Inhalt

Zeitschrift Debatte Richterkulturen

Herausgegeben von: Albrecht Cordes
Thomas Duve

Adjudication Cultures

In today's European-influenced Western world, judges and their vocation of resolving conflicts are seen in the light of an ideal of finality, legal certainty and a systematic mindset. Norms and their areas of applicability are coordinated to form the most comprehensive and unambiguous norm hierarchy possible, courts are – at least in principle – embedded in the secure framework of nation states, and their judges reach authoritative decisions that have teeth thanks to governments' enforcement machinery and that are expected to provide permanent resolutions for conflicts. Although proceedings under civil, administrative and constitutional law can only be initiated upon a party's petition, once the proceedings have been initiated, the judge is under no obligation to reach a consensus. The prevailing judicial ideal is the same as it was in the 19th century: an authoritative judge.

However, this ideal is gradually losing ground. Arbitration, conciliation proceedings, judges attempting to help parties reach a settlement as a more efficient goal than the usual controversial ruling and, finally, jurisdictional shifts away from the context of the nation-state are signs of the times for the modern judiciary. Phenomena such as polycentric structures, legal pluralism, uncoordinated areas of applicability for various norms and overlapping jurisdictions continue to be seen as basically deficient occurrences. But couldn't they also be seen as the approaching historical demise of a model of judges' participation in conflict resolution that arose with the nation state in the 19th century? Couldn't they be a sign that conflict resolution has always – and to a far greater extent than our historical view allows – functioned differently?

Decisions involving what is right and what is not right are made in the context of various cultures or paradigms of judges and courts. Consequently, various epochs or geographic or political regions can produce completely disparate images of what a judge is and/or should be. A judge as a methodologically versed quasi-litterateur who is valued exactly because of his well-founded and even original derivation of his findings from the pool of legal conceptions seems entirely incompatible with the concept of a judge as an authority that dare not be questioned because any question as to the derivation of or grounds for his ruling constitutes an attack on the judiciary's authority. In various historical contexts, we can find judges as legal decision-makers in party-controlled proceedings; as investigators and deciders in one person; as proceedings' "moderators" who leave it to others, usually non-experts in the field of law, to reach the final conflict-resolving verdict; as consensus builders responsible for seeing to it that the parties, other courts, authorities, etc. accept the final judgment; as solitary judges who – at least in theory – disregard consensus and act as "the mouth of the law" or as panel judges, who must consult with their professional colleagues regarding the "right" decision for each case. Judges can reach decisions based on their personal investigations and/or experience with the parties and witnesses in the proceedings, or based on the opposite: files transferred over long distances. Their rulings can be construed either as an offer of one possible resolution to a conflict, a bargaining chip in complex social settlement structures or as having significance beyond the earthly pale (judex animarum) – or both!

In light of the overwhelming historical abundance of strategies, mechanisms and institutions for conflict resolution, this project is intended as an invitation to place and picture conflict resolution and avoidance models within their historical contexts while analyzing their basic mechanisms and to ponder the cultures of adjudication. Please feel free to join the debate!

Please send your submissions and questions to: Olaf Berg berg@rg.mpg.de

Albrecht Cordes, Thomas Duve