In many instances the participants can devise more satisfactory solutions to their disputes than can professionals constrained to apply general rules on the basis of limited knowledge of the dispute. The variability of preferences and of situations, compared to the small number of things that can be taken into account by formal rules and the loss of meaning in transforming the dispute into professional categories suggest limits on the desirability of conforming outcomes to authoritative rules.
This point from Marc Galanter’s famous article “Justice in Many Rooms: Courts, Private Ordering, and Indigenous Law” (1981) cautions us against reflexive reliance on formal rules and remedies to the neglect of less formal and more adaptive mechanisms of social ordering and dispute resolution. Law has its limits and often its drawbacks.
In the legal field, the proliferation of mediation as an alternative dispute resolution tool is heartening but not a complete answer to this formal-informal balance. Robert Putnam, in his equally famous article “Bowling Alone: America’s Declining Social Capital” (1995) bemoans the fact that “the vibrancy of American civil society has notably declined over the past several decades” because “every year over the last decade or two, millions more have withdrawn from the affairs of their communities.” Not only have informal social organizations declined in number, warns Putnam, those which remain have largely changed in character:
Some small groups merely provide occasions for individuals to focus on themselves in the presence of others. The social contract binding members together asserts only the weakest of obligations. Come if you have time. Talk if you feel like it. Respect everyone’s opinion. Never criticize. Leave quietly if you become dissatisfied….We can imagine [that these small groups] really substitute for families, neighborhoods, and broader community attachments that may demand lifelong commitments, when, in fact, they do not.
Putnam notes also that, by certain measures, intolerance and discrimination are on the decline as well. But we might be careful how we interpret that result. A consequence of growing atomization may be that Americans have less occasion to experience (or express) social friction. We might also experience a corresponding diminution of our capacity to manage social conflict without recourse to formal institutional mechanisms.
My (slightly rambling) point here is that the formal institutional structures rest upon a substratum of less formal, more organic institutions and depend upon that foundation to function effectively. As I recently said in another connection, and as a recent shooting in my community affirms, there will never be enough police (or, for that matter, gun control) to constrain a community in which certain norms of behavior (or conflict management) have not been internalized. Such norms are inculcated through informal institutions that we perhaps do not sufficiently value.