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Who Wants Informal Courts? Paradoxical Evidence from a Yugoslav Attempt to Create Workers' Courts for Labor Cases

Published online by Cambridge University Press:  20 November 2018

Robert M. Hayden
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Abstract

The comrades' courts of the East European socialist countries are considered by those who favor alternative means of dispute resolution to be admirable examples of informal courts in modern industrial societies. However, these courts have not been extensively investigated. This article presents the results of an intensive observational study of one kind of socialist alternative court, the Yugoslav Courts of Associated Labor, comparing them with an ideal model of informal courts and with the available data on comrades' courts in other East European socialist countries. We find that, in contrast with the latter, the Yugoslav courts are indeed workers' courts, in the sense that they are used by workers—over 90% of their cases are brought by individual workers. On the other hand, they are not workers' courts in the sense of being controlled by workers—they are instead dominated by legal professionals. We conclude that these Yugoslav courts are attractive to individual workers precisely because they are not informal, social courts, but rather are independent legal agencies from which workers may receive unprejudiced decisions and substantial remedies.

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American Bar Foundation Research Journal , Volume 10 , Issue 2 , Spring 1985 , pp. 293 - 326
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Copyright © American Bar Foundation, 1985 

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References

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44 Constitution, pt. 2, chs. 1, 2.Google Scholar

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111 The dominance of the president of the bench in the CAL mirrors the practice I observed in the regular civil courts, where judges sit in benches of one professional judge and two “jurors [porotnici],” or temporary lay judges. The latter were never addressed as “judge,” and very rarely spoke in the discussion of cases. The dominance of professional judges over lay judges may be common in the civil law systems of continental Europe. It has been observed in empirical studies of the regular courts in Hungary (K. Kulcsár, People's Assessors in the Courts, (Budapest: Akadémia Kiadó, 1982)) and in the labor courts and regular courts in West Germany. See, respectively, E. Blankenburg, R. Rogowski, & S. Schönholz, Phenomena of Legalization: Observations in a German Labour Court, 1978 Eur. Y.B. L. & Soc. 33; and J. Richert, West German Lay Judges: Recruitment and Representativeness (Tampa: University Presses of Florida, 1983).Google Scholar

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134 The importance of this independence became apparent in 1982, when an attempt was made to revise the federal law on CALs in such a way as to put the basic CALs within factories. This proposal was fought by the Federal Labor Union, the lawyers' associations, and others, who drew on a saying from Serbia's 500 years under Turkish rule to compare the proposed CALs with kadi justice: “kadija te tuži, kadija ti sudi [the kadi accuses and the kadi judges].” See NIN (Yugoslav weekly news magazine), Apr. 4, 1982, at 23. The proposed reform was defeated. See Hayden, supra note 107.Google Scholar

135 See, e.g., art. 1 of the Soviet Statute on Comrades' Courts, 3 Rev. Socialist L. 322 (1977).Google Scholar

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137 Benoit, J., Analysis of Dispute Resolution Centers (paper presented at the annual meeting of the Law & Society Association, Boston, June 1984). This problem had been noted in the earliest evaluations of experimental alternative dispute institutions in the United States; cf. R. Cook et al., Neighborhood Justice Centers Field Test: Final Evaluation Report 4 (Washington, D.C.: Department of Justice, 1980).Google Scholar

138 F. DuBow (oral presentation on the Community Boards Program, American Bar Foundation, Chicago, Jan. 1985).Google Scholar

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