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Grievances and Legitimacy: The Beginnings and End of Dispute Settlement

Published online by Cambridge University Press:  02 July 2024

Richard O. Lempert
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The study of dispute settlement within the sociology of law has, for the most part, been organized around institutionalized processes of dispute settlement, which typically has meant around dispute settlement institutions. Although some researchers—notably in anthropology—have provided detailed natural histories of disputes, including information about denouements, most dispute settlement research has focused on the immediate inputs into the institutions of dispute settlement, on processes of dispute settlement, and on dispute resolutions both as outcomes of processes and outputs of institutions. Inputs of interest have included, on the one hand, parties and their representatives and, on the other, the disputes parties bring. Process has been broadly defined to include actions that occur within dispute settlement institutions and also organized patterns of behavior, such as Eskimo song duels, that may not be institution bound. Outcomes and outputs are typically confounded and operationalized as the decisions of institutions, although we know that in some settings these decisions do not necessarily determine party outcome.

Type
Part Two-The Civil Litigation Research Project: A Dispute-Focused Approach
Information
Law & Society Review , Volume 15 , Issue 3-4: Special Issue on Dispute Processing and Civil Litigation , 1981 , pp. 707 - 715
Copyright
Copyright © 1981 The Law and Society Association.

References

1 Verdicts in small claims courts (Yngvesson and Hennessey, 1975) and orders to pay child support (Chambers, 1979) are well-known examples.

2 These definitions differ somewhat, although I am not sure they differ in important ways, from other definitions offered in this volume. In particular, I believe communicating a grievance to an alleged wrongdoer (claiming) is an important stage or transformation in the process of dispute settlement, but I believe that one who has made a claim that has been neither disputed nor satisfied retains the original grievance. Claiming is part of grievance processing. Both the claims and the grievance turn on the same normative perceptions. A dispute is a further stage in processing grievances which may in fact transform them. In a dispute the existence or integrity of the grievance is questioned because the essence of a dispute is that the opponent questions the normative basis of the grievance in whole or in part. Without a normative basis, a grievance collapses into a mere injury. If on the other hand the grievant prevails in the dispute and the claim is satisfied, the grievance again disappears. Of course, the fact that a grievance matures into a dispute does not mean the dispute will be satisfactorily settled. Therefore, while we may for some purposes wish to conceive of a dispute as a transformation of a grievance, this transformation does not mean that the grievance ceases to exist. It always makes sense to ask of the moving party in a dispute, “what is your grievance?” It also makes sense to ask at that stage “what is your dispute?” But that is a different and not a mutually exclusive question.

3 Note that when plaintiff's cause of action has no substance the assertion of a claim for its nuisance value is not a grievance; it is an attempt at theft.

4 My perspective implies disagreement with Miller and Sarat's operationalized definition of dispute. If I understand their paper correctly, all communicated grievances (claims) that did not result in an agreement being reached with little or no difficulty are considered disputes. I believe that the quality of the response to the claim, whether or not it is normatively based, and not the incidence or ease of grievant satisfaction, determines whether there is a dispute. If, for example, Miller and Sarat were to question organizations that were subjects of interviewee complaints, they might find that organizational officials in a position to deal with the grievances would often not report involvement in a dispute and, on occasion, would even be unaware of complaints.

5 This is a crucial point, for law in a system of legal domination is like law in any other system of domination in that if it is to remain viable its rules must, however rare the occasions, ultimately be backed by force. If force may be consistently and legitimately used, it may successfully coerce behavior which will come to be seen as legitimate (Ball et al., 1962). An example of the basic point is found in the attitudes which many take toward those who violate patently unjust laws to protest them or arguably just laws in an effort to ameliorate injustice. Such behavior is often approved of only if the violator is willing to accept the legally prescribed punishment. Thus during the Viet Nam war some resisters and many who shared their goals felt that protesters were morally obligated to violate laws openly and accept—except insofar as there was a legal defense—criminal punishment. Such a doctrine is, in effect, a prescription for removing from the fray those who might most effectively oppose governmental action. So long as the state proceeds through law, potential followers may accept as legitimate the removal of likely leaders from their midst.

6 What is legitimate depends to some extent on the legal system, since a law has a presumption of legitimacy if it is duly promulgated. However, what can be duly promulgated (legitimacy) ultimately depends on prevailing ideology. Thus, benefit of clergy which treated people who committed similar sins in decidedly unequal ways did not violate formal equality so long as the Church had the ideological resources to convince the populace that clerics were fundamentally different from laypeople who committed the same acts. Legal domination is complete when the prevailing ideology is that whatever is duly promulgated is legitimate, and the legal system's rules of recognition (Hart, 1961) provide the only test of due promulgation (Weber, 1954).

For references cited in this article, see p. 883.