Abstract
Spain has undergone during the last decade an impressive process of economic development which has begun to change dramatically the social structure of the country (vid. infra, section 2). In principle it can be expected that such a deep process of change must have some impact on the structure and functioning of the Spanish legal system. That is, it can be expected that new socio-economic conditions will affect in some way the volume of legal and judicial activity. By legal activity, I mean the voluntary and spontaneous utilization by private parties of civil norms in effect; by judicial activity, the legal activity before the Courts, i.e., the flow of litigation brought to them. Consequently what I am suggesting is simply that the process of socio-economic change can be expected to have some effect on the use of laws and Courts by private parties.
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Notes
John H. Merryman’s A First Essay on Law and Development, February 1972 (mimeographed) constitutes a seminal exception. My own previous work Cambio social y vida juridica en Espana, 1900–1970, Madrid, cuardernos para el dialogo, 1974; originally, my Ph. D. dissertation at Madrid Law School, attempts to document the effects of economic development on the legal system of Spain. The research project, Studies in Law and Development, conducted at Stanford University under the direction of John H. Merryman, and with the participation of scholars from Mexico, Peru, Chile, Costa Rica, Italy and Spain, should increase enormously our knowledge on the specific effects on the legal system, of the process of economic growth.
A general review of the literature on law and social change can be found in D. Trubeck, “A Critique of the Law and Development Literature” (paper no. 10, Working Papers, Program in Law and Modernization series, Yale Law School).
This portion of the paper is much indebted to Juan J. Linz, whose comments and suggestions contributed enormously to it.
Lawrence M. Friedman, “Legal Culture and Social Development,” in Verfassung and Recht in Obersee, ed. H. Kruger (1969), pp. 265–266.
See T. Kawashima, “Dispute resolution in Japan” in V. Aubert (ed.), Sociology of Law ( Baltimore, Md., Penguin Books, 1969 ).
Juan J. Linz and A. de Miguel, “El empresario ante los problemas laborales” in Revista de Politica Social (October-December, 1963), pp. 5–106.
On attitudes toward recourse to courts of justice for the settlement of a conflict, in a rural, traditional context, see J. Pitt-Rivers, The People of the Sierra (London, Weidenfeld and Nicolson, 1954 ), Chapter X: even when morally right, the party who brings the case to court is looked upon with reprobation by the whole village, which considers his action mannerless.
For a summary of the concepts and implications of the European codification movement, see John H. Merryman, The Civil Law Tradition (Stanford University Press, 1969 ). The basic idea that the law should have no lags or vacuums could allow us to hypothesize that in principle, and controlling for the economic variable, the amount of litigation would tend to be smaller in a civil law system than in a common law system (where the law is to a larger extent worked out through confrontation and contest).
Lawrence M. Friedman and John H. Merryman have helped clarify my thinking on this point.
I use the terms in Max Weber’s sense. Cf. Max Weber on Law in Economy and Society (Cambridge, Harvard University Press, 1954), p. 63. See also R. Bendix’ discussion in Max Weber, an Intellectual Portrait (Anchor Books, 1962 ), pp. 398–400.
Of course, a number of other factors may also intervene, for example, the average technical quality of the lawyers. But to the extent that these have a secondary importance (i.e., they are somewhat subordinated to the factors we have analyzed) they can be ignored for our purposes.
W. Wipplinger, “Spain’s Economic Development Path,” paper presented at a two day conference on Spain in the Seventies: Problems of Change and Transition, held in Washington, D.C., June 13–14, 1973, mimeographed draft, p. 1.
Amando de Miguel, II Informe sobre la situation social de Espana ( Madrid, Euramerica, 1970 ).
Ibidem, p. 99 and ff.
I follow Amando de Miguel’s terminology in II Informe… op. cit.
A. de Miguel, II Informe… op. cit., pp. 92–93.
Ibidem.
The survey was carried out by Professor Angel Zaragoza (School of Law, Universidad Autonoma de Madrid) to whom I am grateful for permission to use his data.
A. Fernandez Serrano, La Abogacia en Espana y en el mundo (Madrid, 1955 ) pp. 374–375.
I am grateful to Messrs. Alzaga and Montero, Attorneys at Law in Madrid, for information they provided me on this point.
Another possible — and probably more refined — way to make such an estimate would be to use as the mean number of cases handled by the lawyers with less than 25 cases per year, some 20 cases (it is indeed hardly conceivable for a full-time practicing lawyer to handle less than such an amount yearly, as an average). For those handling between 100 and 200 the mean can be estimated to be 150. For those handling between 25 and 100, we can estimate a mean of some 62 cases. Finally for those handling more than 200, that is for the fully successful members of the profession, a mean of some 300 cases can be safely estimated (since several of them will in all likelihood handle well over three or four times this figure). Making the same computations as before, with these new means, we reach the result that some 45 percent of the legal conflicts reaching the lawyers’ offices result in litigation, an estimate close enough to the previous one to reinforce its plausibility.
The use of the adverbs “worse” and “better” in this context (and in the following pages) does not carry any ethical or value implication. When I say that the judges perceive the situation as worse than it really is, what I am assuming is that they resent the avoidance of courts, not that such an avoidance is necessarily something evil.
The same can be said of the expression “evasion of cases” or “case evasion” which sometimes will be used as an alternate for “court avoidance” or “avoidance of recourse to the courts.” The expressions are used in a purely descriptive sense, not in a normative sense.
An example of a legal `vacuum“ is the case of devices to prevent electric meters from working properly. In post-war Spain, such cases were frequent but could not be prosecuted, because the narrow provisions of the Criminal Code made it impossible to treat stealing energy as a crime against property.
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Toharia, J.J. (1976). Economic Development and Litigation: The Case of Spain. In: Friedman, L.M., Rehbinder, M. (eds) Zur Soziologie des Gerichtsverfahrens (Sociology of the Judicial Process). Jahrbuch für Rechtssoziologie und Rechtstheorie, vol 4. VS Verlag für Sozialwissenschaften, Wiesbaden. https://doi.org/10.1007/978-3-322-96982-8_4
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