As the field of law and society began to flourish worldwide in the 1960s and 1970s, one of its primary foci - some would say its signature research paradigm - was the study of disputes and dispute processing.
There are several reasons for the ascendancy of dispute analysis among law and society researchers during the second half of the twentieth century.
The study of law across the nations of the world had long been dominated by comparative law specialists and their analysis of “families of law” - civil law, common law, and socialist law - as they operated in different countries.
But this type of analysis was not well-suited to the interests of law and society researchers, particularly those who studied Asian societies. Comparative law scholarship was primarily doctrinal and not empirical. It focused on law texts and the opinions of high court judges. Since it emphasized the “top down” study of laws and legal institutions that had been transplanted from Europe and North America, its methods were somewhat limited in their capacity to probe deeper into the actual workings of law within the societies and cultures of Asian countries. Lacking the sociological dimension that was so important to law and society scholars, the field of comparative law seemed to mask or ignore the cultural dimensions of law - its meanings, its everyday uses, and its actual consequences for the peoples and societies of Asia.But if the methods of comparative law scholarship were too limited for law and society scholars, what alternative set of methods could they adopt? The question became particularly pressing with the recognition by law and society
115 scholars of the universality of legal pluralism, as described in Chapter 2. How could researchers escape the straitjacket of top-down doctrinalism if they wished to study the multilayered, multicentered legal systems in countries throughout the world? The answer that emerged during the formative years of the law and society field was the study of disputes. Every society - indeed, every level and location in every society - had disputes and developed distinctive ways to deal with them.
If the dispute became the unit of scholarly analysis, there would be no built-in bias toward official versus non-official legal institutions or Western versus non-Western concepts of law and legality. Even the distinction between civil and criminal justice systems would become contingent, since the shaping and definition of most disputes as civil or criminal cases depends as much on extrinsic social factors as on their intrinsic features. Thus, researchers began to base their inquiry not on doctrinal categories, law texts, or families of law, but on the dispute itself. They asked what the dispute was about, how it arose, where it went, how it was handled, and whether various forms of official law became relevant, remained dormant, or were avoided altogether. Dispute analysis could encompass formal law and legal institutions - some disputes, but certainly not all of them, did end up in court - but it did not make formal law its central or exclusive focus or even its starting point. The centrality and the importance of official law in a given dispute became an empirical question and was never simply assumed. In short, researchers came to regard disputes as the atoms out of which all legal matter was constituted.It is impossible to overstate the importance of the dispute paradigm in the emergence of law and society as an academic field. Although some of the features of dispute processing scholarship now appear dated - or overly positivistic - it left a lasting impression, and its influence remains strong. Scholars such as Laura Nader, Richard Abel, Marc Galanter, and Sally Falk Moore published important theoretical pieces on dispute analysis that guided much of the empirical work. Nader’s (1965) classic comparison of two villages in Lebanon and Mexico, for example, led her to theorize that disputes are more likely to be filed as lawsuits in state-run courts when communities are “divided into two endogamous groups” as compared to less sharply divided communities, which tend to resolve disputes internally without formal
Dispute-based law and society researchers tended to avoid using the term “dispute resolution” and instead spoke of “dispute processing” or simply “disputing.” This was because of the recognition that many disputes went unresolved and instead persisted or branched into new and different forms of grievance.
It was the handling of the disputes that interested researchers rather than some imagined finite outcome. litigation. Abel (1973) theorized that the handling of disputes is shaped by the nature of the third party “intervenors.” The more they are “differentiated” culturally, socially, and professionally from the context of the dispute and from the disputants themselves, the more formalized, rationalized, bureaucratized, and “legalistic” the dispute resolution process. Moore (1973) theorized that the concept of the “semi-autonomous social field” explained why legal norms partially but not completely shaped the handling of disputes in particular social settings. Galanter (1974) called attention to the advantages enjoyed by “repeat players” in dispute processing and explained why they tend to come out ahead of “one-shotters” both in the short term and in the long run.Influenced by these and other theories, fieldwork studies of dispute behavior in many different societies proliferated. Even studies of litigation and court caseloads rested largely on a foundation of dispute analysis, as law and society scholars attempted to track disputes that found their way to court in comparison to those that did not. Some researchers undertook large scale surveys of disputing in different countries, based on the assumption that meaningful comparative conclusions could be drawn if scholars working in each society adopted the dispute as the common unit of analysis (Trubek et al. 1983; Genn and Beinart 1999; Michelson 2007; Matsumura and Murayama 2010).
Readings in this chapter illustrate some of the recent applications of dispute analysis by law and society scholars working in Asia.
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