Frederic R. Kellogg (Universidade Federal de Pernambuco) has posted How Conflict Resolution Succeeds or Fails in Western Law on SSRN. Here is the abstract:
The question stated in this title does not arise in contemporary western legal philosophy. Why not? Law is generally viewed as autonomous and deductive, a static body of rules and principles. Conflict is viewed as a problem that must be settled by law. This view reflects the social contract theory of Thomas Hobbes, where an omnipotent state is ceded authority to resolve or remove conflict inherent in the state of nature. The American Civil War, itself a failure of law, gave rise to an alternative theory of law as an inductive system of inquiry, implying a threshold of failure. Conflicts are viewed as endemic in society and the growth of knowledge and morals, and are either resolved through legal convergence of opposing practices and precedents, or lead to non-legal resolution, including violence. This pragmatist view, advanced following the Civil War by the young (later Supreme Court Justice) Oliver Wendell Holmes, emphasized law’s social and historical grounding, conceiving conflict resolution as an adaptive process of knowledge development and social order. Influenced by the experimentalism of natural science, it implies an extended continuum of inquiry, and the pragmatist logic articulated in 1938 by John Dewey in Logic: The Theory of Inquiry.