Litigation creates Civilization

"Litigation creates Civilization."

I don't know whether I invented that thought or I read it somewhere. I might have read it in a review regarding a law book. Nevertheless, it is one of my favorite thoughts. But like most complex ideas, it's not easy to explain.

Generally we associate litigation with the law and the judicial system. However, I am also thinking about it in a broader context. I am thinking of the litigation that goes on in everyday life between people, through deliberation, when people come together, engage each another and work out their differences or decide on a mutual course of action. In other words, my litigation occurs not only in the legal arena but also in the arena of the ordinary hubbub and friction of every day life. It is this kind of litigation that has really defined the consensus and common practices that exist between us. This litigation is an act that demands a clarity and honesty from people when they engage each other.

However, the idea is easier to understand if you think about it in legal terms rather than in the broader social/political context I've described. For instance, our laws, which have had an enormous civilizing effect on us, have been forged through judicial, litigious means. One might point out, though, that the core of our laws have come from The Ten Commandments, laws that never came to us via litigation but providentially, without litigation. True, but I think it is through the litigation of those laws when they have been broken that we've really learned and internalized them. Without litigation, without that kind of confrontation, those laws would have remained meaningless. Litigation has animated those primal laws and made them effective, making them operational and entrenching them in our psychic. In other words, litigation has given us the understanding, the sense and feeling of those laws. Litigation put us through the paces, cultivating the understanding of those laws. It is through such litigation that we have transcended our tribalism and become a cohesive society.

A lawyer would agree that litigation fosters civility between opponents. In the past adversaries were more apt to do battle to resolve their differences than litigate or negotiate. But in this world that kind of conflictive behavior is no longer an option or acceptable. Civilized people don't go to war anymore, they litigate. Politics is a form of litigation. Throughout the world political activity has expanded and become the way of resolving difference, not through wars as it once was.

America has the most lawyers per capita, making it the most litigious society in the world. There is something to that. I think this has something to do with the fact that America was born of an astonishing array of diversity and an abundance of competing interests. Something had to keep those parties separate, from fighting with each other. Lawyers are what separates them, helping to work out their differences. It is said that a true democracy has many master who place a multiple of demands on it. This makes democracy a very complex situation and thus a potentially very confrontational and litigious affair, hence the need for many lawyers and their litigious skills. And as such America has been at the forefront in creating social policy and more prepared than any other culture to litigate the contentious issues of our time.

This is what the dictionary says about the origins of the word litigate: Latin lītigāre, lītigāt- : līs, līt-, lawsuit + agere, to drive. The term 'agere', part of the origin of litigate, is associated with the word act, like a thing done or set in motion, driven urged, chased or stirred up. So to my way of thinking, litigation is an act occurring all the time between people, like acting things out.

Litigation is a process of working things out. It’s a process of discovery, discovering how to proceed with contentious issues. Often society is confronted with new and puzzling circumstances, which need figuring out, on how to handle and proceed with them. New circumstances usually arise without prior knowledge or forethought on how they should be dealt with. Such circumstances are often void of a known value and require the establishing of rules and regulations on had to go about them. One example is abortion. When this issue first manifested itself into a serious social issue it had all sorts of implications that required a social and legal framework. There have also been scientific discoveries, like life prolonging procedures that have also required litigation to determine their social value and how to deal with them. In these matters the litigation done by courts on society's behalf has done much to civilize and sophisticate us.

The area in which litigation has had the most success and impact is in human rights. There would be no human rights without litigation, without people having their day in court and demanding their rights. African-Americans eventually got their equal status in America by going to court. It was through litigation at the height of the civil rights movement that they achieved integration, equal education and justice under the law, something the American Constitution had vowed to do but society hadn’t yet accomplished. It was through the litigious proceedings during the Nuremberg trials in Germany after WWII that the world got to learn about some of the worst violations perpetrated against humans and humankind. From those trials a universal court for human justice was established, under the auspices of the United Nations. Without such a portal civilization could not have proceed.