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PATRICIA A. ADLER

PETER ADLER

COURT SYSTEMS AND LAW

Most sociological discussions of law begin with Weber’s definition in which a specific staff is charged with avenging norm violation or ensuring compliance (Economy and Society 1968, p. 34). Weber’s goal was to distinguish law from morality and convention, by which a whole community may act to impose sanctions. He also developed his now classic typology of formal legal systems (those limited only to legal as opposed to those legal systems he called ‘‘substantive,’’ based on religious, economic, or moral criteria) and rational

(those legal systems based on rules as opposed to those involving use of oracles, oaths, and ordeals, for example). Although he was careful to call these distinctions ‘‘ideal-types,’’ that caution has not stopped persons from offering specific examples that are actually mixed types, as in speaking of ‘‘khadi justice’’ (a term, unfortunately, used by

Weber himself) as a prime example of substantively irrational decision making in which a Moslem khadi sits under a palm tree and dispenses justice according to his personal feelings or inspiration. As Rosen (1989, ch. 1) shows, in actual cases he observed, the khadi does not exclude any evidence but relies on witnesses, notaries, documents, and any relevant evidence as well as testimony from interested parties. His goal, as in Islamic law generally, is to ‘‘put people back in the position of being able to negotiate their own permissible relationships . . .’’ (p. 17; see Nader 1969; Starr 1992). He follows a careful procedure, although the conduct of persons in his court may appear to Westerners to be more informal and more disorderly than that allowed in a typical Western court.

While anthropological studies of tribal societies have been shown to exhibit the whole panoply

of Weberian categories (cf. Gluckman 1954; Bohannan 1957, 1967; Howell 1954; Kuper and

Kuper 1965), even the classic moot (eg. Gibbs

1963; Gulliver 1969), while classifiable as substantively irrational since it subjects disputes to discussion by a whole village of involved or even merely curious onlookers, still follows definite procedures and is guided by a mediator or authorized persons. See also Stone (1979) on miners’ meetings in the gold rush Yukon; MacLachland (1974) on the tribunal of the Acordada in eighteenth-century Mexico; and the People’s Courts in postrevolutionary Russia (Feifer 1964). The goal of the moot, as Gibbs notes, is not solely legal but is at least what he calls therapeutic since the end sought is restoration of relationships and harmony. It turns out that goal is quite consonant with what we find in formally rational systems in the Western world. In any case, bases of all legal systems include: first, a reasonable certainty and predictability on which persons can depend, which, in practice, means no retroactive laws (as Fuller 1969 notes); second, fairness, which comes down to treating like cases alike; and third, justice should not only be done but be seen to be done, which means that there are no secret decisions, and decisions are in accord with generally agreed values, assuming they exist. These similarities are more important than the many variations in detail that can be found in different legal systems (cf. Pospisil 1958).

In what follows, we shall focus on the two main systems of law, common law and Civil law, which are found widely in much of the world. In so doing, we can give only passing reference to such systems as Islamic, Jewish, or Tibetan law, or to the many subtle differences found in tribal law. To further complicate matters, many national legal systems are blends of other systems, especially as the result of conquest (as is the case in Japan, which took over a German code but then had common-law features of public law grafted onto it after its occupation by the United States in the 1940s). In modern society, legal systems have become identi-

fied with the nation-state so that Canadian law differs from American law, as does Scotch from French law. Nevertheless, many can be said to share one of the two traditions we are considering.

Although the two systems have been converging in many respects, each is distinctive in outlook as well as in court organization and the kinds of legal careers likely to be found.

The Civil law is by far the older, going back at least to the Corpus Juris Civilis of the Emperor Justinian in the sixth century C. E., though some scholars would trace it back to the 12 Tables of Rome, said to have been put together in 450 B. C. E. This system is found throughout Western and now Eastern Europe, most of Central as well as South America, and in many other areas in Africa as well as Asia, plus the state of Louisiana (for an example see Williams vs. Employers Liability Assurance Corporation, Limited, 296 F.2d 569 (1961) U.S), the Canadian province of Quebec (Magnet 1980), and Scotland. The common law system is often dated from the Norman conquest of England in the eleventh century, when the Normans sought to impose a single system on the country, hence the name ‘‘common law.’’ Common law is now found not only in Great Britain but in those countries that made up the British Empire, such as Canada, Australia, New Zealand, Ireland, India, as well as the United States, and is influential in many countries of Africa and Asia. During colonialism, the common law countries preserved legal ties with England through Privy Council appeal, a process largely abolished or greatly attenuated today. Comparable appeals or ties to a single place were largely unknown to the civil law system. Whether the European Community will establish some form of tie remains to be seen.

THE BASIC COURT PARADIGM: THE

TRIADIC DILEMMA

When persons with a grievance decide to take action, they may: (1) act separately from each other as in direct attacks, seizure of property, etc. (see Black 1993, chs. 2, 5); (2) confront the other party; or (3) enlist the participation of a third party to help settle the dispute. Courts are preeminently concerned with this third option, what we call ‘‘the triadic dilemma.’’ Although courts deal with matters other than dispute settlement, such as law making (when judges make a new policy in decision making) as well, of course, as social control, they all employ a variant of a triad. Two persons or collectivities who have been unable to settle their differences or who have accused others of public harm have in all societies sought the help or guidance of a third party. The hope of each party is that the third party will side with them. Although each may think it fairest if the third party is neutral, in practice each hopes for a decision in his or

her favor. As Simmel (1902; Wolff 1950; Caplow

1968) shows, parties of three are inherently unstable, being liable to break down when two of the three form a coalition to defeat the third, a phenomenon well-known to parents of small children.

The third party may be simply a go-between who offers his services unasked in the interest of preserving or restoring good relations. Or he or she may, as Shapiro (1986, ch. 1) notes, take a more active role as a mediator, though only with the consent of the two disputing parties. While mediators may seek to preserve their neutrality, in fact he may, as in the case of real estate agents, make proposals of their own and may shade the decision by how they handle the facts each shares with them. Less consent from the disputants is involved when an arbitrator appears who may be persons agreed to by the parties or persons imposed by the state or the terms of a labor contract, for example. Arbitrators are under no obligation of coming up with a solution agreeable to both, but they will usually try for such a solution. The most coercive situation of all is the appearance of a judge, either as required by law or by decision of a governmental body. Here the parties may have no say at all either in his appointment or on the body of rules he applies, which may be the terms of a contract or the rules of law.

The dilemma in all these triadic situations is, as noted, preventing the breakdown into two against one. Whatever the outcome, those who lose are likely to feel the other two have somehow combined against them or that they were defeated from the start. In common law systems, the myth of the neutral judge is much celebrated, although since judges are political figures who owe their position to their political activities and may even have been rewarded with the judgeship for their services, it is not surprising the loser feels he never had a chance. In Civil law systems, there is no pretence of neutrality. The judge is a member of the civil service and hence a part of government itself. With the prosecutor in criminal cases being also a member of the administration, the dice are loaded as two against one. On the other hand, this does not mean the civil law system is less fair or just.

Indeed, because of the many protections offered to the accused in common law systems, one author commented that if he were guilty, he would rather be tried in the United States but if innocent,

then he would prefer the Civil law system because, for reasons we shall explain, judges have far less power than they do in the United States, and the system is far less adversarial. The Civil law judge assumes a more neutral role in searching for ‘‘truth,’’ rather than winners or losers. Attempts are made in both systems to produce an outcome that each will feel is ‘‘just.’’ Disputants may be asked to submit voluntarily, and if they do, they will be felt to have offered at least a modicum of consent to the outcome. Alternatively, attempts are made to avoid an all-or-none outcome. For example, in auto accident cases, one party may be felt to be 70 percent at fault and the other 30 percent, with a division of property in that proportion. In criminal situations, as in the United States, a plea bargain may enable the accused to walk away with a much lesser penalty than he or she might otherwise have suffered.

Actually, although plea bargaining is thought of as peculiar to criminal proceeding, negotiation is equally common in what are called ‘‘civil situations’’ (involving actions between two or more persons) where, as in criminal proceedings, an estimated 90 percent of cases are settled without trial. Such resort to negotiation places a special strain on the triadic model, particularly where the judge may himself participate, at least to the point of interviewing the accused in case of crime, or the parties in civil law, to provide assurance, at least in his own mind, that the accused or the plaintiff is aware of what is happening and has voluntarily entered into the ‘‘deal.’’ (Klein 1976). What one needs to understand is that the ubiquity of negotiation in American law is an organizational model. Lawyers, both defending and prosecuting, as well as lawyers in other courtroom situations become ‘‘repeat players’’ (Galanter 1974), who deal routinely with one another as well as with judges, clerks, and others in the court. Gradually, their work becomes routinized, with all focusing on getting things moving and coming out with cases settled. The goal of the system, then, becomes one of efficiently moving cases through, with participants seeing themselves, however unwittingly, as agents of the system. As that takes place, the triad can be seen as disappearing altogether and being replaced by a work group consisting of three or more players who have an interest in the outcome of the game (see Eisenstein and Jacob 1977; Jacob 1983).

We proceed to a detailed examination of the two systems, beginning with the common law system as most familiar to American readers. But that very familiarity is likely to blind us to the assumptions of the system that contrast so sharply with the equally hidden assumptions of the civil law system.

THE COMMON LAW SYSTEM

Although most persons are taken with the image of justice as a ‘‘blind lady’’ who acts on the basis of the facts and the inherent justice of the situation, as Jacob (1996) points out, courts in common law systems are ridden with policy assumptions, no more so in the United States than in other places. While courts go about their business of settling disputes and ensuring orderly procedures, their procedures send symbolic messages (see Nelken 1997; Sarat and Kearns 1988). This is especially the case for appellate courts where, in contrast to

European courts, judges are fond of wrapping up their decisions in opinions that are often more widely cited and influential than the decision itself. While conservatives are usually at pains to insist that judges confine themselves to being ‘‘strict constructionists,’’ their opinions resonate with what the legal scholar Dworkin (1977) calls ‘‘principles.’’ In the classic case of Riggs vs Palmer (115 N.Y. 506, 22 N.E. 188, 190, 1889), a presumptive heir on becoming alarmed at the possibility that his grandfather might change his will proceeded to eliminate that possibility by murdering him.

The grandson was properly tried, but defended his right to his inheritance. The court refused to award the inheritance to him, leading a dissenting judge in the case to ask for the court’s reasoning for this decision. After all, wrote the dissenter, the will was in order, was it not? There were the required witnesses, and there was no question that it was the intent of the testator that the young man should receive the bulk of the estate. With barely a reference to those issues, the majority awarded the bulk of the estate to the deceased’s daughters, who, under the will, were to receive only token amounts. In sum, the majority proceeded to rewrite the will in direct contravention of the deceased’s clearly expressed wishes. Although the majority hunted mightily for a source for their decision, turning variously to Aristotle, the Bible, an ancient case from Bologna, the Napoleonic

Code, Roman law and, finally, to a rather desperate assumption that no specific law was really

needed, anyhow. In the end they asserted that there is a ‘‘fundamental maxim’’ found in all ‘‘civilized countries,’’ namely:

No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime. (Riggs vs. Palmer 1889)

But the dissenter asked: What is the legal source of this ‘‘maxim?’’ It could not be found in any case previously decided, nor in any statute

(such is no longer the case in most jurisdictions). Although he agreed that the principle had intuitive appeal and might be found in most religious and moral systems, the law, at least Western secular law, is not simply a set of religious or moral principles. In the United States, the Constitution specifically erects a wall between church and state. Since that case, the principle, once announced by the court, has been cited and is indeed now a part of U. S. (and most other common law countries) law. But we must not go too far and declare that common law is simply a set of principles. Rather, the law is informed by policy assumptions, often hidden, but influential nonetheless. Although civil law is equally political, attempts are much stronger to hide the policy assumptions with an insistence that only a legislature can make law. All judges are supposed to do is apply it with as little innovation or interpretation as possible, let alone enunciating ‘‘principles.’’ The overall issue of how much politics and governmental policy is reflected in judicial decision making clearly affects the triadic system’s functioning to produce or not produce a sense of justice done and seen to be done. It is this feature that has been seized upon by Marxists and proponents of socialist law who see both common law and civil law as simply disguised systems whereby bourgeois ideologies are foisted on a powerless proletariat by capitalist exploiters, whether governmental or private. Their answer to the triadic dilemma is that there never can be neutral third parties, with the result that the only reality is endless strife between parties with temporary truces as victors seek to pick up the spoils.

In addition to taking policy positions, courts in common law systems can have massive effects on society by judicial review of legislative acts, a phenomenon severely limited in civil law systems as we shall note. Courts also provide a major

alternate route to persons who lack funds or who have been stymied by attempts to influence legislation. Persons can convert a private grievance into a public cause (Savat and Scheingold 1998) by, for example, deciding that severe burns from hot coffee served at McDonald’s requires court action to impose punitive damages as a warning to all companies serving the public that consumer safety must be a part of the design even in private firms.

So too, persons suffering from lung cancer who have been unable to get protective legislation against cigarette companies have turned to the courts, not simply for financial awards, but for vindication of what they feel are violations of their rights, as citizens, to life. When added up, the damage awards in such suits as well as those even in routine automobile accidents, violations of privacy, and tort and contractual disputes have never been totaled but constitute a huge shift in resources comparable to that involved in taxation. Nor have we touched on the part that lawyers’ fees play in such cases.

Finally, unlike judges in civil law jurisdictions who are part of the civil service from the start

(judges in France, for example, even go to special schools), judges especially in the United States, often come to their judgeships in mid-life, after serving in political positions, business or other areas of life. Jacob points out that:

. . . between 1963 and 1992, between 58 and 73 percent of federal appeals judges had a record of party activism before their appointments; among federal district judges, between 49 and 61 percent had such a background. (1996, p.19)

Yet such a background should not lead to cynicism that judges are necessarily biased or probig business or pro-party. Their background in ordinary society helps ensure a commitment to the importance of the rule of law, of procedural fairness, and of individual rights as a legitimate expectation of ordinary citizens.

A special characteristic of common law court is often the source of surprise and some envy on the part of those schooled in civil law systems.

American courts are often perceived as a jumble, with multiple urban, country, and state systems, so that what is actionable in Montana may not be actionable in Idaho and that if one is not happy with treatments in a state court, one can, with

some issues, move to a federal court. Such ‘‘forum shopping’’ seems a travesty to those accustomed to single systems. Yet the United States has more a single system than have many European countries. In those countries, there are often two sets of courts—ordinary courts that try the vast majority of civil cases, and a second set of administrative courts for those who have quarrels with the government or administration. In the United States most regular courts can handle any case that comes before them (though there are many specializations), and ultimately, the U. S. Supreme Court sits at the top as the final arbiter of law (considering constitutional questions especially important and above all). Nor, it should be added, are courts entirely separate systems. They are dependent for salary and other resources on what Congress and legislatures will provide, and they do not appoint their own numbers. The U. S. Supreme Court is indeed supreme on law, but it is in no sense the apex of a bureaucracy that can appoint and discipline members of lower courts. Further, it is basically passive, waiting for cases to be brought to it when there is a ‘‘case or controversy,’’ thus severely limiting its ability to act autonomously as a conscience of the nation. Often citizens gnash their teeth as the U. S. Supreme Court refuses to hear a case or decides it on the narrow issue that happens to have been presented to it. In that sense, the entire legal system is the property of the lawyers and what they choose to present to the courts, a situation vastly different from what we find in civil law systems.

The impact of lawyers in common law systems is greater than in civil law and indeed in any other system known to the world. Two major factors help account for lawyer dominance. One is the dependence on case law. Although legislation and statutes are basic sources of law, the necessity for interpretation and application to particular cases places enormous power in the hands of courts. If all legal systems require a strong sense of certainty, then that certainty is provided in common law systems by the majestic procession of cases, whether simply confirming one another, adding details, or overruling contradictory cases. To argue a case in an American court is to recite cases, and if there are enough of them, lawyers and judges feel the outcome can be considered settled. On the other hand, civil law systems depend on codes as enacted by revolutionary regimes, which codes are felt to

be the ultimate source of law, supplemented by legislation that is still felt to be a kind of supplement to the code. In a sense, the code is thought to settle the matter of certainty with little need for lawyers to interpret it. (This is less true in Germany where lawyers play a larger role.)

But in addition, especially in America, the model of the triad is felt to be basic. A court case consists of two adversaries who argue before a (one hopes, neutral and just) judge. The emphasis is on the adversarial process itself, a situation that produces not necessarily ‘‘truth’’ but rather a victory for one side. Lawyers play the key role, a matter that often leaves the outcome to the skill of the lawyers as much as to other features of the case. The judge is felt, if not to be neutral, at least to be passive, waiting for lawyers to present objections or evidence as they wish. If a lawyer chooses not to present a piece of evidence or simply sloppily forgets to do so, the judge cannot intervene to instruct the lawyer on what he has left out. In civil law systems, the judge, while a mere civil servant, has more power to direct the course of the trial, assuming what is often spoken of as an ‘‘inquisitorial style.’’ Given the major role that lawyers play in common law systems, it is important to give attention to how that role is played out. Since data are more complete, we shall use U.S. sources. However, comparable rates of increase for most categories are found in Canada and Great Britain (see

Galanter 1992). This is not meant to deny the differences, especially cultural variations, in those countries (see Atiyah and Summers 1987).

DOMINANCE OF LAWYERS IN COMMON

LAW SYSTEMS

In spite of their widespread influence and frequently very high income, lawyers in America are not a happy lot. They are not esteemed (a

Gallup Poll found that 46 percent of respondents rated lawyers ‘‘low’’ or ‘‘very low’’ in honesty and ethical standards, just barely above used-car salesmen). A survey by the California Bar Association in 1992 reported that 70 percent of those polled said they would choose another career if they could. Even more—75 percent—confessed that they would not want their children to become lawyers. Other studies report that lawyer job satisfaction is dropping, along with much higher levels

of alcoholism, drug abuse, and symptoms of depression than those found in the general population.

In spite of such indices of self-destruction, the number of lawyers in the United States has been rising, especially in the 1990s. From 374,000 in 1975, the number of lawyers will soon top one million as 31,000+ new lawyers are admitted to the bar every year. The field is proving attractive to minorities and women. From a low of only about 3 percent in 1971, female lawyers now make up over one-quarter of the total of practicing lawyers, and nearly one-half of students in entering law school classes. Female lawyers, as a group, are younger, with only 7 percent being over 50 compared to 30 percent of their male colleagues.

The location of practice has, however, not changed significantly. Private practice is dominant, even increasing, so that by 1991, 73 percent of lawyers were in private practice, with only 8.8 percent found in private industry, and 8.2 percent in government. But private practice has been undergoing profound changes. Solo practitioners have become scarcer as lawyers move increasingly to firms. The increase is mainly in larger firms

(those with at least eleven lawyers). In 1980, the very large firms (one hundred or more lawyers) accounted for only 7 percent of firm employment.

By 1991, that percent jumped to twenty-three. The large firms are the more common locus for men, with women being more likely to be found in government, legal aid, and in public defender’s offices. Some of these differences are declining as more women enter the profession and attain experience. On the other hand, more women, proportionally, are leaving the profession.

It is the large firms that attract more and more of the new lawyers who seek distinguished and lucrative careers. The largest—often called ‘‘mega firms’’—range from the Washington, D. C., firm of Williams & Connolly with 127 lawyers (sixty-one partners) producing revenues of $78 million, to true giants, such as the New York firm of Skadden, Arps, Slate, Meagher & Flom, with over 1,000 lawyers (236 partners) earning well over half-a- billion dollars in gross revenue. Some firms are even larger. They are not, of course, all under one roof but scattered in different cities as well as in foreign countries. Not only are these the places where the largest salaries are found, but they are also the platforms from which government and

other influential careers are launched, including leading positions on major committees and boards, as well as ambassadorships and presidencies. Twen- ty-five of the forty-one U. S. presidents have been lawyers, as well as half of U. S. senators and nearly half of all members of Congress. Lawyers are widely found in governorships and state legislatures as well. If these are not the most esteemed members of society, they certainly are among the most powerful and perhaps the most feared.

Although most persons in common law systems are aware of the presence of lawyers in those settings, it is not the image most have when they think of lawyers, and it is not the setting in which they see them in television drama. Instead, it is the lawyer, often solo or in a small firm, arguing for his or her client in a courtroom before a jury. The television image runs counter to the image of real lawyers in the news, leading to charges that the United States is a ‘‘litigious’’ society, in which large awards are given for burns suffered from spills of hot coffee, and there are suits against arrest for breast-feeding in public or for recovery of expenses on being stood up for a date. Though most such cases are thrown out immediately by disgusted judges or settled out of court for modest sums, critics person who may never hear of those outcomes continue to demand that we follow the lead of the nonlitigious Japanese, for example, who make do with very few lawyers. Actually, the number of lawyers in Japan is deliberately kept low by the governing elite to preserve a hierarchical social order. Nor are the Japanese devoid of a taste for litigation by any means (Haley 1978, 1991, ch. 5).

Nor has the United States had a ‘‘litigation explosion’’ nearly as great as some have claimed. There was only a moderate increase at the state level in the 1990s. It is true that there has been a large increase in the number of federal cases, not of the trivial sort noted above but rather of big businesses suing each other. The news of most of those ends up on the back pages of the Wall Street Journal. Other federal cases deal with asbestos and similar injuries as well as other suits by government (Galanter 1983; Galanter and Palay 1991). The reason it seems that the U.S. is experiencing a litigation explosion is that there is an increasing prominence of what have been called ‘‘mega’’ cases, in which large masses of lawyers and experts pursue a single case, sometimes for years on end. Although most involve business, a few involve

highly prominent individuals who have the resources and will to fight, intimidate, and otherwise bring up issues, subsidiary issues, and more of what Damaska (1978, p. 240) has called ‘‘companion litigation’’ where, along with the main case, separate suits are filed on discovery, on legal fees, on standing, and on other issues, which lengthen proceedings and often do little more than harass the other side or both sides into exhaustion. Such cases take the form of a ‘‘prolonged clinch and. . .

settlement’’ (Galanter 1983, p. 163) while rarely ever ending up in court. Meanwhile, such cases contribute to the image of the United States as a

‘‘litigious’’ society.

Yet, even granting all such cases, very few lawyers are involved in doing such things. Only a small minority of all dealings of U. S. lawyers ever result in a contested court action. Most legal practice takes place in offices for the benefit of business firms, and only a small minority deal with individual clients at all. Even in those cases, lawyers spend much of their time persuading suiteager clients not to go to court but to work out a settlement. Lawyers generally limit themselves to cases they think they can win. Often filing a case is symbolic of seriousness of intent, forcing a response from the other party; but the cases are settled, sometimes on the very eve of the court date or even as the trial, if there is one, is in process.

What all this amounts to is that the legal profession in the United States is ‘‘split.’’ Most lawyers quietly carry on the journeymen work of settling disputes and assisting persons to compromise so that they can carry on with their lives. A very, very few carry out the courtroom battles of the O. J. Simpson type that dominate the front pages of the nation’s newspapers. In such cases, lawyers are not seen as settling disputes but they are seen by many people as ‘‘getting people off,’’ leading to cynicism or to despising lawyers, even when or even because they win. Many cases take place outside the large law firm, but the reputation of lawyers created by the sensational cases affects the public image of all lawyers, wherever located.

One special feature of the split deserves attention; namely, income. Solo and small-firm lawyers carry out much of the work of helping persons set up partnerships, get a divorce or settlement from

an insurance company, draw up wills, and deal with persons who are in minor trouble with the law. On the other hand, work in a large law office is carried out by specialists who do the complex work of big business. Large businesses often make use of their own ‘‘in-house counsel’’ for the routine work of contracts, labor-management negotiation, and other repetitive legal activities. The company turns to outside law firms for the unusual, onceonly activity, such as mergers and acquisitions,

floating new securities, takeovers, and bankruptcies. Such activities call for the highest degree of expertise and knowledge, far beyond what a solo lawyer might be called upon to have. A major study of Chicago lawyers (Heinz and Laumann 1982) asked them to rank legal specialties in prestige. At the top were securities, tax, antitrust, patents, banking, and public utilities—the activities in which large law firms are involved. At the bottom were criminal defense and prosecution, personal injury, consumer debt, landlord-tenant, divorce, and fami- ly—the concerns of the solo and small-firm lawyer.

The income differentials between the two clusters are equally impressive. A major study reported salaries from large firms in Indianapolis and New

York to average around $300,000 per partner for the year, but many make much more. A New York law firm reported that each of its 121 lawyers (sixty-one equity partners) earned over $1 million.

Many others were not far behind. Lawyers in solo and small firms are not poor but make a good deal less. A 1995 survey reported that those lawyers earn somewhere between $75,000 and $100,000 a year, assuming they work a full two-thousand billable hours, which some do not. Associates (that is, nonpartners) start out, according to a 1996 study, from lows of $40,000 to as high as $70,000, but then rise with each year in the larger firms to $150,000 and up, plus bonuses. Stories of such incomes add little to offset the low esteem in which lawyers are held, especially since most persons who deal with lawyers find the lawyer wants money ‘‘up front’’ or on a retainer basis, unless a contingency arrangement is made, and often even then. (Note: The preceding section draws from the author’s paper, Gross 1998.)

TOO MANY LAWYERS?

A final issue that troubles many observers both in common law and civil law countries is

whether the United States, in particular, is ‘‘overlawyered.’’ Some even see this question as helping account for the so-called litigiousness of American law. Whatever the numbers, an increasing number of civil cases are settled either during or after trial.

Lawyers play their role in filing cases, but most of their work is done outside the court, which, of course, means lots of work for lawyers. Further, although cases may never reach court, as Mnookin and Kornhauser (1979) put it, much negotiation takes place in the ‘‘shadow of law.’’ That is, lawyers, well or poorly acquainted with actual court cases, call attention to what is ‘‘likely’’ to happen if they go to court, not to speak of the delay and expense. So law, or at least imagined law, plays a dominant role even when never specifically called into play (Ewick and Silbey 1998).

A useful table (table 1), if read with caution, is provided after careful research by Galanter (1983, p. 53).

Although we do not provide the sources, the results differ in dependability and the care with which they have been calculated. Still, the contrasts, however crude, are revealing. As to civil cases, the United States is seen to stand toward the middle, exceeded by Australia, New Zealand, and Canada, with many others being much lower. The

United States is at the lower end in judges, being exceeded by W. Germany, Belgium, Italy, and

Sweden. But when we come to lawyers, the United States far exceeds other countries, though Australia, New Zealand, Canada, and Spain are also richly supplied. As we note later in the discussion of civil law countries, many others not called ‘‘lawyers’’ do what the United States would call ‘‘law.’’ Such persons include notaries, government officials of many kinds, law clerks in private firms, and, in

Japan, the very high proportion of those who take the exam but are not allowed to practice (they do just about everything lawyers in the United States do except represent clients in court).

In making such international or intercultural comparisons, one should bear in mind differences in conceptions of what is worth disputing over and indeed what a dispute is in the first place. The studies by Felstiner, Abel, and Sarat (1980–81) suggest that a great many, perhaps most, injurious experiences are never perceived as such, but rather thought of as simply part of the risks of living. Some proportion of these are seen as violations of some right, but even many of those are simply ‘‘lumped,’’ that is, borne with equanimity or tolerated as not worth pursuing because of time or costs. A small proportion are, however, charged to a specific causal agent, and if a person or collectivity, then become what are called ‘‘grievances.’’ Some small proportion of those in turn, if voiced, turn into claims that, if rejected, become ‘‘disputes.’’ In turn, most (90 percent approximately)

disputes brought to lawyers are settled with varying degrees of satisfaction, lawyers often functioning to persuade the aggrieved that they should accept a settlement and move along with their lives. Whether persons are willing to pursue a grievance depends on technology and the ability to find a causal agent, as well as the existence of such legal devices as no-fault automobile insurance or divorce, which have the effect of diverting cases out of the legal system (see Kritzer, Bogart, and Vidmar 1991). Some countries, such as many on the European continent, have special labor tribunals and other systems that also divert cases out of what would, in the United States, be a legal case. The United States has fewer such alternative forums than is the case in the civil law world.

Jacob (1996, p. 52) speculates that the United

States is, perhaps, more a nation of strangers, leading to a greater willingness to pursue disputes than is the case in countries with a stronger sense of community. In general, it may be said that the closer persons are, whether as family, neighbors or co-religionists, the less likely are they to sue one another. On the other hand, that does not mean there are fewer conflicts in such groups. Rather, there are internal mechanisms for settling them within such groups.

A final point about common law systems that contrasts with civil law systems is the widespread availability of appeal, particularly within the judicial systems. Although much of this is perfunctory and may involve little more than an attempt to satisfy clients with the appeals court routinely affirming the lower court, still appeal is possible, much more so than in civil law countries. Appellate judges often lack experience and are not required to have experience as trial judges. In some cases, judges have discretion on whether to hear an appeal, leading to selection of cases that may be controversial or present novel points of law. The extreme is presented by the U. S. Supreme Court which, in the 1990s, has elected to consider around 100 out of some 5,000 cases presented to it, usually reserving to hear constitutional cases and conflicts between the states or foreign governments. It is difficult to assess the impact of appeals on the civil or criminal process.

Unlike trial judges, appeals judges do not merely decide cases but also give reasons. Such reasons are often examined by elite lawyers and are now

routinely discussed in the ‘‘legal’’ columns of popular magazines. It is not clear that the reasons affect policy in any obvious way. But the language of the court enters common discourse and affects thinking. School boards, church councils, Boy Scout boards, and even teachers’ decisions on classroom discipline become legalistic, with persons being given notice of charges, given chances to answer, and allowed to bring witnesses in their defense. In the United States, as in common law countries, the law seems to be everywhere (Galanter 1983), even if not formally invoked.

THE CIVIL LAW TRADITION

In drawing comparisons between the common law and civil law traditions, it is important not to dismiss variations as due simply to ‘‘historical experience’’ or to even vaguer influence of ‘‘culture.’’ History and culture are, of course, operative at all times, but we seek not simply a description but a sociological explanation. We must begin with the recognition of what Zweigert and Kotz (1987) call ‘‘functionalism.’’ By that they mean that all legal systems deal with generally similar problems as, say, medical systems do. Whether the society employs witchcraft, herbs, appeals to the gods, leeches, hot baths, or Western-style x-rays and surgery, they all deal with illnesses of the body. So, too, legal systems concern themselves with trouble presented by the fact that humans live in society and must deal with each other. In Chiangmai,

Thailand, for example, it is not surprising to find that three main classes of law suits appear: crimes as offenses against public order or the state, which are dealt with seriously by the courts; private wrongs, such as those arising from marital disputes, which are settled by negotiation; and those conflicts involving contracts and property rights, which are settled by careful examination of written and especially certified documents (Engel 1978). The details are indeed ‘‘cultural,’’ involving what Watson

(1977) speaks of as ‘‘legal transplants,’’ by which a society adopts some procedure borrowed from another society because it is accessible, written in a language the elite can read (such as Latin for Roman law), or more commonly simply the law of a conquering power as with England or India. One wastes one’s time if one looks for rational reasons or tries to account for such transplants on grounds of ‘‘efficiency,’’ although often people come to

believe in the superior efficiency of the system of law they happen to use.

On the other hand, a close examination of legal procedures can have much to teach about the assumptions taken for granted in the culture (Ross 1993; Nelken 1997). In a report on a personal experience in Indonesia, Lev (1972) tells of an accident in a hotel in which a toilet tank, affixed high up on a wall, fell, nearly hitting a friend. To Lev’s amazement, the hotel presented him and his friend with a bill for repairs. Lev refused, turning for help to a local judge, who was also a friend, for support for what Lev felt were his legal rights. The judge, while agreeing that those were indeed his legal rights, proposed that Lev make a token payment as evidence of ‘‘good will.’’ With reluctance,

Lev did so since compromise or peace was, the judge reminded him, after all, more important than vindication of rights. An even more obvious example is presented in a Mexican case in which the supreme court absolved a court for liability for the theft of money and jewels left in the care of the court pending settlement of the case. After all, said the court, Mexico is a poor country that cannot afford safe deposit boxes or secure storage places, but they do the best they can. The court then quotes what it clearly sees as a universal ‘‘principle of law,’’ ‘‘impossibilium nulla obligatio est,’’ which the court translates simply as ‘‘No one is obligated to do the impossible’’ (quoted in Merryman, Clark, and Haley 1994, p. 684). These considerations are spoken of by Glendon (1987) as the ‘‘hortatory’’ function of law in civil law systems. She contrasts that with a view that American and British law usually involve a command backed up by punishment. Yet, whatever the system, laws, whether selfconsciously doing so (as in civil law systems) or inadvertently (as in common law systems), always teach lessons as persons observe their operations.

Understanding of the civil law systems requires recognition that they come to us in two widely separated parts. The first is what is owed (and that is a great deal) to Roman law as codified in the sixth century under the Emperor Justinian as the Corpus Juris Civilis. This magnificent collection includes the law of persons, family, inheritance, property, contracts, and remedies, all of which the juriconsults (the legal experts) of the day saw as forming a unified body of law and which has been largely seen that way ever since. The influence was not simply on the Civil law system as such

but has had a strong effect on civil law (narrowly conceived) in common law countries as well. Basic principles the Roman jurists developed echo through the ages up to the present.

With the invasions of Rome that followed, much of this law fell into disuse or was united with the local laws of German tribes. However, canon law, as developed by the Catholic Church for its own uses, came to be widely adopted and grafted onto classic Roman law, influencing family law and civil procedure as well as much else, though not public law for the most part. Then, with the Renaissance, classic Justinian law was revived, especially in Bologna, where scholars gathered from all over Europe to study it, in Latin of course, and then spread it, where it came to be known as the jus commune. However, as it spread, it was inevitably influenced by local laws and customs that were often simply added to it in the interests of utility for solutions of local problems. A third development was commercial law, also from Italy, at about the time of Crusades, when there was much transport of goods and persons. The guilds and towns that developed this law were, for the most part, only tangentially influenced by Roman law since the focus was on rules merchants developed for their own use. Such rules spread even more widely than the jus commune up to the present day, where much of it can be found in admiralty law and related fields. It is quite clear, for example, that when two ships approach one another on the high seas there had better be a clear understanding as whether they both keep to the right or to the left, and that understanding must be clear whatever the differences in language, culture, or tradition. It is the nearest thing law offers to a truly international and intercultural system.

But there is more to modern civil law than a revival and Renaissance enrichment. The system was almost totally transformed by the ideas that gave birth to the political revolutions that began in the seventeenth century and are far from over at the present day. The revolutions were, of course, the American and French Revolutions, the military and ideological events associated with the unification of Italy and Germany, the coming new nations as the Turkish Empire disintegrated, the movements for freedom from Spanish and Portuguese domination in the Americas, as well as the chaos that followed the great wars of the nineteenth and twentieth centuries. While the word