Dispute Avoidance

Because of its method, doctrinal legal scholarship focuses on the pathology of the legal system—on law as dispute resolution seen in reported judgments. Sociolegal studies are free to look at law in different ways; however, the focus in the majority of such studies tends to be on those aspects of law that relate to dispute resolution—on the courts and the way in which various officials and other actors function in relation to the courts. Yet law is as much a way of avoiding disputes as it is of resolving them, and much of the effect of law lies outside the arenas where disputes are resolved.

Consider a cohabitation contract, setting out the rights and duties of unmarried partners. Jennifer Robbennolt and Monica Johnson show that, depending on the jurisdiction concerned, such a contract may be something that a court can turn to if the partners separate. However, the contract is also something that allows the partners to determine the structure that their lives will have with regard to things like property, thus meaning that separation and any consequent court case is less likely. More generally, Brian Tamanaha emphasizes that a society creates a system of laws not simply to provide courts with a body of rules by which individuals may adjudicate cases. It also serves as a code by which people can live to avoid disputes, although, within any particular system of law, the question of the extent to which law does in fact contribute to the maintenance of social order is an empirical question that needs to be examined.

Some forms of law facilitate dispute avoidance to a greater degree than other types of law. Patrick Atiyah demonstratesd that contract law, in its classical form, is perhaps the preeminent example of law promoting dispute avoidance, since its principal purpose is to provide people with a framework within which they can make agreements about how to conduct their lives.

The degree to which laws can assist dispute avoidance depends in part on the ways in which governments make laws. Laws that governments impose on a community are less likely to aid dispute avoidance than are laws that arise from the community itself.