The Passive Arbiter: Litigants in Person and the Challenge to Neutrality
25 Pages Posted: 28 Mar 2006
Date Written: January 16, 2006
Abstract
Common law adjudication is dominated by the idea of the passive arbiter. Two parties contest the rights and wrongs of their case, in front of a generally passive, non-intervening judge. The idea of a passive arbiter is partly founded on a theory of party control: a belief that party control is the most effective method of articulating cases and ensuring that the parties will believe that justice has been done regardless of the outcome. The theory also claims cognitive benefits for judges. Other benefits are claimed for passive styles of judging. It reduces the likelihood of the judge visibly falling into error (because they do less and do it less visibly). It is also administratively convenient (reducing the work a judge has to do and enabling the handling of more cases), and so promotes the legitimacy of the judiciary.
Whilst the latter justifications for passivity promote institutional norms of efficiency and status, this paper concentrates on justice values justifications. It tests the validity of the passive arbiter paradigm in the context of litigants in person. In the rarefied atmosphere of the courtroom, litigants in person are the classic outsiders. Legally uninformed, sometimes emotional and difficult, the interaction between the unrepresented, their opponents and the judiciary challenges the finely calibrated balance between substantive and procedural justice performed by judges, litigators and advocates. The raw interface between social and legal definitions of fairness calls into question the legitimacy of legal process as a fair resolver of disputes. The risks of substantive injustice force judges from the relative safety of passivity towards a degree of intervention that seeks to reconcile two competing demands: the needs of the unrepresented litigant for help and the needs of all parties for a system that is perceived as even-handed. This paper documents the challenges to the traditional paradigm and the response of judges to it. It urges a rethink of the underlying ideology of the passive arbiter which informs much current judgecraft. If the ethic of judging aspires to the embodiment of fairness in a legal process, then the litigant in person shows that the meaning of that fairness is not clear and its achievement not deliverable by formal process alone. It may need to be delivered in spite of formal process. Indeed, the passive arbiter is seen as embodying the ideal of impartiality, when in fact it is patently not impartial.
Keywords: Adjudication, judges, courts, pro se litigants, litigants in person, adversarial
JEL Classification: K40, K41
Suggested Citation: Suggested Citation