Governance of Dispute in Social Context of Law
In a global context, society today comprises of a mixture of culture and community, some geographies are diasporic cosmopolitan, some semi-globalized and some have managed to retain their historic culture. Least dispersed communities and geographical culture around the globe have their distinct characteristics and features, irrespective of state dominion, they all naturally exist in some sense of social… Read More »
In a global context, society today comprises of a mixture of culture and community, some geographies are diasporic cosmopolitan, some semi-globalized and some have managed to retain their historic culture. Least dispersed communities and geographical culture around the globe have their distinct characteristics and features, irrespective of state dominion, they all naturally exist in some sense of social order.
This social order is an evolved and cumulative expression of older generations which forms the culture of a particular society. Order is attained by minimizing friction amongst the members of a cultural society or group. This friction may be termed as a dispute in some vague context for which different cultures have their own variations of methods to put such friction to an end. Many disputes may be resolved within the community, where some may involve interference of a state-like institution.
On the outset, a legal mind leads us to an innocent and naïve presumption that disputes feature within the realm of institution governed societies, where state settlement agencies resolve all local disputes, maintaining peace and harmony. We miss to detail the intricate aspects of disputes: the minute friction that exists in day to day activity; and not always do individuals reach for an institutionalized method of dispute resolution.
Strathern states that societies do not just exhibit structure but also sustain themselves as social order. The order is achieved by the formulation of norms; where Aubert describes norms as rule of behaviour. Such rules of behaviour could be imposed by state machinery as law to govern a society or be self-imposed as a culture sometimes referred to as customary law.
Eventually, as Kidder suggests, the role of law or regulation in society is to provide an arena for individuals to promote their respective interests. Dispute settlement procedures have an interest in the regulation of social life as to mitigate conflict that may arise when interests of individuals collide. Hence, a system of norms are put in place to prescribe behavioural patterns with the aim to maintain social order. These set of norms even extend to the governance of disputes as they form an integral part of the process mechanism through which the social order is maintained.
A very strict interpretation of a set of norms would be termed as law, which in functional meaning would be regulation by a state-based institution. Regardless of society being a state-governed society or self-regulated culture people take to a system of norms to govern disputes. The system of norms in a stateless order could be a customary practice in contrast to procedural regulations governing a state devised judicial institution for dispute resolution.
The acceptable standards of norms shall invariably differ from one society to another but social order demands considerable essence of mutually acceptable dispute mechanism within that culture, which may seem imposed in a state-centred rule. In fact, these norms are reflective of the nature of society; where each society admires different standards of acceptable behaviour. Where the behaviour of an individual turns inconsistent with the observed norms there arises a conflict which then is resolved by a dispute redressal mechanism as practised in a society.
Roberts emphasises on the fact that the early outlook of anthropologists on order in society was primarily featured around the institutions and processes that governed individuals in their relevant social setting. In presumption, aspects of social behaviour and interaction amongst individuals were the outcome of the governing institution. If disputes arose, signified as a temporary malfunction of the institution itself, the settlement mechanism of the institution would be put to force to re-establish the rule of the institution. Until the mid-twentieth century, social-thinkers like Durkheim and Radcliffe-Brown placed heavy reliance on law and legal theory while studying social philosophy.
Malinowski’s work in the early twentieth century set the ground for studies that concentrated on human behaviour and self-governed relationships than by rules governing society. Social order, following from inevitable frictional disputes, was studied to be an outcome of self-accommodation and adjustment between individuals which was a normative functionality of social norm. Thus, the idea of social order being conceivable where there is a central governing system stood challenged. Now the focus area was the relationship between the state and partially autonomous local groups.
Contemporary results demonstrate that rulers have indefinitely pressed to act as a judge over local disputes and in parallel we observed situations where people are seeking to either exploit or avoid state settlement agencies. Hence, all societal disputes are not referred to as the settlement mechanism offered by the state; many informal and self-governance models are functional in society that maintains social order. In such light, it is important to understand, study and explore the social structure and processes adopted by individuals, to answer when people approach institutional systems to govern disputes. Even when institutional systems are not approached cultures may have self-tailored norms that assist and govern dispute resolution, restoring social order.
Under the ‘rule-centred’ approach a dispute is any breach of an institution formed regulation or law, per se. There is an ignorance of the fact that disputes in the context of social order is more general in nature and may not always come in conflict with the rule of law. They are a normal and inevitable reality of societal function as individuals in a social setting will generate friction as people promote their respective social objectives which occasionally, if not often, comes in conflict with the other.
Figuratively, empirical studies identify the variation of friction between individuals that exist in different societies showing the sharp contrast in culture between jurisdictions. Few societies could be naturally subtle and soft-spoken whereas in another loud and aggressive behaviour could be an acceptable interaction. Bearing this in mind, Roberts’ classification of disputes becomes relevant to mention as different kinds of disputes would have their respective resolution mechanism.
- Firstly, disputes between parties in the relationship of relative equality;
- Secondly, disputes which cross lines of stratification, like between an employer and an employee,
- Thirdly, disputes arising out of a ruler’s effort to govern directly involving the state or its agents.
Roberts expresses in detail various settlement processes by which disputes are approached to retain social discipline. Many cultures resort to fighting or talking or a combination of both to resolve differences between individuals or groups; which significantly varies in the context of the surrounding environment and circumstances to which that culture belongs. This aspect is true for both a central-ruled society and a stateless culture. People tend to engage in bilateral negotiations where essentially the contesting parties are placed in an equalitarian setup. Such negotiations are purely conducted by the parties with no foreign interference of a third party or a state.
The cultural standards and practices are utilized to reach a solution, sometimes amicable. Upon failure of bilateral negotiations or naturally in certain cultures individuals resort to the process of appointing a mediator. A third party that does not determine the outcome of the dispute resolution process but merely facilitates communication between the parties, so that the dispute could be put to rest. The process of mediation or arbitration between the parties must not always be institutional or state-driven, but could merely arise out of a practice of a particular culture. It even applies to stateless groups where they might call upon a higher authority (cultural/social stature) to mediate the dispute. Often in such groups where mediation is not a natural process of dispute governance, such mediation could turn out to be a decision making adjudication than mediation.
Many cultures have an institutionalized approach towards dispute settlement, where they prefer the appointment of a third person as an umpire or a judge, who dictates his decision irrespective of the common consensus of the outcome between the parties. The appointment of the adjudicating third person could be cultural practice (even applicable to stateless societies) or the choice of the parties to use state infrastructure to govern their dispute. Individuals subjecting themselves to more complex and stringent systems of norms of dispute governance, in certain cases, is proportional to the disbalance of power between the disputants. Each society has numerous factors that decide the process and structure of dispute resolution; where within the culture different paths could be adopted for different quarrels, in intensity or nature.
The governance and settlement of dispute is essentially subject to the specific surroundings of the disputants. Different cultural and ethnic societies may resort to different mechanisms of dispute resolution; they may be self-governed or state governed. Even the self-governed dispute settlement process may have systems and norms in place naturally as a matter of practice; else many cultures continue to settle them with nomadic methods such as by aggressive warfare. The concluding result for each party to the dispute is to secure their own interest, returning to idyllic harmony of that respective culture.
Clanchy using Leges Henrici Primi interestingly places settlement of disputes in the medieval human relations as a choice between lufu (love) and lagu (law); indeed in those times law was closely attached to religion. A wise person is said to resort to love and friendship, where others may choose the rule of law.
He explains that where disputants share a bond and are dependent on each other, love prevails. The dispute was settled by an agreement without an institutional stamp and was upheld by public undertakings before witnesses and social pressure. It is in the absence of a bond between the disputants, parties in litigations had to yield to a compromise; where love could have been the contentment. The importance given to love and friendship could be due to the fact of statelessness in the middle ages and that the religious empathy to the settlement made it more powerful than the law. But this does not mean that love was better than law; a settlement in criminal matters like bribery would not yield a better solution to the interest of the prosecutor.
Strong rulers with strict law enforcement and order in society led to the assumption that disputes were best resolved by the ruler than negotiated settlements.
On the contrary, corrupt officers and judges of a state-ruled society supported love to be a far greater and effective redress to a dispute. Hence, the ‘state-centred’ and ‘processual’ system of dispute governance are distinctive processes but highly circumstantial, with the possibility of a symbiotic existence.
A system of norms to govern disputes is omnipresent and is a fundamental requirement to ensure social order and its governance. It was generated so that under circumstances of clash of interest of individuals the dispute could be put to an end. People come in friction in their day to day life, some are observed as disputes and some are ignored. Further, few frictions may be noticed as grave disputes and remaining not so serious. In all such situations, a person may require redress and choose to raise a dispute and thus will resort to an available system of norms primitive to his society or culture.
Contributed by Devaang Savla, University of Oxford