Alternative Dispute Resolution Processes within the Framework of the World‐Wide Access‐to‐Justice Movement
| DOI | http://doi.org/10.1111/j.1468-2230.1993.tb02673.x |
| Published date | 01 May 1993 |
| Author | Mauro Cappelletti |
| Date | 01 May 1993 |
me
Modem
Law
Review
[Vol.
56
Alternative Dispute Resolution Processes within
the Framework
of
the World-Wide
Access-to-Justice Movement
Mauro Cappelletti”
I
shall start with a few words about the topic of this workshop. Its official title is
‘Dispute Resolution: Civil Justice and its Alternatives’. Alternative dispute resolution
(ADR) is usually given a strictly technical meaning, which refers to those devices
which are intended to solve disputes, mainly out
of
court, or by non-judicial devices.
This, however, is not the only meaning the conveners of this conference had in
mind. Quite properly, they made it clear that what they had in mind was to deal
more generally with those devices
-
whetherjudicial or not
-
that have emerged
as
alternatives to the ordinary or traditional types of procedures. Thus, class actions,
for instance, would be part of the topic they envisaged dealing with, as well as access
to justice generally, including access to information in the hands of potential litigants
(thus, discovery devices as developed, in particular, in the USA). I will follow,
in part at least, this broader approach, and will try to analyse the topic, within the
framework of the world-wide access to justice movement, indeed, as an important
feature of such a movement.
The access-to-justice movement has been, for several decades, a most important
manifestation of a new approach to both legal scholarship and legal reform in many
countries throughout the world. As a new approach to legal scholarship, ie, as a
‘theoretical movement,’ it created a new vision, repudiating the formalistic approach
long prevailing in much of the Western world, and especially in Europe. This
formalistic approach tended to identify the law with the ‘system of norms’ produced
by the state. This was, in my opinion, an over-simplification of the reality; law
and the legal system were seen exclusively in their normative aspect, whereas their
real-world components
-
subjects
,
institutions, processes and, more generally, their
societal context
-
were neglected. Legal realism was a first strong reaction against
such an approach. As it is well known, legal realism led to what was called ‘normative
skepticism’; with the awareness that the norms themselves, whether derived from
statutory or from case law, are expressed in language
-
words and symbols
-
they require a creative interpretation from their addressees. As was pointed out by
Oliver Wendell Holmes as early as
1899:
‘It is not true that in practice
. . .
a given
. . .
word has one meaning and no other. A word has several meanings, even in
the dictionary.
’2
This normative skepticism was taken to extremes, especially by some representa-
tives of the contemporary and indeed important school of thought called ‘Critical
-Legal Studies’; they have ascribed total ambiguity, indeterminacy, to legal rules
-
whether legislative or judicial. This new approach is often inspired by such modem
or, as they would like to consider themselves, ‘post-modern’ thinkers as Foucault,
Derrida and Lyotard: the proponents of ‘deconstruction’ in any kind of hermeneutics
*Stanford University and the University of Florence.
1
2
Opening Report
to
the W.G. Hart Legal Workshop on Dispute Resolution: Civil Justice and its
Alternatives (London: Institute of Advanced Legal Studies, 7-9 July 1992).
O.W. Holmes, ‘The Theory of Legal Interpretation’ (1899) 6 Harvard
L
Rev 365; also
in
Collected
Legal
Papers
(New York: Peter Smith, 1952), at 203.
282
0
The Modem Law Review Limited
1993
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