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COURTS

Of the various functions of courts, the most important is to process. By definition, a dispute is a conflict of claims or rights—an assertion of right, claim, or demand on one side, met by contrary claims on the other. When courts hear disputes, they attempt to decide (adjudicate) between or among those who have some disagreement, misunderstanding, or competing claims. Such disputes may arise between individuals, between organizations (private or governmental), or between an individual and an organization. Jones may sue Smith to recover damages caused by a traffic accident; acting under the provisions of a civil rights statute, the federal government may sue a state to force its officials to stop discriminating against blacks in the electoral process; and a state may charge Miller with burglary and bring him to court in a criminal proceeding to answer the charge. When a judge renders the official judgment of the trial court in a civil or a criminal case as to the defendant’s guilt or innocence, the process is called adjudication.

Unlike legislative and administrative bodies, courts do not place issues on their own agendas. Judges generally do not decide proactively to make rulings about voting rights, racial discrimination, abortion, or any other issue. Rather, courts are passive; they must wait until matters are brought to them for resolution. The passivity of courts places the burden on citizens or organizations to recognize and define their own needs and problems and to determine which require legal judgments. As Donald Black (1973:138) notes, this method of acquiring cases “assumes that each individual will voluntarily and rationally pursue his own interests" The courts are indifferent to those issues or disputes that individuals or organizations fail to notice or wish to ignore. This reactive nature of courts ensures that they consider disputes only after the injuries have taken place or after the problems have developed.

In theory, courts differ from other kinds of dispute-regulation methods in that they are available to all members of society. In principle, everyone who has a dispute for which there is possible legal redress ought to be able to use the courts regardless of ethnic, racial, cultural, or other differences. Unlike dispute-settlement methods that are available only to specific groups in society (for example, college grievance committees or religious tribunals), courts are truly public. As judges make their decisions, they are expected to be impartial and to be governed by legal principles, not by personal preferences or by political pragmatism.

 
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