Summary
Summary QLLM385-Week 2 – Adjudication and it’s function in disputes
- Module
- QLLM385
- Institution
- Queen Mary, University Of London (QMUL)
QLLM385-Week 2 – Adjudication and it’s function in disputes
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Week 2 – Adjudication and it’s function in disputes (Reading)Simon Roberts & Michael Palmer – Chapter 7 – Umpiring
Western legal theory draws a primary distinction between agents providing private arbitration
and state-sponsored courts. The association of the courts to the government distinguishes then
from umpiring processes which the choice of the intervener is left to the parties themselves.
Adjudications procedural features include submission of proofs and arguments to a third
party with authority to impose a binding outcome.
Government and Dispute institutions
Historically, those in power provided dispute institutions for their subjects. Nowadays, courts
present themselves as dispassionate neutrals playing a steering role between parties.
M. Shapiro – the origin of the judicial systems in many parts of the world is to be found in
conquest. They will often be identified with the political regime or with distant rather than
local authority. A major function of courts in many societies is a particular form of social
control, the recruiting of support for the regime.
The legitimation of third-party decision-making
Where two parties agree to put their dispute to a ‘neutral stranger’ for decision, the problem
of legitimation does not really arise as their agreement confers legitimacy on the chosen
process.
The primary legitimacy claim of the arbitrator lies in consent.
The authority of the courts to intervene is founded in their incorporation in the official
hierarchy. The doctrine of ‘separation of powers’ does not represent a repudiation of the
courts’ status as part of the apparatus of the nation state. Provision may be made for appellate
and similar processes that give the losing party access to an alternative outcome.
Lawyers play an important role in promoting acceptance of courts as authoritative third-party
decision-makers. They also promote the legitimacy of the adversarial system itself.
Fuller – (i) the slow unfolding of a case and the presentation of evidence and arguments and
challenges made by the lawyer on behalf of his client encourages the judge to reach his
decision in a reasoned and deliberate manner, (ii) lawyers also enable the judge to maintain
the role of neutral umpire.
Judicial appointment represents the ultimate career stage of the successful barrister in the
common law system.
M Shapiro – the availability of appeal allows the loser to accept his loss without having to
acknowledge it publicly. Appeal is also a mechanism providing an independent flow of
information to the top on the field performance of administrative subordinates. The
preservation of appeal to the chief-king-emperor-capital is a device for keeping the strings of
legitimacy tied directly between the ruled and the person of the ruler or the highest
institutions of government.
, M R Damaska – where review of decisions is routine, it is also normal to postpone
enforcement of the original decision until the highest authority has spoken. The importance of
quality control explains why a regular and comprehensive system of appeals is typically
regarded in hierarchical judicial organisation as an essential guarantee of faire and order
administrative justice and ‘due process’.
The role of Courts
Courts have roles in the cognitive and normative domains, constituting, keeping in place and
justifying a particular view of how the social world is, and ought to be. Courts also played
both a symbolic and a substantive role as expressions of the metropolitan power in the late
19th century European colonial expansion. In making decisions in accordance with ‘rules, the
courts keep the normative repertoire under constant review and revision.
The centrality of adjudication is reasserted by presenting judgement as the means through
which the core repertoire of norms in society is publicised and refurbished.
In the developing world, there is a notion that governments should provide meaningful ‘rule
of law’ which should give a central place to an independent judiciary where accessible and
efficient courts apply the law in a fair and predictable manner.
By conceptualising their handling of disputes from the outset as ‘litigation’, lawyers aim to
settle disputes before getting to the judgment stage.
R Abel – it is doubtful whether the imposition of western courts in Africa was motivated by
conscious purpose other than the desire of colonial rulers to assert their belief in the
superiority of metropolitan institutions. The availability of modern courts undermines tribal
dispute processing elsewhere in society.
M Shapiro – appeal is a key mechanism in injecting centralised social control into the conflict
resolution activities of courts.
Boaventura de Sousa Santos – the rule of law is quintessential in development. The law can
be a proactive instrument to promote change.
The heterogeneity of court practice
In civil systems, the courts have an active, inquisitorial role under which much of the burden
of preparation and inquiry falls upon the court. Whereas in common law systems, the courts
remain as a backdrop while parties prepare for an adversarial trial at their own pace.
Courts in England nowadays present themselves not just as agencies offering judgement but
also as sponsors of negotiated agreement.
M Shapiro – most judicial systems retain strong elements of mediation. Money damages are
mediatory because they allow the loser to substitute a money payment for the performance of
some action which he doesn’t want or to accept retribution for an action like loss of an arm.
Contemporary transformation in the common law world
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