Volume 2, Issue 1

A conflict usually arises because one party wants to change things while the other party prefers to keep the status quo. The one who wants to change the status quo by the use of law has to take the role of the claimant and to overcome the well known barriers on his way to a success in court. Therefore advantages and disadvantages are to a great extent apportioned by the status quo. This article points out that the discussion on access to justice and success in court is to be widened by the question for the factors which form the status quo. Ten hypotheses are proposed which shall improve the interpretation of data gathered by judicial research.

Under a practical aspect legal orientation means prophesying "what the courts will do in fact". If this is uncertain, one may try to induce a precedent. In a system of law, where the doctrine of stare decisis is unknown, its binding influence upon future cases, provided by the ligitant, is yielded by judicial organization. The fact, that inferior courts conform to the precendent, points out the issue of a rule instead of a mere decision of a single case. Intentional "playing for rules", as it is called by Galanter, is a way of reducing legal uncertainty only for litigants being directly concerned with the outcome of similar future cases, and only for those, who are resourceful enough to surmount impediments, put by the rules of court, even if the described play is accepted by the judicial system.

Considerations concerning the improvement of consumer protection often aim at the facilitation of access to justice. Attempts to refer consumers increasingly to courts are promising only if consumers are able to succeed in courts, too. Empirical data from consumer claims show that only 18 % win in full extent while 64 % fail. These outcomes are due to the fact that the law does not protect the consumer effectively. As long as legal reforms cannot be carried through, changes for a compensatory consumer policy grow rather from the institutionalization of mediation than from litigation.

In the Federal Republic of Germany the situation of the trade unions with regard to the legal systems has started to change. This is all the more significant as labour relations in West Germany - particularly in a superficial comparison to other West European countries - are largely structured by law. Above and beyond any national and historical peculiarities this “legalization” is, however, an outcome of the basic functions of the trade unions; neither, therefore has it anything to do with the self-understanding of the political coalitions nor is it a thermometer of the integration or autonomy of the unions in a certain societal system. The refering of the trade unions to a certain legal system, such as that of the bourgeois society, does not mean that they have been bound to it in the past nor that they are limited to it in the present. This dialectical relation of the associations with law determines a number of structural and functional problems of a different type and with a different stress, which are reflected in the attitudes of the trade union members (“legalism”, “legal nihilism”). Any legal strategy of trade unions must bear this in mind just as much as the attempts of the social opponent to shape and/or to preserve the legal system in bis own interests. The West German trade unions are, however, becoming increasingly aware of the significance of law for the safeguarding of their basic functions and are beginning to develop an “instrumental relationship” to law as a concerted purpose of action.

The so called trade union legalism is the expression of a trade union practice based on social partnership and it therefore admits exceptions in cases where existing legal norms are not in accordance with this practice. Interest orientated trade union policy must try to break through the de-politicizing of law but not question law itself. "Politicization" means here the blending of legal norms with the concrete (working) interests of the dependent employees. This can be achieved by, amongst other things, the intensified use of the means "wage agreements", through the dialectics of legal and not legalized representation of interests as weil as via the bringing of dass action. Legal demands made on such a basis can take on, in particular, the forms of "rights which make action possible", i . e. of norms which secure social change against state intervention.

Collective interests legalized in order to use the bourgeois legal system will usually be transformed according to individualistic standards of problem perception and treatment inherent in procedural law. The 48.000 law suits, filed by the German Unions in order to change jurisdiction on lock-outs in 1978 demonstrate. The changes there are for dialectical transformation of individualistic legal forms to move towards more collectivity. The essay discusses concepts of collectivity before describing the different steps of the law suits from their preparation to their effects on legal ideology, procedural law and professional understatement of judges and labor lawyers.