared. This raises moral and ethical considerations which again result in political

choices that are ambiguous at best. As examples: is it ethical for a government to

spend $150,000 on uncertain surgery for an 85-year old, and refuse to make

$5,000 worth of court effort available to resolve a civil dispute that may poten-

30 It is in that context troublesome that the cabinet response to the Law Commissions report (that

suggested structural changes to the court system) was to refute such changes but to insist onprocess improvement by further bureaucratisation of the system, under control of the execu-tive branch. See in that context also note 56, referring to a truism of political organisation.

31 For example Delivering justice for all in New Zealand, and Access to justice in England.32

It has been argued that differential rates of national economic development are in large part ex-plained by the relative effectiveness of legal systems in reducing the cost of exchange be-


13/50

13

tially ruin a substantial part of the social productive lives of two 25-year olds?

Or: is it ethical for a government to provide redress against its own actions

through an independent court system that is simply non-usable because of its

costs?

At a more fundamental (but not less important) level, it should be considered

where the responsibility lies for evaluating the courts performance, and for taking

corrective action if that is deemed necessary. In our system that responsibility

will probably be considered to lie with parliament, although it can be validly ar-

gued that this responsibility can only properly lie with the court system itself, and

that a higher order (i.e. constitutional or democratic) mechanism ought to be

available to regulate this evaluation.

Despite these evaluation problems, there is no doubt that the New Zealand court

system is currently not fulfilling its social function, or as the Law Commission

phrased it:33

The core lesson we have learned from the people who offered their views in the

course of this review is that the court system has to do better in winning and re-

taining the confidence of New Zealanders from all our many communities.

E. The public utility of civil litigation

Litigation means adjudication in a government controlled environment, supported

by state authority. This must be compared with alternative (non-adjudicative)

processes or with adjudication outside the court structure. The reason parties seek

court adjudication is the coercive power to compel participation and enforcement.

The threat of using the courts process thus also acts to facilitate more consen-

sual processes.34 The public utility is therefore to support consensual methods of

social organization, and to resolve disputes where that is not possible by consen-

tween strangers. (North (1981,1990), as referred in Martin Shapiro and Alec Stone Sweet On

Law, Politics, and Judicialisation (Oxford University Press, Oxford, 2002) 261.33 New Zealand Law Commission Delivering Justice for all, a vision for New Zealand Courts and

Tribunals, NZLC Report 85 (2004) ,3.34 In the sense that the threat of litigation compels parties to participate in other dispute resolu-

tion processes, or provides for enforcement of outcomes that have been achieved by way ofother processes. In that sense all alternative dispute resolution operates in the shadow of the

law. See Laurence Boulle and Miryana Nesic Mediation : principles, process, practice(Butterworths, London, 2001)


14/50

14

sus.35 In order to investigate the role of the state in civil litigation, some of its

characteristics can be considered.

1 Litigation uses an adjudicative process, supported by state au-thority.

The courts in their traditional role (in our system) have only one method of dis-

pute resolution available; adjudication. This means that consensual resolution

processes,36 alternative determination processes,37 and inquisitive processes38 are

unavailable in principle.39 As a result, disputes end up in an environment that is

often unsuitable for efficient and rational problem solving.40 This is the result of

the principle that the authority to compel participation and enforcement must be

balanced by notions of the rule of law.41

In our system, the judge is a state appointed official who is formally independent,

not only from the parties, but also from the government of the day. The authority

executed by the judicial branch is (in theory and in our system) only trumped by

the pinnacle of democratic decision making, the legislature.42 The role of the

state is therefore the provision of the required officials and the maintenance of

the institutional infrastructure in which the courts can operate and exercise their

social and constitutional functions. It must be noted that the character of the

process (for instance adversarial v inquisitorial) is not principally related to the

status and/or effect of court determinations. While a change in the first could be

characterised as an internal matter for the justice system,43 the second has a fun-

35 Whereby it must be noted that preference for amicable resolution over litigation is not a con-

temporary issue, a manual called Laws of Henry the First (written in the early twelfth cen-tury) proclaims that to be English Law amicitia over judicium. Harold Berman, JLaw and

Revolution, The Formation of the Western Legal Tradition (Harvard University Press, Cam-bridge Mass , London, 1983) 74.36 Such as mediation and facilitation.37 Such as hierarchical determination and expert determination.38 Where evidence is not presented by the parties but obtained by the court, and where argument is

restricted.39 Although increasingly this is changing, especially in areas where policy implementation is at

issue, as will be discussed below.40 As will be seen, this is recognised in jurisdictions around the world and is leading to dramatic

paradigm shifts in the way civil litigation is developing.41 Including the fundamental concept of natural justice, which is especially relevant in the adver-

sarial context of common law adjudication.42 According to the Diceyan concept of parliamentary sovereignty, and restricted by conventions

such as the principle that individual cases shall not be overruled.43 The procedure reforms contemplated in the District Courts are an example.


15/50

15

damental constitutional effect, as it addresses the relative authority between the

courts and other organs of the state. 44 This raises the question of the practical im-

plementation of the courts constitutional position. Although that is conceptually

very clear (constitutional independency from legislature and executive), in prac-

tice the entire court organisation, including the strategic development function, is

tightly controlled by the executive. The constitutional independence of the courts

is thereby restricted to a fiction, based on the independence of the judges only,

who are cast in an employment situation that is said to safeguard judicial auton-

omy. To what extent one is prepared to accept that this is a sufficient safeguard to

warrant the independence of the entire court organisation (which is many times

larger than the group of judges) depends largely on ones scepticism or experience

with how large organisations work in real life, rather than as conceptual models.

2 Litigation is an adversarial processThe common law litigation process is one of contest, focused on one event, the

hearing, where issues of fact and law are determined in one sitting. The resulting

public utility is that of a day in court, a process that has something of the me-

dieval joust where the issues are brought to a head in one decisive match between

the opponents. The role of the state lies in the provision of the infrastructure: the

arbiter overseeing the match, appropriately decorated premises, and mechanisms

to compel the presence of all the individuals that are required to hold the battle.

This must be contrasted with continental systems where each hearing is but a

phase in the construction of a dossier, ultimately decided on by the appropriate

level in the judicial hierarchy, and where the role of the state also includes all the

administrative and preparatory work to compile this dossier, which may be the

product of a number of sessions.

The rules of preparation for the common law court battle are highly structured,

in order to assure a fair trial. However, once the actual joust gets underway it is

largely governed by the arbiters discretion. Far reaching decisions can be based

on how issues were presented on the day. The duel focuses on substantive

44 Compare the role of supervising bureaucrats in the communist Soviet court system, where adecision of lower courts did not have effect until it was ratified by a higher authority. Mirjan

R. Damaska The faces of justice and state authority : a comparative approach to the legalprocess (Yale University Press, New Haven, 1986) 202-204.


16/50

16

justice, applied to the facts and argument that are presented. This focus narrows

when lay decision makers are also introduced. In our court system that is now

practically restricted to criminal matters,45 but the increase in lay decision makers

introduced statutorily and outside the court structure, must be noted.

Pure common law adversarial procedure, where the parties control the issues, the

evidence and the argument, concentrates on declaring a winner. There is little

scope for investigation whether other legislation or government policy would re-

quire an altogether different outcome from what the parties are arguing for, or

whether additional evidence would be required to appropriately determine that. It

follows that legislation with a strong social management character is difficult to

implement by enforcement through adversarial proceedings.

46

The changingcharacter of court process in for instance the family and youth courts must be un-

derstood in the context of the social engineering character of the relevant legisla-

tion.

3 Litigation has a wider impact than the issues at handThis proposition follows from the common law doctrines about determining and

developing law, which are grounded on the concepts that like cases must be

treated alike, that law is omnipresent although perhaps not yet made explicit, and

the doctrine of stare decisis. The legal-structural consequence is that each deci-

sion must comply with what has been termed social congruence, systemic consis-

tency and doctrinal stability.47 Social congruence holds that the body of actual

legal rules should correspond at any given time with a hypothetical body of rules

that would be arrived at by giving appropriate weight to all applicable social

propositions. Systemic consistency holds that the system of rules must be consis-

tent within itself, i.e. the law as a whole is a system and not a random mass of

45 Justices of the Peace and jury members, while there are also some adjudicative tribunals withinthe court setting that use lay members, but these are exceptions.

46 Imagine now that a state begins to use the legal process, or a part thereof, as in instrument toadvance values and policies broader than the resolution of a particular dispute. To the extentto which these transcending objectives requires verdicts to be substantively accurate, it be-comes more and more costly to sacrifice such verdicts for the sake of procedural integrity.Mirjan R. Damaska The faces of justice and state authority : a comparative approach to thelegal process (Yale University Press, New Haven, 1986) 103.

47

See Melvin Aron Eisenberg The nature of the common law (Harvard University Press, Cam-bridge, Mass., 1988) , chapter V.


17/50

17

non-related rules. Doctrinal stability introduces time as a factor, and holds that

systemic consistency must also be achieved over time.

The resulting public utility is therefore that court decisions clarify the law and ad-

just and develop it. The role of the state in providing civil litigation therefore

goes far beyond resolving individual disputes. Sponsoring civil litigation has

the side effect of enriching the law. Excluding civil matters from the formal

courts has the opposite effect, but it leaves opportunity for controlling the devel-

opment and implementation of the law through legislation only. This is especially

so where adjudication governed by legislation is exercised by non-court adjudica-

tors.48 In that context, attention must also be drawn to the increasing phenomenon

of adjudicative legislation, interest groups litigating carefully selected fact sce-narios in an attempt to move the courts to adjust the law. 49 Restriction of access

to the courts, which represent the only constitutional adjudicative authority, would

effectively block this important democratic mechanism.50

It must be remembered, that in the early development stages of the common law

system, the state (or rather the King) was not indifferent to civil proceedings,

quite the contrary. Almost all feudal matters had a direct consequence for the

Kings revenue, as had a significant part of what we would now call criminal pro-ceedings. As adjudication was the states main function,51 it integrated other

functions into it, and conversely, litigants implicated the King into their matters in

order to compel participation and enforcement. It was only after the concept of

state had been developed as being separate and independent of the ruler of the

day, that courts could develop as an independent source of authority, which could

be relied on without making the monarch in some way party to the dispute. This

was a distinctively different development between England52 and the continent,

were canonical law provided much earlier for an abstract and separate system of

court authority.

48 I.e. without decisions that create precedent, especially where the decision process and its out-come is also confidential.

49 Martin Shapiro and Alec Stone Sweet On Law, Politics, and Judicialisation (Oxford UniversityPress, Oxford, 2002) 181.

50 For a comparable recent New Zealand example see Chamberlains v Lai CA17/03, 8 March2005, currently awaiting a reserved decision from the Supreme Court.

51

See note 95.52 Where remnants of royal intervention in court process remain in place to date.


18/50

18

4 Litigation is public, and recordedThere are many aspects to this characteristic, varying from the protection of the

integrity of the process, to the necessity of a formal record of substantive relation-

ships between parties, registration of entitlements to property, the giving of rea-

sons, or even the formal registration of events. There is a strong historic signifi-

cance to these aspects, which is closely connected to the maintenance and devel-

opment of law. The public utility is that justice is not only done, it can also be

seen to be done; court decisions can have an educational function, and are made

subject to scrutiny. That scrutiny is not restricted to superior courts, but also the

public, social and political critics, the legal profession and especially the legal

academics. The public utility of the last source of scrutiny is that the developmentand application of the law receives feedback from a section of society that is ca-

pable of doing so in a more or less scientific manner. Just as one would be hesi-

tant to leave the structural design of a high-rise building to the office workers that

will use it, one would want to involve legal structural design specialists in devel-

opment of the law. The role of the state (especially in a common law system) is to

provide for civil litigation that is public, open and accessible, and which generates

public records that can be used by both professionals and the general public.

As an example, there is very little case law on the operation of the Consumer

Guarantees Act 1993, possibly because its administration is largely in the hands of

tribunals that do not publish decisions. One can therefore argue that removing

decisions from public scrutiny improves the relative authority of legislation, espe-

cially where decision making under that legislation is left in the hands of more or

less executive officials.53

5 Litigation includes a structured appeal systemAlthough this is a relatively late development in common law systems, it is now

well recognized that each court decision must be potentially subjected to at least

one re-consideration of the issue before a superior court. Although evidence is

not normally re-heard, the common law appeal is a re-hearing, and not a hierar-

chical continuation of trial, as it is in civil law systems. The decision at each level

53 In other words unwanted tinkering by judges is effectively prevented.


19/50

19

is considered to be a complete and final determination of the issues placed before

the tribunal; the judges in lower courts are also involved in the law-developing

process, and are not normally on a career path that leads to higher judicial posi-

tions, as is the case in civil law systems. The rules by which decisions are made

are amorphous and not sharply separated from the way decisions are made in so-

ciety. The common law appeal system operates because it has the purpose of

upholding and developing an internally consistent rule system, rather than apply-

ing a rule system in a consistently managed fashion. The public utility of the

common law structured appeal system is its quality control mechanism, which is

vital for the adage that the law works itself pure.54 An appeal in the common

law structure may resemble having another bite at the cherry, which provides a

social function, although this is again largely one of perception. It gives litigants

the certainty that a decision can always be subjected to scrutiny by a court of a

higher standing. The states role in this respect is therefore to provide an accessi-

ble structure of superior courts.

The appeal process has an important function for the state as well, as it provides

an efficient control mechanism on the activities of the lower echelons of bureau-

cracy. This has been argued to explain the willingness to invest in appeal systems

in states that are characterized by strong hierarchical authority but low regard for

individual rights, where such an interest in appeal systems would not be ex-

pected.55

6 Litigation is a professional legal processAdjudication in courts is dominated by legal professionals.56 The typical civil law

suit involves solicitors and counsel for both parties and a legally trained judge,

with a substantial practical experience as counsel. As a result, the operating par-

ticipants in the process share a common background of somewhat esoteric know-

ledge, which makes the process difficult to comprehend for the actual litigants. In

addition, the professional players all have real duties and obligations towards the

54 Ronald DworkinLaw's Empire (Belknap Press, Cambridge, London, 1986) 134.55 See Martin Shapiro and Alec Stone Sweet On Law, Politics, and Judicialisation (Oxford Uni-

versity Press, Oxford, 2002) 216.56

They are members of what may be called an epistemic community, and as such represent apolitical force with its own inherent bias. See Ibid (173.


20/50

20

system itself, which can override the obligations to the respective clients. Conse-

quently, the court environment has its own culture, purposefully maintained in

order to remove cultural differences between the parties from the abstract facts

underlying the legal issues. It also assists in creating an atmosphere that supports

the systems formalistic authority. The public utility is that the court process op-

erates at (the perceived) high level of professional quality and in a well estab-

lished, and strictly regulated environment. The entire proceeding is thereby

placed in a well-controlled atmosphere, considered the pinnacle of due process.

The states role is not only to provide the requisite infrastructure, but also to main-

tain a system of recognition of the courts status that makes the maintenance of

this deliberate professional environment meaningful.

Conversely, a process that relaxes this professional quality will lose some of its

adjudicative characteristics. If adjudication is decision making following proof

and reasoned argument, litigants must have the qualities to be able to present

proof and argument in accordance with the rules of process, and in a way that

aligns with substantive law. Changing the professional quality of the process may

make it more accessible, or easier to use by non-legal professionals, it will in fact

change it from litigation into something else.

F. The constitutional function of the courts

Civil litigation is a specific process that provides a number of public utilities, not

only for the disputants and thereby for society in general, it provides the environ-

ment in which individual interests can be measured against laws and regulations

that emanate from the state itself, and such actions are couched in the same safe-

guards as matters that are strictly between citizens. As relationships between in-

dividuals are increasingly governed by regulation, and as the state increasingly

operates through agencies that have a regular legal personality, an increasing

number of civil suits will include decisions that evaluate actions of the state.

The social function of the courts is therefore directly connected to their constitu-

tional function, which depends on the practical relevance of the courts constitu-


21/50

21

tional position, and the constitutional scope of the courts decisions. The question

arises whether alternative methods of adjudication can satisfy that requirement.

That can now be considered by looking at alternatives to civil litigation.


22/50

22

III ALTERNATIVES TO CIVIL LITIGATIONThe field of consensual (i.e. non-adjudicative) dispute resolution is several orders

of magnitude larger than adjudicative alternatives to civil litigation, but only a

small number of consensual processes are described here, typically those where

legislation has curtailed the possibility for civil litigation. In this context both

contemporary and historical alternatives are to be considered. Historical alterna-

tives are relevant because:57

Efforts to understand the creative activity of judges in a common law

system necessarily overlap with or lead into an attempt to write a so-ciological history of the common law, requiring study of the actual

past relations of legal institutions, precepts and doctrines to the then

existing social conditions.

The historical perspective can bring in sharp focus how our contemporary institu-

tions operate. When considering historical developments, it must be noted that

early law did not develop as an instrument to apply rules in order determine indi-

vidual rights and entitlements, but as a system of reconciliation, to hold people

together, rather than separate them.58

Finally, a brief comparison with civil law systems will be made.

A. Contemporary alternatives.

1 Alternatives within the government structureThese alternatives replace civil litigation with processes presented as either inde-

pendent from government or democratic in nature, but which are in fact subject toclose control by the government authority that is responsible for policy develop-

ment and implementation in the relevant subject area. These alternatives to adju-

dication comply closely with a hierarchical ideal of government authority; resolu-

tion of dispute takes place in the context of policy implementation by specialised

57 Julius Stone Social Dimensions of Law and Justice (Stevens & Sons Ltd, London, 1966) 52.58 Law was conceived as primarily as a mediating process, a mode of communication, rather than

as a process of rule making and decision making. Harold Berman, JLaw and Revolution,

The Formation of the Western Legal Tradition (Harvard University Press, Cambridge Mass ,London, 1983) 78.


23/50

23

bureaucrats, organised in hierarchical organisation structures. The role of the state

in these processes is therefore twofold, first access to conventional courts is re-

stricted by making it outright impossible, excessively costly, cumbersome, or

simply too time-consuming. Secondly, centralised policy becomes the operative

benchmark for hierarchically organised distributed decision making. The follow-

ing alternatives must be compared and contrasted with providing a well distrib-

uted and accessible, decentralised general court structure, with its own, independ-

ent, constitutional position.59

(a)Executive decision makingExecutive decision making increasingly involves procedures that closely resemble

adjudicative structures. In some instances these procedures involve disputes be-

tween parties with an adjudicating government organisation acting in an execu-

tive capacity. Examples are first instance determinations under the Resource

Management Act 1991, the Local Government Act 2002, or decisions of various

controlling boards or organisations dealing with censure, certification etc. Typi-

cally these structures are governed by empowering and procedure-controlling leg-

islation, and they have a final appellate procedure that involves the general courts,

or a specific branch of the court system.60 These processes typically involve spe-

cialised issues that are strongly influenced by policy objectives. Decision makers

are often specialists in the particular field, or democratic bodies, supported by

specialized bureaucrats. A variety of procedures may be used, which may have

some characteristics in common with court process, although they tend to be lim-

ited in one or more of the characteristics that are considered fundamental to real

court procedures. This type of alternative to litigation is the result of the increas-

ing regulation of society. The issues typically arise because individual activity in

some way interferes with what is considered the public interest.61 That common

59 See Martin Shapiro and Alec Stone Sweet On Law, Politics, and Judicialisation (Oxford Uni-versity Press, Oxford, 2002) at 37: It is an old truism of public administration that shifts inorganisation and jurisdiction are never simply technical. They are almost invariably vehiclesfor policy change. The transfer of a particular service from one governmental agency to an-other inevitably alters the nature and direction of the service.

60 The procedural steps that are required before the matter can be brought before a general courtare often of such a prohibitive nature that this method of appeal is practically excluded.

61 A good example is the tort of nuisance, now often regulated by (mostly delegated) legislation.

Compare the classic judicial approach in St Helens Smelting Company v William Tipping[1865] 11 ER 1483; (1865) 11 HL Cas 642


24/50

24

interest may be very broadly defined in the empowering legislation, or even left

entirely to the determination of distributed lower-level authority.62

(b)Government support in lieu of civil litigationThe Accident Compensation legislation and organisation are perhaps the most

significant examples where a whole category of civil dispute is simply removed

from the courts and replaced by a bureaucratic apparatus that substitutes a Byzan-

tine set of rules and executive discretion for a potential defendant. The ACC sys-

tem provides an instance where policy objectives are directly implemented into

the very core of what would otherwise be a process where the states involvement

would be restricted to providing adjudicative infrastructure, as it is in the rest of

the world.63 It can be argued that an active litigation field is a better mechanism

to drive safety issues than a government department, although it of course requires

a suitable court infrastructure to achieve that.64

(c)State sponsored mediation servicesHere legislation creates a compulsory consensual process that must be traversed

before adjudicative structures become available. Processes in employment and

family disputes provide examples.65 These are not real alternatives to litigation,

but preliminary steps, aimed at providing the parties with an opportunity to avoid

the disadvantages of litigation. The strength of these programs is therefore in-

versely correlated with the weaknesses of the litigation system. In other words,

would parties opt for these compulsory processes if efficient methods of adjudica-

tive decision making would be available? The areas in which the government in-

62

See for an extensive and early description of the effect of increasing administrative power:Julius Stone Social Dimensions of Law and Justice (Stevens & Sons Ltd, London, 1966)Chapter 14, paras 16-25, in which review of administrative power is also considered in thelegislative context of administrative decision making p 713-714.

63 It is in that context interesting to note that the National government attempt at privatisation ofthe administrative organisation of the scheme was reversed by the next incoming Labour gov-ernment.

64 See for a discussion of the American tort liability transformation: James Robert Forcier Judi-cial excess : the political economy of the American legal system (University Press of Amer-ica, Lanham, Md., 1994) 43-51. And for a practical example of that process in operation,pages 133-135 litigating technological disputes, which demonstrates that litigation eventu-ally drives social and technical development, which arguably government bureaucracy willnever achieve. On the other hand, there are transaction costs that may inequitably effect con-

sumers in general, see p159.65 S10 Family Proceedings Act 1980, S159 Employments Relations Act 2000.


25/50

25

tervenes tend to be those in which high levels of social engineering are considered

desirable, and where apparently the courts are considered too unreliable because

of their independence, or too cumbersome as an effective instrument of policy

implementation.

(d)Specialised tribunalsNew Zealand has an abundance of specialised tribunals, most of them closely

connected with specialised departments that implement the policies out of which,

or under which, the disputes arise that are determined. Although most tribunals

operate in an adjudicative capacity, there may be more or less compulsory con-

sensual processes included in the various schemes under which they operate. An

example is the Tenancy Tribunal organisation, and its related mediation service.

(e)Specialised private adjudication services created by legislationAlthough strictly speaking these fall outside the government structure, these adju-

dication processes can only exist because of specific legislation. The format is

different from that of tribunals, which mostly operate under the government um-

brella, with officials paid for by government, using government infrastructure etc.

The distinction between dispute resolution services within or outside the govern-

ment structure is not always easy to make as hybrid forms exist. An example is

mediation in the family court, which is a compulsory process introduced by legis-

lation, but performed by private practitioners, paid for by the state. Another ex-

ample is adjudication under the Construction Contracts Act 2003, which provides

for a compulsory process, with procedures that are governed by legislation, per-

formed by a private practitioner paid by the parties, who may be selected by the

parties or by an authority appointed by the state for that purpose. This adjudica-

tor makes decisions that are directly enforceable in the courts. The jurisdiction

has no upper limit, and is wide enough to include charging orders over real estate.

(f)General (disputes) tribunalsThese form a semi-adjudicative alternative, which can only deal with a limited

range of issues and value in dispute. They operate a hybrid process, whereby the

referee, after hearing the parties, attempts to come to a consensual resolution, but


26/50


27/50

27

would suffer from being subjected to the court process. Arbitration provides an

alternative that is better suited the fast-paced interests of business. Large and so-

phisticated international organisations have sprung up that provide arbitration ser-

vices, and many high-calibre judges have left the bench to become arbitrators.

The success of arbitration may be measured from the absence of significant com-

mercial litigation in the courts. Appeal structures within arbitration agreements

are increasingly used, aimed at providing an alternative to the appeal process to

the High Court.70 While arbitration is a strictly adjudicative process with all the

procedural safeguards of litigation, backed up by recourse to the ordinary courts,

it lacks openness and public (or academic) scrutiny, there is little development of

precedent, and it is as expensive as litigation.

Given its advantages, especially for larger commercial disputants, arbitration pro-

vides for a niche that the courts cannot easily fill. This is not necessarily a posi-

tive development. For example, a consequence may be that the development of

the law is hampered by the absence of litigation at the commercial cutting edge.

Another example is that confidential resolution of dispute between large commer-

cial players may be to the detriment of third parties or societal interests, such as

customers, the state itself, and environmental interests.71 There may, in other

words, be political reasons to make court adjudication more or less competitive to

arbitration.

B. Historical alternatives

The scope of this paper does not allow discussion of the development of the civil

courts in any detail, but one comparison with ancient law may not be omitted,

which shows the lack of originality of contemporary systems of non-court adjudi-cation.

69 With the exception of inherent jurisdiction and powers of contempt.70 See David Williams "A proposal for a domestic arbitration appeals tribunal: AMINZ Arbitration

Appeals Tribunal" New Zealand Law Journal 75-76 and Sherwyn Williams "AMINZ arbitra-tion appeals, an introduction" "New Zealand Arbitration Day" seminar(2006)

71 For the sake of the argument, one could consider a dispute about price-fixing, a conflict about a

construction mistake that has lead to environmental damage, a conflict about liability betweeninsurers where both deny liability to the insured etc.


28/50

28

The southern part of England was a part of the Roman Empire from 45 until 410

A.D. when the Romans withdrew in a well-considered and formal manner.72 Al-

though Roman law was well established for a period of over 300 years, no trace of

it was left in England after the Saxon (and later Scandinavian) tribes dominated

the country in the following centuries.73 Later remnants of Roman law in the

English legal system must be traced back to influences after the Norman Con-

quest. The Roman process for civil dispute resolution was quite advanced; dispu-

tants would see a representative of the Preator, an elected official, responsible for

enforcing the law. They would choose a judge (judex) from a list (the album)

of qualified citizens. If they could not agree on a judge, one would be appointed

for them.74 The album did not include legally trained citizens, but would reflect

a broad cross-section of society, so that parties could choose a judge for his prac-

tical experience in the subject matter of the dispute, or simply because they trusted

him for other reasons. The judex would make a decision based on the facts as as-

certained by him, and the Preator would enforce the decision. When a question of

law arose the judge would consult with legal professionals (the jurists). These

would provide mostly written answers (the responsa), which later became the

basis for the famous Roman legal treatises.75 A judge could ask an opinion from

maximum three jurists, and could choose which legal opinion he preferred if they

disagreed. When the jurists agreed, however, the judge was bound to follow the

responsa and to decide accordingly.

As this example shows, law can be abstracted from dispute resolution in a more

rigorous way than is achieved in the common law system, and herein also lies the

root of the differences between common and civil law systems. The ancient Ro-

man system left adjudication to the parties, while it preserved a learned develop-

ment of the law.

72 By way of a letter from Emperor Honorius to the English civitates, telling them to look to theirown defence. See Daniel R Coquillette The Anglo-American legal heritage (Carolina Aca-demic Press, Durham, 1999)

73 This shows the frailty of an advanced legal system in comparison with the physical remains ofthe Roman culture in England, of which abundance is in existence to date.

74 Compare this with the provisions of the Arbitration Act 1996 or the Construction Contracts Act

2003, which are practically identical.75 Of which the codifications of Justianus are the best known.


29/50

29

C. Differences between common and civil law systems76

In the Roman civil system the decisions of the judges did not form a precedent,

but the promulgated law or the persuasiveness of the jurists opinions constituted

the law.77 The continental European states were also characterised by an earlier

separation of ecclesiastical and secular authority structures, following the Papal

Revolution in the twelfth century.78 The development of the abstract concept of

state (as opposed to the personal secular and spiritual authority of a monarch)

started earlier on the continent than it did in England.79 Continental States pro-

duced rules and laws which were applied through administrative government

structures. These developed in a hierarchical manner, using the organisation of

the Catholic Church as a prototype. Canonical law had much influence on the le-gal system, which integrated the academic professionalism that developed from

the re-discovery of the Roman (Justinian) treatises in the late eleventh century.

The inquisitive character of continental proceedings may be traced back to this

difference.

In England the early universities taught Roman law, but its use was restricted to

specific areas, and it was not directly applied in the common law courts. The pro-

fession of law developed from what we would now call trade associations and

not from an academic heritage. Although there were early common law treatises,

they lacked the sophistication of the Roman texts, and it was not until Blackstone

that attempts were made to systematically and comprehensively describe the

common law.

76 What follows is derived from Harold Berman, J Law and Revolution, The Formation of theWestern Legal Tradition (Harvard University Press, Cambridge Mass , London, 1983) and

Daniel R Coquillette The Anglo-American legal heritage (Carolina Academic Press, Durham,1999)77 As can be seen, the distinction between the approaches of common law and civil law systems

has its roots in whether the decisions of the judges or the opinions on the law by the jurists areconsidered to be law. The Roman civil system in many ways is a rather advanced hybridbetween both.

78 The creation of modern legal systems was, in the first instance, a response to a revolutionarychange within the church and in the relation of the church to the secular authorities. And herethe word revolutionary has all the modern connotations of class struggle and violence. In1075, after some twenty-five years of agitation and propaganda by the papal party, PopeGregory VII declared the political and legal supremacy of the papacy over the entire churchand the independence of the clergy from secular control. Harold Berman, JLaw and Revolu-tion, The Formation of the Western Legal Tradition (Harvard University Press, Cambridge

Mass , London, 1983) 87.79 Ibid (113).


30/50

30

By incorporating Roman law, civil law systems have a longer practical history. If

the adage that the law works itself pure is correct, civil systems are more ad-

vanced, simply because this purifying action has been at work for well over a

thousand years longer. This effect is demonstrated in both substantive and adjec-

tival law. Good examples where relatively recent common law restatements

now closely align to Roman law are commercial legislation, such as the Sale of

Goods Acts, principles of property law, torts, etc. As seen above, developing al-

ternatives to common law civil procedure also gravitate towards principles that

would not have surprised a citizen of Rome in the first century.

For the current topic, two important differences between common and civil law

systems emerge from this brief comparison, first the way law can be reformed bythe process of its application. This is an accepted phenomenon to a common law

jurist, but alien to his civil counterpart.

Secondly, the concept of state and state hierarchy in the application of law, which

is more pronounced in civil systems. Because of the inherent problems with the

separation of powers that may seem to result from such hierarchical structures,

civil jurisdictions tend to have written constitutions and special constitutional

courts. This structure is logical to balance powers, as a hierarchical court systemapplying law is responsive to legislative demands, while the constitutional review

function operates in the opposite direction.

D. The constitutional function of alternatives to litigation.

The alternatives to civil litigation cannot perform the constitutional function of the

courts. The tribunals involved lack the constitutional position, the decisions are

confidential or without precedent value, or are made under legislation that restricts

the scope of any evaluation of objectives against other social or legal principles.

Promoting alternatives to litigation is a powerful way by which executive and leg-

islative forces can reduce the possibility of critical analysis by an institution with

independent and constitutional powers. Redress against decisions made in alter-

native processes tends to be restricted to an investigation of jurisdiction and due

process. Even blatant errors of law can often escape scrutiny, either through di-


31/50

31

rect prohibition or practical limits on pursuing claims. Although it is undeniably

advantageous that mechanisms are available to efficiently bring an end to dispute,

it is argued that the lack of possible scrutiny carries the significant risk of uncon-

trolled executive and legislative rule making.


32/50

32

IV CONTEMPORARY DEVELOPMENTS IN CIVIL LITIGATIONA. A comparison with some other jurisdictions

Civil litigation in England and Wales has been fundamentally reformed following

the seminal Lord Woolf report Justice for all.80 The first of the three piers on

which the changes are built is the improvement of access to the courts by simpli-

fying procedure and providing information to (potential) litigants. Modern tech-

nology is used extensively. Procedures can be initiated and sometimes completed

online, and the use of the internet is continuously expanded, for instance in court

planning and the distribution of case specific information to parties and counsel.

Part of the effort is emphasis on ADR to resolve differences, although it is not

made compulsory. Severe cost awards will haunt a party who has failed to agree

with reasonable proposals to terminate a conflict. The new rules place a stringent

onus on parties to consider their case carefully in all its details before litigation is

started. This brings much of the costs of the process forward, thereby providing a

real incentive to resolve rather than litigate. A secondary effect is that solicitorsand counsel are deterred from inaction in the early stages of a case, as used to be

the commonly accepted procedure.81

The second pier is a revision of the legal aid process, which has made civil litiga-

tion available to a much larger fraction of society.

The third pier was the formal introduction of contingency fee arrangements,

which have the effect of providing impecunious parties, who have a realistic

claim, with high calibre legal representation.

The English legal system retains most civil matters within the actual court system;

it does not have the wide range of tribunals as in New Zealand and lacks ACC-

type legislation. Instead, specialised courts are created within the system, and the

80 Woolf(Lord)Access to Justice: Final Report to the Lord Chancellor on the Civil Justice Systemin England and Wales (HMSO, London, 1996) . And for a more detailed but concise descrip-

tion see Carlo Guarnieri and Patrizia Pederzoli The Power of Judges, A comparative study ofcourts and democracy (Oxford University Press, Oxford, 2003) 101.


33/50

33

pre-litigation rules and procedures are tailored to specific areas of dispute. The

English reforms have resulted in a strong decrease in the time it takes for matters

to be disposed of, less appeals from the Queens Bench and Chancery Divisions,

and a doubling of appeals from tribunals, which may show that real courts are a

preferred way of dealing with disputes by those involved.82 The English courts

have regained social significance, and are starting to increase their political rele-

vance, also as a result of the increased integration into the European legal struc-

tures.83

New South Wales has recently overhauled its system of civil procedure in all of

its courts by way of comprehensive and all-encompassing legislation. It follows

the essence of the English reforms, but has an increased focus on ADR, which canbe used as a compulsory mechanism. The legislation provides for certification of

ADR practitioners, and potentially gives arbitrators the jurisdiction of judges,

even including contempt powers.84

The United States is often seen as the pinnacle of excessive civil litigation, or

even as an example of judicial excess.85 If anything, the use of civil litigation re-

mains strong and the role of the state(s) is focused on making the system increas-

ingly efficient. Information technology is used on a wide scale, which in somestates goes as far as having all the documents filed in a case publicly available

online in information systems that also contain court planning, counsel involve-

ment, evidence depositions etc.

In these jurisdictions the role of the state in civil litigation is aimed at improving

the process, maintaining the courts constitutional role, and enhancing access to

the courts in various ways, most notably by the use of information technology.

81 I.e. drafting minimal pleadings, and focussing on interlocutory steps to refine and develop thesubstance of the case, which arguably leads to an escalation of issues.

82 United Kingdom Department for Constitutional Affairs Judicial Statistics Annual Report(2004)83 Carlo Guarnieri and Patrizia Pederzoli The Power of Judges, A comparative study of courts and

democracy (Oxford University Press, Oxford, 2003) 169.84 Civil Procedure Act 2005 (NSW)85 James Robert ForcierJudicial excess : the political economy of the American legal system (Uni-

versity Press of America, Lanham, Md., 1994) . Forcier argues that the appetite for litigationin the US has exceeded reasonable limits, and speaks of a transferable responsibility mythwhich is exacerbated by the pursuit of own interests by the legal industry and which leadsto an unacceptable deviation from the proper purposes of economic activity. (see 219-225)

His ultimate argument is for de-politicising the courts and reducing the chasm between theculture of law and popular culture (241).


34/50

34

By contrast, in New Zealand the Law Commission suggested far reaching struc-

tural and procedural changes to the court system, for all areas of law. The civil

changes focussed mainly on accessibility, the use of ADR and judicial oversight

of all tribunal activity.86 The proposals were firmly rejected by the government,

which suggested procedural improvement, primarily by way of bringing the or-

ganization of the court system under executive control.87 The push for increased

use of ADR was deferred by reference to a pending report, which eventually

proved to be of a sub-standard quality.88

In an attempt to streamline civil litigation the New Zealand Rules Committee is

currently reviewing procedure in the District Courts only.89 The District Court

rule system will introduce an improved system of case management, where judgesare given more powers to manage the litigation process, and where ADR becomes

compulsory, in the form of a judicial settlement conference, i.e. within the opera-

tion of the court system itself. Anecdotal evidence shows that the High Court is

reluctant to consider such further reaching rules. Although that is understandable

in the appellate jurisdiction, it is difficult to see why first-instance proceedings

could not integrate compulsory ADR attempts.

B. Conclusion

New Zealand seems to be on a different course from comparable jurisdictions.

The government statements in the response to the Law Commission report,90 leave

no doubt that this is a policy choice, and not a different pace in adjustment of the

legal system. The somewhat curious s3(2) of the Supreme Court Act 2003 under-

lines that proposition.

86 New Zealand Law Commission Delivering Justice for all, a vision for New Zealand Courts andTribunals, NZLC Report 85 (2004)

87 New Zealand Government Government response to Law Commission report on delivering jus-tice for all, October 2004 (2004)

88 Kay Saville-Smith and R Fraser Alternative dispute resolution : general civil cases / preparedfor the Ministry of Justice by K. Saville-Smith and R. Fraser (Ministry of Justice,, Wellington,N.Z., 2004) . This report is very poor in quality, both statistical and substantive.

89 Rules Sub-Committee to the New Zealand Court Rules Committee Consultation paper 23 Au-gust 2004 (2004), Rules Sub-Committee to the New Zealand Court Rules Committee Re-sponse of District Court Claims Sub-Committee on submissions on rules committee consulta-

tion paper issued 23 August 2004 (2005)90

New Zealand Government Government response to Law Commission report on delivering jus-tice for all, October 2004 (2004)


35/50

35

V A CONCEPTUAL FRAMEWORK FOR THEROLE OF THE STATE IN CIVIL LITIGATION

The strands developed above can now be drawn together to construct a framework

that describes the concepts role of the state and civil adjudication. That can-

not be completed without also considering the concept authority, which con-

nects the other two. Although the role of the state is broader than the provision of

adjudication services, the way it uses, develops, administers and implements law

are vital indicators in the analysis of state activity in this context. The following

framework uses parts of the comparative legal model developed by Mirjan Dam-

aska,91 and the empirical work of Shapiro and Sweet Stone,92 who describe an in-

creasingly political role of courts around the world.93

A. Adjudication

The concept of adjudication follows from the concept that rules, however devel-

oped, can be used to regulate behaviour within a society. This desire to r

Documents

The State's Role in Providing Courts to Adjudicate Civil Disputes