1 Not all indigenous law in now-Western societies is “customary” law. Typically, there are also indigenous systems of sacred law or state law that are broader in application and more formalized than local customary or tribal systems but still markedly different from the Western systems later imposed. See generally M. B. Hooker, Legal Pluralism: An Introduction to Colonial and Neo-colonial Laws (Oxford: Clarendon Press, 1975); Lloyd I. Rudolph & Susanne H. Rudolph, The Modernity of Tradition: Political Development in India (Chicago: University of Chicago Press, 1967); Roberto Mangabeira Unger, Law in Modern Society: Toward a Criticism of Social Theory (New York: Free Press, 1976); Max Weber, On Law in Economy and Society, ed. & annot. Max Rheinstein, trans. Edward Shils & Max Rheinstein (Cambridge, Mass.: Harvard University Press, 1954 [1925]).Google Scholar

2 The leading study of legal pluralism in colonial and postcolonial societies is Hooker, supra note 1.Google Scholar

3 Engel, David M., Code and Custom in a Thai Provincial Court: The Interaction of Formal and Informal Systems of Justice, Association for Asian Studies Monograph no. 34 (Tucson: University of Arizona, 1978) [hereinafter cited as Code and Custom], and Law and Kingship in Thailand During the Reign of King Chulalongkorn, Michigan Papers on South and Southeast Asia no. 9 (Ann Arbor: Center for South and Southeast Asian Studies, University of Michigan, 1975); June Starr, Dispute and Settlement in Rural Turkey: An Ethnography of Law (Leiden: E. J. Brill, 1978); Norman J. Singer, Modernization of Law in Ethiopia: A Study in Process and Personal Values, 11 Harv. Int'l L.J. 73 (1970); Kenzo Takayanagi, A Century of Innovation: The Development of Japanese Law, 1868-1961, in Arthur Taylor von Mehren, ed., Law in Japan: The Legal Order in a Changing Society 5-40 (Cambridge, Mass.: Harvard University Press, 1963).Google Scholar

4 Brakel, Samuel J., American Indian Tribal Courts: The Costs of Separate Justice 5-11 (Chicago: American Bar Foundation, 1978); Hooker, supra note 1, at 312-31.Google Scholar

5 Macaulay, Steward, Non-Contractual Relations in Business: A Preliminary Study, 28 Am. Soc. Rev. 55 (1963).Google Scholar

6 H. Laurence Ross, Settled Out of Court: The Social Process of Insurance Claims Adjustments (Chicago: Aldine Publishing Co., 1970).Google Scholar

7 See, e.g., Harvey J. Kirsh, Conflict Resolution and the Legal Culture: A Study of the Rabbinical Court, 9 Osgoode Hall L.J. 335 (1971); Note, Roman Catholic Ecclesiastical Courts and the Law of Marriage, 7 Colum. J.L. & Soc. Prob. 204 (1971); Leigh-Wai Doo, Dispute Settlement in Chinese-American Communities, 21 Am. J. Comp. L. 627 (1973); James Yaffe, So Sue Me! The Story of a Community Court (New York: Saturday Review Press, 1972); Soia Mentschikoff, Commercial Arbitration, 61 Colum. L. Rev. 846 (1961); Robert L. Bonn, The Predictability of Nonlegalistic Adjudication, 6 Law & Soc'y Rev. 563 (1972); Gerald Aksen, Arbitration of Automobile Accident Cases, 1 Conn. L. Rev. 70 (1968); Eric H. Steele, Fraud, Dispute, and the Consumer: Responding to Consumer Complaints, 123 U. Penn. L. Rev. 1107 (1975); Leon H. Mayhew, Law and Equal Opportunity: A Study of the Massachusetts Commission Against Discrimination (Cambridge, Mass.: Harvard University Press, 1968).Google Scholar

8 See, e.g., Harry Kalven, Jr., & Hans Zeisel, The American Jury 219-347 (Boston: Little, Brown & Co., 1966).Google Scholar

9 Green, Thomas H., The Jury and the English Law of Homicide, 1200-1600, 74 Mich. L. Rev. 414 (1976).CrossRefGoogle Scholar

10 Fuller, Lon L., Human Interaction and the Law, 14 Am. J. Juris. 1, 2-3 (1969). Compare Pospisil's concept of legal systems regulating behavior within each of the functioning subgroups of a society. Leopold Pospisil, Legal Levels and Multiplicity of Legal Systems in Human Societies, 11 J. Conflict Resolution 2 (1967). The influence of Ehrlich's conception of the “living law” is evident in all such approaches, including the approach used in this essay. See Ehrlich, Eugen, Fundamental Principles of the Sociology of Law, trans. W. L. Moll (New York: Russell & Russell, 1962 [1936]).Google Scholar

11 Unger, supra note 1, at 49.Google Scholar

12 See Fuller, , supra note 10, at 31; in this context Unger seems wrong in arguing that “[c]ustom flourishes to the extent that there is a closely integrated community of understandings and ideals-widely shared, coherently interrelated, concrete in their dictates, and intensely held.” Unger, supra note 1, at 127.Google Scholar

13 See, e.g., Engel, Code and Custom, supra note 3, at 118-32.Google Scholar

14 Compare Sally Falk Moore, Law as Process: An Anthropological Approach (Boston: Routledge & Kegan Paul, 1978), and her discussion of the shaping of formal laws through the accretion of heterogeneous elements over time.Google Scholar

15 Compare Pound's discussion of legal interests in 3 Roscoe Pound, Jurisprudence ch. 14 (St. Paul, Minn.: West Publishing Co., 1959); see also Stone, Julius, Social Dimensions of Law and Justice 164-385 (reprint ed. Holmes Beach, Fla.: Wm. M. Gaunt & Sons, 1972).Google Scholar

16 Compare Collier's discussion of choices among legal levels in a Maya community in Mexico. Jane Fishburne Collier, Law and Social Change in Zinacantan (Stanford, Cal.: Stanford University Press, 1973).Google Scholar

17 For a discussion of one form of linguistic change resulting from the interaction of plural language systems, see Dell Hymes, ed., Pidginization and Creolization of Languages (proceedings of a conference held at the University of the West Indies, Mona, Jamaica, Apr. 1968) (Cambridge: At the University Press, 1971).Google Scholar

18 The sociology of deviance suggests that such breaches are an ever-present and, indeed, a necessary and integral part of any society. See Erikson, Kai T., Wayward Puritans: A Study in the Sociology of Deviance (New York: John Wiley & Sons, 1966).Google Scholar

19 Compare, e.g., Charles E. Clark & Harry Shulman, A Study of Law Administration in Connecticut: A Report of an Investigation of the Activities of Certain Trial Courts in the State (New Haven, Conn.: Yale University Press, 1937); Francis W. Laurent, The Business of a Trial Court: 100 Years of Cases (Madison: University of Wisconsin Press, 1959); Craig Wanner, The Public Ordering of Private Relations (pts. 1 & 2), 8 Law & Soc'y Rev. 421 (1974). 9 id. 293 (1975); Lawrence M. Friedman & Robert V. Percival, A Tale of Two Courts: Litigation in Alameda and San Benito Counties, 10 Law & Soc'y Rev. 267 (1976).Google Scholar

20 See discussion of the judge's role in processing civil cases in David M. Engel & Eric H. Steele, Civil Cases and Society: Process and Order in the Civil Justice System, 1979 A.B.F. Res. J. 295, 311-14.CrossRefGoogle Scholar

21 The activities of this court ad the characteristics of its civil case load will be examined elsewhere in greater detail. All figures are based on a 20 percent sample of the combined civil filings for 1975 and 1976.Google Scholar

22 Friedman & Percival, supra note 19.Google Scholar

23 A problem raised in Richard Lempert, More Tales of Two Courts: Exploring Changes in the “Dispute Settlement Function” of Trial Courts, 13 Law & Soc'y Rev. 91, 97-100 (1978).Google Scholar

24 Friedman and Percival do point out that “routine” matters may involve important “mass” effects, although they maintain that ‘in the particular case, they are small in size and consequence.” Friedman & Percival, supra note 19, at 271. Among those who accept the dichotomous analysis of disputes and routine judicial processing, even this concession is often overlooked.Google Scholar

25 Compare Moore's argument that social conflict must be viewed at the aggregate as well as the individual level. She emphasizes that we must look not merely at individual disputes and disputants but at the corporate groups to which the participants belong, asking, “‘When and under what circumstances do they mobilize as units against each other? What kinds of events may be used (or not) as the occasion for confrontations? How are confrontations rationalized?’” Sally F. Moore, Legal Liability and Evolutionary Interpretation: Some Aspects of Strict Liability, Self-Help and Collective Responsibility, in Max Gluckman, ed., The Allocation of Responsibility 76 (Manchester, Eng.: Manchester University Press, 1972).Google Scholar

26 Compare Simon Roberts, Order and Dispute: An Introduction to Legal Anthropology 200 (New York: St. Martin's Press, 1979).Google Scholar

27 For an interesting exchange on the study of disputes versus the study of norms and observance, see Richard L. Abel, Customary Laws of Wrongs in Kenya: An Essay in Research Method, 17 Am. J. Comp. L. 573 (1969); Max Gluckman, Limitations of the Case-Method in the Study of Tribal Law, 7 Law & Soc'y Rev. 611 (1973); Richard L. Abel, Reply to Max Gluckman, 8 Law & Soc'y Rev. 157 (1973).CrossRefGoogle Scholar

28 In sec. IIIA infra, e.g., I discuss a system of customary law involving oral contractual agreements among farmers. This system played an extremely important role in the community I studied, serving to regulate exchanges and maintain order within one prominent segment of the society. A striking feature of this system of customary law is that it very rarely was breached by local farmers. Thus, if one had set out to study only the disputes that arose in the community, it is quite likely that this crucial area of informal regulation would have been overlooked entirely, since it so seldom gave rise to conflict. Even if the observer did chance to encounter one of the rare instances of breach, there would still be the danger of discounting the importance of oral contractual agreements among farmers because disputes were infrequent, or of misinterpreting the customary law in an effort to depict normality only through the analysis of situations involving pathology. Any of these possibilities would have resulted in the neglect or erroneous characterization of an area of informal law central to the life of the traditional farming community.Google Scholar

29 Llewellyn and Hoebel, who were early and extremely influential advocates of the study of “trouble-cases,” emphasized that such an approach was only one of “three roads into exploration of the law-stuff of a culture.” The other two roads involved the study of rules or norms and the study of actual practice or behavior. They stressed that the three approaches were related and that none could be understood without consideration of the other two. K. N. Llewellyn & E. Adamson Hoebel, The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence 20-22 (Norman: University of Oklahoma Press, 1941). Richard L. Abel, whose essay “A Comparative Theory of Dispute Institutions in Society” has influenced a more recent generation of scholars interested in dispute analysis, likewise cautioned that his approach should be considered only one of many in the study of law and legal behavior in society:Google Scholar

30 “Sander County” (a fictitious name), which will be described in more detail elsewhere, is a middle-sized rural county in Illinois. The county is composed of small and middle-sized population centers surrounded by fertile farmlands. Recent years have witnessed an increase in industrial activity, with the usual consequences for the local society-increased mobility and heterogeneity of the population, a shift in the economic Jase of the county, gradual changes in political and administrative activities and outlooks, and a readjustment of the county's relationship with the world outside. Nonetheless, Sander County remains a strongly traditional community with a cautious and highly selective approach to changes that might alter its essential character. As such, it speaks eloquently for the strength of long-standing rural customs and perspectives as well as the impact of changes and dislocations found throughout modern American society.Google Scholar

31 Compare generally Lempert's discussion of the “open” norm that “valid agreements should be kept.” Richard Lempert, Norm-Making in Social Exchange: A Contract Law Model, 7 Law & Soc'y Rev. 1 (1972).Google Scholar

32 In the discussion that follows, I examine certain distinctions between the farmer's customary law of oral contractual agreements and the formal law of contracts. It should be emphasized that, despite differences in such matters as the characterization of breach and the remedies and procedures deemed appropriate in the event of breach, both systems recognize that valid contractual agreements may be made orally. See note 33 infra. Google Scholar

33 Generally speaking, of course, this perception of the formal law of contracts was incorrect. The rule is: “Absent a statute commanding some special requirement, a promise is legally binding though expressed orally or by conduct other than words, if the other essentials to the formation of an informal contract exist.” Grover C. Grismore, Principles of the Law of Contracts 434 (John Edward Murray, Jr., rev. ed. Indianapolis: Bobbs-Merrill Co., 1965). The statutory exceptions to this rule are not generally relevant to the oral contractual agreements I discuss in this section. The statute of frauds, e.g., requires that certain kinds of contracts (such as contracts of executors and administrators, special promises to answer for the debt of another, contracts for the sale of land, and others) be reduced to writing. The Uniform Commercial Code, § 2-201, now regulates one important area formerly controlled by the statute of frauds, i.e., contracts for the sale of goods. (For other areas now regulated by the U.C.C. but not directly relevant to this discussion, see id.§§ 1-206, 8-319, 9-203.) The complexities of the U.C.C. provisions in this regard are beyond the scope of this discussion. It should be observed, however, that no writing is required by the U.C.C. for any contract involving the sale of goods of a value under $500. Even for goods exceeding $500 in value, oral contracts can, under certain circumstances, become enforceable. See id.§ 2-201(1), (3). Further, it is generally agreed that contracts for labor and materials are not included in the U.C.C. provisions concerning sale of goods and are therefore generally enforceable if made orally. In sum, it is probable that most of the oral agreements 1 discuss in this section would be viewed under the formal law of contracts as judicially enforceable even without any writing.Google Scholar

34 Here, again, the lay perception of the formal legal system exaggerated the extent to which written proof is required and oral testimony is discounted in court. Compare Wigmore on “testimonial evidence.” 2 John Henry Wigmore, Evidence §§ 475-80 (3d ed. Boston: Little, Brown & Co., 1940).Google Scholar

35 Compare Galanter's discussion of dispute settlement systems “appended” to the formal litigation system and influenced by it. Marc Galanter, Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change, 9 Law & Soc'y Rev. 95 (1974). See also the discussion of feedback from the adjudicatory stages of the civil system to the earlier stages, where decisions are made whether and how to pursue civil cases, in Engel & Steele, supra note 20.CrossRefGoogle Scholar

36 “Divorce rate” here means divorces per 1,000 population, the rather crude index used by the U.S. Bureau of the Census to compare frequency of divorce in different localities.Google Scholar

37 See text at p. 429 supra. Google Scholar

38 III. Ann. Stat. ch. 40, § 1 (Smith-Hurd 1976). This was the law in effect during the filing period of the cases included in my study: 1975 and 1976. When a new Illinois Marriage and Dissolution of Marriage Act was passed, effective Oct. 1, 1977, the section cited above was repealed and replaced by Ill. Ann. Stat. ch. 40, § 401 (Smith-Hurd Cum. Supp. 1980-81), which still retains the fault ground (specifically, “extreme and repeated physical or mental cruelty”) on which my discussion of divorce centers.Google Scholar

39 Illinois traditionally recognized the doctrine of recrimination, which held that a plaintiff was not entitled to a divorce if he or she committed acts constituting grounds for divorce of the same statutory character as those alleged against defendant. This doctrine reflected the judicial attitude that there must be not only fault on the part of the defendant but innocence of fault on the part of the plaintiff. “It is the settled law that divorce is a remedy provided only for an innocent party….” Garrett v. Garrett, 252 Ill. 318, 322, 96 N.E. 882, 884(1911). The doctrine of recrimination was specifically abolished under the 1977 act (after the filing period of the cases I studied), Ill. Ann. Stat. ch. 40, § 403(6)(c) (Smith-Hurd Cum. Supp. 1980-81), but the new law does require a finding that petitioner did not “caur.e or [provoke]” the misconduct complained of. Id.§ 401(2).Google Scholar

40 Compare my suggestion that divorce actions in their formal aspects assume many of the features of delictual actions, with Clark, who, in his discussion of recrimination, refers to the “widely held [judicial] view that divorce, like a tort action, is a means of compensating the innocent spouse for the wrong caused by the guilty.” Homer H. Clark, Jr., The Law of Domestic Relations in the United States 374 (St. Paul, Minn.: West Publishing Co., 1968).Google Scholar

41 This case, like the preceding one, involved a pro se filing with very limited involvement by an attorney. I do not wish to give the impression that pro se divorces were common in the Sander County court; on the contrary, they were quite rare. I use them here to illustrate my argument because they reveal most clearly the contrast between lay conceptions and the formal legal system without the mediating activities of an attorney to bridge the conceptual gap.Google Scholar

42 Original spelling and punctuation are reproduced here and in Mary Smith's letter without change.Google Scholar

43 See text at p. 434 supra Google Scholar

44 It is significant to note in this regard one of the ironies of the doctrine of recrimination (which was then still in effect): a finding by the judge that both parties were equally at fault (rather than that one spouse alone was guilty of wrongful behavior) would have meant that divorce was impossible under Illinois law, and husband aid wife would have remained inextricably bound together.Google Scholar