Germany vs England - Informal Justice
Published 03/08/2018
In an insightful comparative empirical study of the United Kingdom and Germany Naomi Creutzfeldt highlights how differing experiences of the formal legal system shape citizens' wider attitudes towards justice.
In her book ‘Ombudsmen and ADR: A Comparative Study of Informal Justice in Europe’ Naomi Creutzfeldt uses empirical research to demonstrate how citizens’ attitudes towards formal justice will influence their attitudes towards informal justice systems - alternative dispute resolution (ADR) methods - and, in particular, ombudsmen. Interestingly, Creutszfeldt finds that particularly in the UK the enhancing of trust and legitimacy in the justice system is an important function of ADR. This function may be undermined, however, if the formal justice system is only seen as serving the interests of some individuals, either because of structural shortcomings or because of individual experiences.
Regarding, the structural issues, Creutszfeldt herself states that in comparison to Germany the UK courts do not work very well, being:
‘overrun [and having] unpredictable outcomes, duration and costs’
Yet, it may be even more detrimental to the experience of formal legal justice in the UK that there is an increasing number of litigants in person (LiPs) who are not dealt with adequately in the formal system. Such litigants are often struggling to understand the law, are understandably confused by the court process and may be dealing with an inequality of arms, leading to a very apparent perception of a power-imbalance. The other side’s experience will also be problematic as they witness their lawyer having to advise the LiP and the inexperience of the LiP leading to inevitable delays that all add to the cost of their representation. Some of these experiences can be found in a recent survey here.
Creutszfeldt’s contribution to the issue of a rising number of LiPs is in pointing to the effect that this can have on the general, national attitudes towards justice and on the possibility of it weakening alternative means for generating trust in the current justice system. It may be added that any ADR mechanism should be shaped in a way that is mindful of the individual experiences of those taking part. If LIiPs are feeling let down by the current formal mechanisms, then alternatives should learn from this and adapt accordingly.
