Litigation.—Arbitration.

From: Essays on the Principles of Morality, and on the Private and Political Rights and Obligations of Mankind (1834).
Author: Jonathan Dymond
Published: Harper & Brothers 1834 Philadelphia

  IN the third Essay,¹ some inquiry will be attempted, as to whether justice may not often be administered between contending parties, or to public offenders, by some species of arbitration rather than by law, whether a gradual substitution of equity for fixed rules of decision is not congruous alike with philosophy and morals. The present chapter, however, and that which succeeds it, proceed upon the supposition that the administration of justice continues in its present state.

  The question for an individual, when he has some cause of dispute with another respecting property or rights is, By what means ought I to endeavour to adjust it? Three modes of adjustment may be supposed to be offered: private arrangement with the other party,—reference to impartial men,—and law. Private adjustment is the best mode; arbitration is good; law is good only when it is the sole alternative.

  The litigiousness of some of the early Christians at Corinth gave occasion to the energetic expostulation, “Dare any of you, having a matter against another, go to law before the unjust, and not before the saints? Do ye not know that the saints shall judge the world? And if the world shall be judged by you, are ye unworthy to judge the smallest matters? Know ye not that we shall judge angels? How much more things that pertain to this life? If, then, ye have judgments of things pertaining to this life, set them to judge who are least esteemed in the church. I speak to your shame. Is it so that there is not a wise man among you? No; not one that shall be able to judge between his brethren? But brother goeth to law with brother, and that before the unbelievers. Now therefore there is utterly a fault among you, because ye go to law one with another. Why do ye not rather take wrong? Why do ye not rather suffer yourselves to be defrauded?”² Upon this, one observation is especially to be remembered: that a great part of its pointedness of reprehension is directed, not so much to litigation, as to litigation before pagans. “Brother goeth to law with brother, and that before the unbelievers.” The impropriety of exposing the disagreements of Christians in pagan courts was manifest and great. They who had rejected the dominant religion, for a religion of—which one peculiar characteristic was good—will and unanimity, were especially called upon to exhibit in their conduct an illustration of its purer principles. Few things, not grossly vicious, would bring upon Christians and upon Christianity itself so much reproach as a litigiousness which could not or would not find arbitration among themselves. The advice of the apostle appears to have been acted upon: “The primitive church, which was always zealous to reconcile the brethren, and to procure pardon for the offender from the person offended, did ordain, according to the Epistle of St. Paul to the Corinthians, that the saints or Christians should not maintain a process of law one against the other at the bar or tribunals of infidels.”³ The Christian of the present day is differently circumstanced, because, though he appeals to the law; he does not appeal to pagan judges; and therefore so much of the apostle’s censure as was occasioned by the paganism of the courts does not apply to us.

  To this indeed there is an exception founded upon analogy, If at the commencement of the Reformation, two of the Reformers had carried a dispute respecting property before Romish courts, they would have come under some portion of that reprobation which was addressed to the Corinthians. Certainly, when persons profess such a love for religious purity and excellence that they publicly withdraw from the general religion of a people, there ought to be so much purity and excellence among them, that, it would be needless to have recourse to those from whom they had separated, to adjust their disputes. The Catholic of those days might reasonably have turned upon such reformers, and said, “Is it so that there is not a wise man among you, no, not one that shall be able to judge between his brethren?” And if, indeed; no such wise man was to be found, it might safely be concluded that their reformation was an empty name.—For the same reasons, those who, in the present times, think it right to withdraw from other Protestant churches in order to maintain sounder doctrines or purer practice, cast reproach upon their, own community if they cannot settle their disputes among themselves. Pretensions to soundness and purity are of little avail if they do not enable those who make them to repose in one another such confidence as this. Were I a Wesleyan or a Baptist, I should think it discreditable to go to law with one of my own brotherhood.

  But though the apostle’s prohibition of going to law appears to have been founded upon the paganism of the courts, his language evidently conveys disapprobation, generally, of appeals to the law. He insists upon the propriety of adjusting disputes by arbitration. Christians, he says, ought not to be unworthy to judge the smallest matters; and so emphatically does he insist upon the truth that their religion ought to capacitate them to act as arbitrators, that he intimates that even a small advance in Christian excellence is sufficient for such a purpose as this:—“Set them to judge who are least esteemed in the church.” It will perhaps be acknowledged that when Christianity shall possess its proper influence over us, there will be little reason to recur, for adjustment of our disagreements, to fixed rules of law. And though this influence is so far short of universal prevalence, who cannot find among those to whom he may have access some who are capable of deciding rightly and justly? The state of that Christian country must indeed be bad, if it contains not, even— in every little district, one that is able to judge between his brethren.

  Nevertheless, there are cases in which the Christian may properly appeal to the law. He may have an antagonist who can in no other manner be induced to be just or to act aright. Under some such circumstances Paul himself pursued a similar course: “I appeal unto Cæsar.”—“Is it lawful for you to scourge a man that is a Roman, and uncondemned?” And when he had been illegally taken into custody, he availed himself of his legal privileges, and made the magistrates “come themselves and fetch him out.” There are, besides, in the present condition of jurisprudence, some cases in which the rule of justice depends upon the rule of law,—so that a thing is just or not just according as the law determines. In such cases neither party, however well disposed, may be able distinctly to tell what justice requires until the law informs them. Even then, however, there are better means of procedure than by prosecuting suits. The parties may obtain “opinions.”

  Besides these considerations there are others which powerfully recommend arbitration in preference to law. The evils of litigation, from which arbitration is in a great degree exempt, are great.

  Expense is an important item. A reasonable man desires of course to obtain justice as inexpensively as he can; and the great cost of obtaining it in courts of law is a powerful reason for preferring arbitration.

  Legal Injustice. He who desires that justice should be dispensed between him and another should sufficiently bear in mind how much injustice is inflicted by the law. We have seen in some of the preceding chapters that law is often very wide of equity; and he who desires to secure himself from an inequitable decision possesses a powerful motive to prefer arbitration. The technicalities of the law and the artifices of lawyers are almost innumerable. Sometimes, when a party thinks he is on the eve of obtaining a just verdict, he is suddenly disappointed, and his cause is lost by some technical defect,—the omission of a word or the misspelling of a name; matters which in no degree affect the validity of his claims. If the only advantage which arbitration offers to disagreeing parties was exemption from these deplorable evils, it would be a substantial and sufficient argument in its favour. There is no reason to doubt that justice would generally be administered by a reference to two or three upright and disinterested men. When facts are laid before such persons, they are seldom at a loss to decide what justice requires. Its principles are not so critical or remote as usually to require much labour of research to discover what they dictate. It might be concluded, therefore, even if experience did not confirm it, that an arbitration, if it did not decide absolutely aright, would at least come to as just a decision as can be attained by human means. But experience does confirm the conclusion. It is known that the Society of Friends never permits its members to carry disagreements with one another before courts of law. All, if they continue in the society, must submit to arbitration. And what is the consequence? They find, practically, that arbitration is the best mode; that justice is in fact administered by it, administered more satisfactorily, and with fewer exceptions, than in legal courts. No one pretends to dispute this. Indeed, if it were disputable, it may be presumed that this community would abandon the practice. They adhere to it because it is the most Christian practice and the best.

  Inquietude. The expense, the injustice, the delays and vexations which are attendant upon lawsuits, bring altogether a degree of inquietude upon the mind which greatly deducts from the enjoyment of life, and from the capacity to attend with composure to other and perhaps more important concerns. If to this we add the heart-burnings and ill-will which suits frequently occasion, a considerable sum of evil is in this respect presented to us: a sum of evil, be it remembered, from which arbitration is in a great degree exempt.

  Upon the whole, arbitration is recommended by such various and powerful arguments, that when it is proposed by one of two contending parties and objected to by the other, there is reason to presume that with that other justice is not the paramount object of desire.

——————————
^{1 Chap. x.
2 1 Cor. vi.
3 Rycaut’s Lives of the Popes, fol. 2d ed. 1688. Introd. p. 2.}

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