In order to understand what civil justice is and does, we need some information about what it doesn’t do and isn’t. My contention, a recurrent one in the literature, is that we rely too heavily on studies of formal institutions and their staffs as means of understanding how civil justice actually operates. I am not criticizing research on courts and lawyers per se -- indeed, I do work in this area myself -- which continues to be a valuable and important enterprise. But this research provides only part of the picture; an over-emphasis on lawyers and what they do results in a myopic, lawyer-centric view of what civil justice effectively is and actually does.
Qualitative research into disputing behavior and legal consciousness has offered us a broader view for many years. Survey research is beginning to catch up. A new generation of survey-based work returns to studying civil justice from the ground up, inquiring into normal people’s everyday experiences of potentially legal problems.
The new research improves on the old in a number of ways. I’ll pick just one:
The new survey instruments collect information on the life histories
of justiciable events and disputes that are not taken to lawyers or
courts, as well as those that are.
As any student of
civil legal needs or justiciable events knows, most such events never
reach any part of the formal justice system. By following up on what
happens with events that people do not respond to “legally,” new work
holds promise to provide general accounts, both causal and descriptive,
to answer such questions as:
How do people handle potentially legal problems that they don’t go to law for?
When and why do they choose nonlegal solutions, or choose to do nothing at all? What does this tell us about civil justice and the popular legitimacy of law?
When are nonlegal routes pursued consciously “in the shadow of the law” and when are they pursued without reference to law?
When are nonlegal solutions to justiciable problems better than law? When are people happier with nonlegal routes? When are these routes better by other standards – for example, when do they resolve problems more quickly, or cheaply, or effectively, or with less social cost?
* With support from the Nuffield Foundation:
Hazel Genn and colleagues’ Paths to Justice (1999)
Genn and Alan Paterson’s Paths to Justice Scotland (2001)
* From the Legal Services Research Centre:
Pascoe Pleasence and colleagues’
Causes of Action: Civil Law and Social Justice (now available in a second
* With support from the Ford Foundation:
Ethan Michelson’s work on disputing, including