Volume 4, Issue 2

“Informalism” is one of the marks of increasing differentiation of judicial procedures in Civil as well as Common Law cultures. It does not, however, reduce the amount of formal proceedings, but rather serves to increase the scope of conflicts before the courts into areas formerly not regulated by the judiciary. This leads to a discussion of the adequacy of judicial procedures to handle varying types of conflicts according to their social contingencies, to the varying intentions of the parties and with respect to the goal of achieving legitimacy for its decisions.

This article attempts to draw together into a coherent descriptive theory a number of ideas which have been developed in recent writing on the ways in which the parties to a conflict interact with each other and with the normative and institutional structures available to them (“litigation behavior”). A review of the literature leads to the formulation of a number of minimum requirements which any such theory must satisfy; among other things, the concept of a “case” as the unit of analysis of such a theory is shown to be radically inadequate, and the necessity of studying litigation behavior in a context conceived of as legally pluralistic is emphasized – the article makes, in this latter connection, a special effort to integrate the anthropological with the sociological tradition in the study of litigation. Next, it is argued that the unit of analysis of litigation theory should be “normative claims” (rather, for example, than “conflict”), but that the “baseline” in terms of which the emergence and progress of such claims should be measured must be sought not, as is generally the case in the litigation literature, simply in 100 % of the unit of analysis itself (since the occurence of a “claim” is itself a problematic event), but rather in something which is not itself subject to the influence of the very same variables which are associated with the progress of litigation: “relationships” of the relevant sort are suggested as the appropriate baseline for litigation research. There follows a distinguishing of three aspects of an overall theory – litigation structure, litigation system output, and litigation process. After a few Observations concerning the first two, the remainder of the article is devoted to litigation process. Existing more or less implicit maps of litigation careers are examined and found wanting; an alternative map is proposed which (as required if one takes account of the legally pluralistic character of litigation) locates litigation in the context of the various “semi-autonomous social fields” which constitute society. The moments of actor-choice identified by such a map are associated with three groups of factors: characteristics of litigation structure, of the actors, and of their relationships. In particular, the last of these is extensively discussed. The article concludes with some discussion of the weak points in the litigation literature as revealed by an attempt to construct a coherent theory, and a recapitulation of the main themes of the article.

Court files of divorce proceedings according to the new divorce law in the F.R.G. were analyzed statistically. The results indicate that most divorces are uncontested, and granted after one year of separation. The alternative provisions of „contested divorces“ figure rarely as grounds of divorce. The legally intended liberalization of the permitted grounds for divorce is enhanced by actual court practice. In the majority of the cases, divorce consequences (child related and economic consequences) are proceeded jointly. However, the legally possible balance of the economic consequences of divorce is rarely achieved, since the parties declare matters as disposed of, or waive their claims in the majority of cases. It is suggested that the divorce procedure is not only determined by formal law but by the specific professional orientations of lawyers and judges handling the cases.

Analyzing case files from German county courts concerning tort claims in the result of traffic accidents, some general hypotheses in the sociology of law are tested. It is shown that a theoretical foundation of the sociology of law, as far as it is concerned with the judicial processing of every day conflicts, will need differentiating approaches in order to exceed the theoretical deficits of descriptive cross cut surveys. With the modes of compensation claims as an example, the structure of interaction among the parties and specific aspects of German tort regulation law are analyzed as determinants for the results of the judicial processing of those claims. The rising spreading of legal cost insurances is thereby conceptualized as one mode of reaction to the specific structure of party interaction. Furthermore, the partial failure of a reform project, the reorganization of German dunning procedure, is identified as a reason for rising case loads as well as for some particular aspects of the judicial outcome.

The following article contains a partial evaluation of 113 lawsuits concerning conflicts that had arisen from rent contracts. All cases were conducted 1979 in Bochum. Their analysis was part of a research project carried out by Prof. Dr. Klaus F. Röhl of the Ruhr-Universität Bochum. After describing the characteristics of this kind of lawsuits it is tried to put forward and demonstrate empirically the social function. Considering the background of impase power of landlords and tenants possible reasons for the high success quota of landlords are discussed and the differing behaviour in court by organisations and private persons is analysed in connection with the differing outcomes. Our main finding is that the different goals of bringing a conflict to court determine the result of the lawsuit.