The relationship between social structure and the development of legal institutions is the central theme in the classic study-by Richard Schwartz, now more than two decades old, “Social Factors in the Development of Legal Control: A Case Study of Two Israeli Settlements” (1954). The article is based on an examination of the systems of control developed in two rural communities, one a kibbutz (or kvutza), based on social and economic collectivism; the other a moshav, a cooperative settlement with private property and social life geared to the nuclear family. Internal controls in both communities were exercised through a General Assembly, composed of all members, and by a number of specialized committees. In contrast to the moshav, which had a Judicial Committee performing an adjudicatory function, Schwartz found that the kibbutz “had no distinctly legal institution” and that its control system “must be considered informal rather than legal” since public opinion constituted its sole sanction (Schwartz, 1954: 471,476).

In 1968 Renato Treves and J.F. Glastra van Loon edited Norms and Actions, a book of essays by indigenous scholars describing “law and society” research in their countries. No account of work in Britain was included, probably because there was so little activity in the field at that time. Yet only eight years later remarkable changes seem to have occurred. Courses at undergraduate and postgraduate level have proliferated; the number of empirical research projects is expanding; new centers and institutes have been established, series of books and a specialist journal have been launched, and financial and institutional support is provided by the universities, research councils, and through governmental initiatives. Not too long ago Lon Fuller (1967:1) suggested that the growth of interest in studying the operation of the law in American society had “come to assume the proportions of something like an intellectual movement.” Some commentators are tempted to perceive recent British developments in like fashion. But whatever the truth of Fuller's analysis of the American setting, it is dangerous to apply it to the situation in Britain. It would be reassuring to think that British academics simply discovered (rather later than elsewhere) a novel field of inquiry and boldly set out to explore it, and that the clamor of current activity indicates a vigorous beginning has been made. This would allow us to predict a healthy future and the rapid enhancement of our understanding of the nature and operation of law. It is just as plausible, however, to regard the current developments as fortuitous and perhaps transitional—the product of a curious concatenation of institutional, political and social influences.

In the two years from June 20, 1971, to March 10, 1973, Japanese courts decided four pollution injury suits colloquially known in Japan as the “big four.” This litigation and the social and political movements that accompanied it are of great interest from several perspectives, including the doctrinal development of Japanese tort law. This article, however, will focus not on the legal or political impact of the litigation, but on the way in which cultural and social factors influenced its course. I attempt to illuminate thereby a side of the Japanese legal system that is ordinarily hidden from view, i.e., the interface of modern Japanese society and the formal legal system.

Professor Allan Shapiro's article, “Law in the Kibbutz: A Reappraisal” raises several questions about my 1954 article, “Social Factors in the Development of Legal Control: A Case Study of Two Israeli Settlements.” I shall formulate the major questions, as I understand them, and suggest the answers as well as I can.

Conflict between individuals and between groups is a normal part of social life. The necessity of coping with disputes and emnity is universal, but societies differ in the ways they deal with conflict. Six basic modes of procedure of conflict management that fall into two major classes can be distinguished: triadic procedures; i.e., those in which the settlement of a dispute depends on the intervention of a third party (adjudication, arbitration, mediation) and dyadic procedures (negotiation, coercion, avoidance.). In the dyadic modes one or both principal parties must necessarily rely on self-help in processing a dispute, though possibly with the help of partisan supporters or representatives. Avoidance occurs when one principal withdraws from the conflict situation [“exit” in Hirschman's (1970) terminology]. By coercion, the threat or use of force, one principal imposes the outcome of a dispute and alone determines his concesssion, if any, to the opponent. Negotiation, once initiated by one of the principals, requires the cooperation of both parties and, if successful, leads to the settlement of a dispute by bilateral agreement.

Courts are supposed in common law countries to operate by adversary adjudication. Until a few years ago I, for one, thought that they did. Apart from radio, TV, and the movies, which reinforce this symbol with all their might, my only exposure to courts was as a juror in a case of the alleged theft of one used automobile battery. We deliberated long and found the defendant (who was surely guilty of something!) to be not guilty. I took for granted that my experience was an example of typical practice. It never occurred to me to reflect upon the size of the taxpayers' bill if there were to be a trial of this sort for every crime of this magnitude. Nor did I suspect that I could be witnessing an exception rather than the rule, the exception being a jury trial, since my only contact with a court was in the capacity of juror.

Motorcycles are involved in fatal crashes far in excess of their share of motor vehicle mileage or registrations. Although their annual mileage per vehicle is less than half that of cars (Federal Highway Administration, 1974), and they were only 3.7 percent of registered motor vehicles in the U.S. in 1974, their riders accounted for 6.8 percent of motor vehicle fatalities (National Safety Council, 1975). A study of vehicle sizes in fatal crashes found that motorcycles killed pedestrians at about the same rate per registered motorcycle as small cars per registered small car (Robertson and Baker, in press). (The pedestrian rates were higher per registered vehicle among larger cars and trucks.) A survey of traumatic spinal cord injuries in 18 Northern California counties found that 9 percent of motor vehicle related spinal cord trauma occurred to motorcyclists (Kraus, et al., 1975). In one California county where an attempt was made to find all medically treated motorcyclist injuries, one of every 24 registered motorcycles per year was involved in a crash that resulted in such injuries (Kraus et al., 1975).