Book Review: Empirical Theories about Courts
| Published date | 01 September 1984 |
| Author | Roman Tomasic |
| Date | 01 September 1984 |
| DOI | 10.1177/000486588401700308 |
| Subject Matter | Book Reviews |
BOOK
REVIEWS 183
Empirical Theories about Courts. Edited by Keith 0Boyum and Lynn
Mather
New
York, Longman Inc (1983) xi, 284 pp.
Court research has become abooming research industry over
the
past two
decades, particularly within the United States. Yet, attempts to systematically chart
its theoretical directions, problems and accomplishments are few and far between.
It is for this reason that this important volume is especially welcome.
The
appearance of this collection in Longman's new Professional Studies in Law
and
Public Policy series has come about through the unusual course, for a theoretical
work at least, of a research programme sponsored by the US Government's
National Institute of Justice. It is most reassuring to see government agencies
genuinely concerned to encourage the development of theory and explanatory
generalizations regarding legal institutions. We will probably have long to wait for
signs of such intellectual maturity to emerge in Australian governmental circles, so
that this volume should be of all the more interest to us.
The
nine chapters are written by some of the very best court researchers currently
working in the United States. Iespecially liked the pieces by Lawrence Friedman,
Marc Galanter and
Herbert
Jacob, although those by Donald Black and M P
Baumgartner, Samuel Krislov and Malcolm Feeley and Mark Lazerson, amongst
others, were also important. The collection is divided into three parts which
respectively compare courts over space and time, look at the work that courts do
and finally the influence of organizational factors on how courts do their work. It
is
not
possible to do any more than to briefly raise some of the key themes found
here. Acentral issue cross-cutting all these parts is a concern with what exactly it
is that courts are, anecessary first step in the construction of any empirical theories.
As Krislov points out, there are versions of both nominalist and essentialist
definition of courts. He himself adopts a"modified essentialist" approach,
assuming that the term at least has a core meaning. In contrast, Lawrence Friedman
adopts anominalist definitive pointing to the enormous variety of institutions which
we have come to describe as courts, so that courts can best be understood, he
suggests, by reference to the history of their rivals, such as the use of arbitration.
For
other
contributors, however, such as Black and Baumgartner, the idea of the
court seems almost irrelevant, so that they concentrate instead upon identifying the
range of third parties who are involved in supporting disputants and settling their
disputes.
In looking at courts over time Friedman takes up a theme which is pursued in
other
contributions when he tells us that as organizations, courts have become
more
complex having to respond to an increasingly complex environment. However,
whilst the total volume of law in society has increased, he suggests that the
"
...
relative position of courts may have actually diminished" (p 47). This is seen
to be related to the widely held view that courts do
"a
poor
job",
which has led to
the somewhat romantic contemporary enthusiasm for tribal or village courts (p 14).
In the subsequent chapter, Barbara Yngvesson and Lynn Mather demolish the myth
found in earlier anthropological studies that dispute resolution in tribal societies was
based upon consensus and compromise (pp 55-7). There seems to have been much
more coercion than is generally realized. Paradoxically, however, Friedman
observes that the "layman is in full retreat in modern law" (p 37), despite
the
current enthusiasm for informalism, even in the highest courts. This is explained by
the fact that informal practices such as plea bargaining are in effect
"natural"
consequences of increasing professionalization (p 38). Routinization of court
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