Report No. 58

Litigation not an evil

2.36. We should make it clear that we do not regard litigation as an evil. Thurman Arnold has analysed the source of judicial prestige in terms of the dichotomy between substantive law and procedure. He has pointed out that many institutions other than courts settle disputes. Yet, of all the institutions engaged in the settlement of disputes, courts alone had "found a way of doing it which has brought them overwhelming prestige and respect"1. Courts are bound by precedent". Arnold noted, while "bureaus are bound by red tape". Arnold added: "It is obvious that our belief that courts are the chief guardians of the supremacy of law is the reason why we adopt such a respectful attitude toward them."

1. See Arnold The Road of Substantive Law and Procedure in the Legal Process, (1932) 45 Harvard Law Review 617, 627, 630.