Adversarial Legalism

Robert A. Kagan

Contemporary governance is pervaded and structured by law, judicial rulings, and the prospect of litigation. Yet even as law's domain expands and its density increases, legal institutions and processes vary considerably across nations. The concept of adversarial legalism stems from a typology devised by Robert A. Kagan to characterize this variation, and particularly to distinguish governance and legal processes in the United States from other economically advanced democracies. In Kagan's typology, adversarial legalism is contrasted with bureaucratic legalism—a method of policy implementation and dispute resolution exemplified most clearly by Western European countries with a civil law tradition. In bureaucratic legalism, government agencies and courts are organized hierarchically. The emphasis is on uniform implementation of legal rules, centralized recruitment and supervision of politically neutral legal decisionmakers (judges, prosecutors, police officers, regulatory officials), and judge-dominated adjudicative processes. The influence of disputing parties and their legal advocates is muted. Judges are regarded as ...

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