363 lines
21 KiB
Plaintext
363 lines
21 KiB
Plaintext
|
|
Social Control vs. Human Needs:
|
|
the Practice and Promise of RADRS
|
|
|
|
by Richard Taylor
|
|
|
|
The changed form and substance of law is rather like what a jailer
|
|
might do who shifted a prisoner's chains...or removed them and
|
|
substituted bolts and bars.
|
|
|
|
-Tolstoy
|
|
|
|
|
|
I. The judicial alternatives movement is seen by some as a
|
|
opportunity for individuals and communities to recover or assume a
|
|
certain degree of control over the administration of justice in their
|
|
own lives. Others have raised the criticism that it amounts to a high-
|
|
tech way for the state to exert control over citizens. I will examine the
|
|
issue of social control relating to ADR, and hope to develop the
|
|
reader's ability to make statements regarding ADR's putative
|
|
liberatory potential; ie does ADR enable people to manage their needs
|
|
for social order independently of the formal judicial system? Can it? If
|
|
not, how might the emancipatory vision be realized? Evidence from
|
|
sociology, legal scholarship, and primatology will be considered.
|
|
|
|
II. Joseph Scimecca, in his paper _Conflict Resolution and a
|
|
Critique of RADRS_, first chooses to define ADR in a certain narrow
|
|
sense as being Rthose processes which are alternatives to the formal
|
|
legal or court system, in particular, Neighborhood Justice Centers or
|
|
Community Mediation Centers.S He then names a number of social
|
|
control criticisms. ADR, like formal law, is embedded in
|
|
individualism. This enhances the capacity for its use as social control
|
|
by diverting attention to the grievance of the individual and away
|
|
from the critique of social structures. ADR practitioners attribute
|
|
failures of their processes to the disputants' recalcitrance and not to
|
|
any theoretical inadequacies in the structural premise of the processes.
|
|
Also, ADR seeks to breach misunderstanding rather than
|
|
redress power imbalances, and this limits the role of third parties to
|
|
conducting discussion rather than providing insight into
|
|
underlyingissues. This is tied into the question of neutrality. Where
|
|
imbalances occur, a neutral third party is necessarily an apologist for
|
|
the status quo. Scimecca remarks that the stated ideal of providing
|
|
wider access to justice may have been lost to the need to carve out
|
|
institutional turf and create jobs for professional practitioners, but has
|
|
mixed feelings about this insofar as he believes that a forty-hour
|
|
training period is insufficient to practice conflict resolution. His final
|
|
critique, linked to the one on individualism and perhaps the most
|
|
important, is that ADR represents not so much an alternative to the
|
|
courts as an alternative to community organizing and to politics itself,
|
|
lacking, as it does, organic connection to communities.
|
|
Christine Harrington, in _Shadow Justice_, provides more
|
|
specific evidence of ADR's social control function. She begins her
|
|
work by discussing the modern court reform movement and its
|
|
motivation. This movement is variously known as "ADR,"
|
|
"informalism," or "delegalization." She considers its motivation to be:
|
|
the criticism of lower courts for inhibiting minor offenders' access to
|
|
justice and the claim that some disputes are so complex as to require a
|
|
more flexible response than that provided by the adversarial system.
|
|
Images of the state withdrawing its supervision over minor disputes,
|
|
and of local communities asserting control over their own affairs are
|
|
presented as the idealized portrait of informalism, but she contends
|
|
that the sociological evidence, particularly the Kansas City
|
|
Neighborhood Justice Center experience, shows otherwise. The
|
|
"target community" of the KCNJC, interestingly enough, is defined in
|
|
terms of a certain police jurisdiction. She remarks, "The coercion and
|
|
authority of police, prosecutors, and judges are essential elements to
|
|
the institutional existence of neighborhood justice centers."
|
|
The "alternatives" movement has transformed traditional legal
|
|
ideology (formalism) by creating a new basis for legitimacy
|
|
(functionalism) in the processing of minor disputes. The movement
|
|
thus represents a change within the mainstream ideology and not a
|
|
departure from it. The effect of this new basis for legitimacy expands
|
|
the social control capacity of the judicial system by subsuming the
|
|
resources and capacities of the disputants themselves, freeing the
|
|
system to deploy resources elsewhere. Early ADR debates between
|
|
grass-roots organizers and those who were out mainly to reform the
|
|
court appear to have gone to the reformers. Discussion now centers
|
|
around issues of professionalization and certification. Harrington
|
|
quotes the Justice Department Ad Hoc committee's characterization of
|
|
ADR as a movement of "anxious professionals and unwilling
|
|
participants" and maintains that this is so because how-to issues of
|
|
actually running dispute resolution programs have taken precedence
|
|
over demands for social justice. She closes by remarking that the
|
|
alternatives movement seems to have turned away from a social-
|
|
change strategy based upon legal rights and abandoned the courts as a
|
|
resource for political struggle.
|
|
Richard Hofrichter, in his _Neighborhood Justice in Capitalist
|
|
Society_, says much the same as Scimecca and Harrington in his
|
|
demonstration that ADR is social control, but distinguishes himself by
|
|
placing ADR within the context of a social control rationale. He sees
|
|
ADR as a response to the limits of the capitalist state's order-
|
|
maintenance function. Private institutions for moderating conflict and
|
|
reducing tension (families, churches, unions, etc.) are destablized by
|
|
capital's needs for a liquid labor supply and ease of disinvestment. But
|
|
capital (the social class exercising ownership of the means of
|
|
production) has at the same time a contradictory need for politically
|
|
stable and orderly communities so that a reliable consumer/labor
|
|
pool can be reproduced. Traditional forms of order-maintenance are
|
|
reaching the limits of their applicability for a number of reasons. First,
|
|
social destabilization induces a shift in the nature of disorder to which
|
|
the adversarial system is ill-constituted to respond (family fights being
|
|
a prime example from the NJC perspective) and in which it would
|
|
prefer not to involve itself. Second, destabilization leads to greater
|
|
claims by working-class citizens on court resources. Since the courts
|
|
are socialized to maintain middle- and ruling-class interests, these
|
|
working-class claims on the resource are themselves a form of
|
|
disorder, especially if a collective challenge to capital might reveal the
|
|
class bias of the law. Third, people resist forms of order-maintenance
|
|
which they recognize as alien to the community, such as direct force
|
|
or bureaucratic control. In order for the social relations of capitalism
|
|
to survive, they must be secured without the open exercise of power
|
|
or promotion of class interests. The challenge to the capitalist legal
|
|
system, given its social control contradictions, is to translate the
|
|
problems of exploitative social relations into some kind of individual
|
|
pathology, ie getpeople to focus on each other and not on their
|
|
conditions.
|
|
This crisis, the need to legitimate social control, gives rise to a
|
|
new technique that Hofrichter calls the Rinformal state.S Elements of
|
|
this Rinformal stateS include: providing the appearances of everyday
|
|
life, providing people with a sense of control by actively involving
|
|
them in a process, inculcating values of cooperation rather than
|
|
confrontation, moving the normative locus of problem solving from
|
|
public life to private, and engaging in a proactive rather than reactive
|
|
policy. ADR is a development which embodies these characteristics,
|
|
and is being used as a way for the state to bypass the limitations of
|
|
formal law.
|
|
Law, in the liberal tradition, is the attempt to bring objectivity
|
|
to social relations, to construct unity from competing private desires,
|
|
to juxtapose freedom and order, and enable rational, objective
|
|
decisions. It is, Zenon Bankowski claims in _An Anarchist Critique of
|
|
Law Exemplified_, a fruitless project. The rule of law is morally
|
|
suspect in that it locates the responsibility for important decisions
|
|
outside the individual and gets her to do things outside the range of
|
|
decisions she is allowed to make. This makes her into what he calls an
|
|
Rautomatic mover,S a person of debilitated moral agency. The
|
|
objective generalization of norms (law-making) seeks to connect
|
|
people by abstract contractual relations and not through any basis in
|
|
love or community. The opportunity to live in a world where one can
|
|
act out of rational feeling and not out of a priori contractuality is
|
|
important to satisfying the human moral instinct. As Tifft and Sullivan
|
|
put it in The Struggle to be Human, to expect law to give meaning to
|
|
the human struggle for a moral existence is to state that the human
|
|
person is superfluous. Law becomes unstable as individuals seek to
|
|
realize their true selves and exercise agency.
|
|
Since norm generalization must take place at particular
|
|
instances of legislative and judicial decision, it cannot determine all
|
|
possible outcomes and so must remain susceptible to the exercise of
|
|
choice in application of the norms. This choice is, of course, a locus of
|
|
subjectivity. The universalizing of consequences is seen by some as a
|
|
means to escape this. Much as Karl Popper describes scientific
|
|
objectivity as the internal coherency of the scientific universe, so is it
|
|
held that juridical objectivity can be attained through
|
|
consequentializing rules and selecting among alternate competing
|
|
rules to ensure the internal coherency of the legal universe. However,
|
|
Popper's standard for that coherency is the acceptance of hypotheses
|
|
by the scientific communityQhis famous "science is what scientists
|
|
do" and the juridical theory is similarly reducible to "law is what
|
|
judges do." For the sake of coherency, the system of generalized
|
|
norms must be operated only by the professionalized few; the so-
|
|
called "rule of law" is dead-ended into the rule of men by inherent
|
|
subjectivity.
|
|
The moral necessity of subjective sovereignty and the
|
|
inauthenticity of objective authority combine to disqualify law as a
|
|
producer of real community. Bankowski suggests the embryonic
|
|
egalitarian social formations that appear in times of revolution
|
|
(communes, soviets, etc.) for the study of group settings which
|
|
mitigate social harm and allow people to lead morally authentic
|
|
individual existences. Another sort of inquiry is recommended by
|
|
Frans de Waal. He has for years studied conflict and conciliatory
|
|
behavior among chimpanzees, rhesus monkeys, stump-tailed
|
|
macaques, and bonobos in social settings, and stresses in Peacemaking
|
|
Among Primates that no similar observations have been collected on
|
|
human conflict. The chief lesson drawn from his work is that primates
|
|
regularly make up after they have fought. Chimpanzee females
|
|
knowingly act to mediate male-male conflicts and bring adversaries
|
|
together. These creatures also appear to understand the principle of
|
|
the collective lie and use it to create compromise situations which
|
|
avoid defining winners and losers. Aggression has such a long
|
|
evolutionary history that one must expect such coevolved
|
|
countervailing and buffering social mechanisms to accompany it.
|
|
Human society is structured by this dialectic between
|
|
aggression and affiliation; social differentiation, role division, and
|
|
cooperation are its syntheses. Differentiation leads to the possibility for
|
|
disunity, and the oldest and most widespread method primates have
|
|
for maintaining social cohesion is, of course, hierarchy. Unity and
|
|
equality are hard to mix in a social formation, but some creatures do
|
|
resolve conflict and tension in egalitarian ways. Bonobos, given their
|
|
long hair, nearly upright gait, face-to-face mating posture, and other
|
|
features, are thought by many to bear a close relationship to humans.
|
|
Bonobo females maintain a unified intra-female social order without
|
|
resorting to a rank structure. Their intense homosexual contacts have
|
|
been implicated as a possible mechanism (cf. "Feminism is the theory,
|
|
lesbianism is the practice" from recent human history.) Such examples
|
|
suggest avenues for exploring the principles of unification without
|
|
subordination.
|
|
The sociobiological raw material for peacemaking appears to
|
|
be the same for all five species discussed. The extent and manner of its
|
|
exploitation may be accounted for by developmental and
|
|
speciocultural differences. Scientific generalizations about this raw
|
|
material's manifestation in humans, unfortunately, are lacking. de
|
|
Waal cites two factors hindering the realization of human conflict-
|
|
resolution potential. One is that people become self-conscious and
|
|
attempt to modify their behavior when it is being recorded. New
|
|
methodologies for making controllable observations are needed. The
|
|
second is that most conflict research has the agenda of finding ways to
|
|
stamp out aggression rather than finding ways to canalize or integrate
|
|
it into life. Just as animals are not slaves to instinct, humans are not
|
|
automatons of reason; so, reconciliation should not be viewed as the
|
|
triumph of reason over instinct. The evolved psychological
|
|
mechanisms for peacemaking must be studied and made accessible.
|
|
For Scimecca, ADR is not conflict resolution. In using his
|
|
narrowed definition of ADR, he is able to differentiate between
|
|
alternate approaches to conflict itself, something which both
|
|
detractors and supporters of ADR have failed to do. In seeking to
|
|
elucidate a theoretical base upon which the resolution of conflict may
|
|
rest, he cites the work of the Center for Analysis of Conflict in London
|
|
which takes the premise that there are certain universal human needs
|
|
which, when unmet, form the roots of conflict. Conflict, so it seems,
|
|
will persist until these needs are analyzed and addressed. Its research
|
|
has shown them to be:
|
|
|
|
1. A need for consistency in response
|
|
2. A need for stimulation
|
|
3. A need for security
|
|
4. A need for recognition
|
|
5. A need for distributive justice
|
|
6. A need to appear rational and develop rationality
|
|
7. A need for meaningful responses
|
|
8. A need for a sense of control
|
|
9. A need to defend one's role
|
|
|
|
He points out ADR's lack of any theoretical understanding of
|
|
conflict. This, indeed, is why it is calledRdispute resolutionS rather
|
|
than conflict resolution. The justification for its use stems from the
|
|
legal tradition and not from a human-needs perspective.
|
|
III. Quotation is a linguistic device for showing that a thing exists
|
|
in a world apart from the reality of its textual surroundings, and this is
|
|
why I have followed Scimecca's lead in writing RADR.S The term
|
|
"alternative" makes sense only within the purview of the state, since
|
|
the state holds a monopoly on the legitimation of what conflict is and
|
|
how it is handled. Labelling a thing as RalternativeS instead of framing
|
|
it in its own positive terms is a containment strategy, a way of
|
|
linguistically encapsulating potentially oppositional thought and
|
|
leaving it stranded in the mainstream. Scimecca all but spells this out
|
|
when he describes the range of practices referred to as ADR by the Ad
|
|
Hoc committee, and this is what prompts him to offer his own
|
|
definition. The definition itself does not quite go to the heart of the
|
|
social-control question, because it does not consider what social
|
|
control is, how it is exercised, or offer a rationale as to why ADR is
|
|
preferred to more overt forms. He passes up the opportunity to
|
|
identify the state as the ultimate agent of social control, sparing that
|
|
criticism perhaps out of his regard for the trained professional
|
|
intervenor. His reservations on professionalism clash both with his
|
|
own critique on individualism and with the capacity for mediation
|
|
evidenced by primate nonprofessionals. But Scimecca's definition does
|
|
what he says it does. It allows him to critique ADR in a way that
|
|
serves as a springboard for presenting needs-based conflict resolution,
|
|
and this is his greatest contribution.
|
|
Harrington plays a familiar role as the good little liberal trying
|
|
to make the best of a bad system by working for change within it. She
|
|
seems to view ADR as a good idea gone awry, and neglects to
|
|
explore the dynamics that necessitate this Rinformalism.S There is
|
|
certainly room for her to be more inquisitive; has the alternatives
|
|
movement Rturned awayS from political struggle, or has the state
|
|
turned it away? It is not clear how she would like to see the situation
|
|
rectified, but she appears to favor a politicization of legal activity on
|
|
behalf of lower-income people. Perhaps this would not be a bad
|
|
development. Placing cogent, class-based demands on the judicial
|
|
resource could serve to stress the system further and clarify its
|
|
contradictions.
|
|
For Hofrichter, of course, ADR is itself a contradiction in that
|
|
its forms seem autonomous but must remain beholden to the
|
|
legitimating sufferance of the state. It is unclear to what extent
|
|
Hofrichter is critical of the state qua state, or sympathetic to true
|
|
autonomy for social-ordering tasks. He makes it clear, though, that
|
|
capital is in an awkward position with ADR, as it might contain the
|
|
seeds of a credible threat to the legitimacy of its use as social control.
|
|
Law and the state obviously predate capitalism by a few
|
|
centuries, so their features are not always imputable from capitalist
|
|
economics. Capital restructures or subsumes features of both as it
|
|
encounters the need. The law, we are told, is an objective means
|
|
whereby individuals can resolve their disputes, and this idea is still
|
|
prevalent and valid in the minds of most people. Capital, on the other
|
|
hand, needs the order-maintenance capacity of the state and its legal
|
|
apparatus to protect itself from the reality of the unstable economic
|
|
environment that it creates. Role differentiation
|
|
(formalism/functionalism) resolves this impasse. Subsumption is
|
|
effected by relegating dispute resolution tasks to various informal
|
|
processes (labor arbitration and other ADR forms, while not
|
|
specifically discussed here, are nevertheless unifiable under this
|
|
analysis) and by consolidating the role of the courts as the means for
|
|
processing actual enemies of the state. In short, private disputes are
|
|
farmed out to non-court agencies and the court itself becomes more
|
|
and more of a cop shop.
|
|
Is that bad? A fair question. One would certainly think so,
|
|
arguing from a liberal perspective that the state's job is to help resolve
|
|
problems and not just contain them. More productively, one could
|
|
view functionalism/informalism both as an opportunity to create a
|
|
basis for community consciousness and as a chance to develop
|
|
resistance-minded social formations that could lead to more lasting
|
|
change.
|
|
The anarchist critique of objective authority parallels the
|
|
primatologists' descriptions of hierarchical order-maintenance.
|
|
Bankowski does more than simply underscore the realization that
|
|
instruments of the state are ultimately instruments of the class that
|
|
operates the state. He declares that law's contractualized social order
|
|
would be unacceptable even if it could exist. The crux of the anarchist
|
|
attack on law is, quite simply, Rwho wants to live in a world where it
|
|
doesn't matter if you are good?" Legal linkage has an insidious
|
|
implication for the integrity of informal processes. The deprivation of
|
|
the disputants' agency threatens the original self-ordering premise and
|
|
leaves personal responsibility for moral choice unfulfilled. This raises
|
|
suspicion as to the true ownership of the agreements reached.
|
|
de Waal's evidence on the extent of peacemaking behavior in
|
|
stateless and lawless social formations does not provide us with all we
|
|
need to know, but it does effectively put the lie to the Hobbesian "war
|
|
of all against all" and serves to undermine the so-called "social
|
|
contract" which law is constantly citing as its rationale for unification
|
|
through subordination. At present, one cannot generalize intelligently
|
|
about the possibilities for human conflict resolution which might
|
|
come from the type of further study advocated by de Waal. Hopefully
|
|
the emancipatory trappings of ADR will help set a direction for truly
|
|
productive inquiry.
|
|
The social-ordering practices which come forth from
|
|
revolutionary, conflict-resolution, and anthropo-primatological
|
|
research will probably not be classed as ADR. We should hope not.
|
|
So long as Alternative Dispute Resolution retains the status of a proper
|
|
noun, or worse, an acronym, it mocks the meaning of the three
|
|
English words. Properly speaking, formal law itself is an alternative.
|
|
Informal practices, as presently constituted in "ADR," not only are
|
|
susceptible to the social-control criticism, but must continue to be as
|
|
long as they remain creatures of the state, as long as they lack positive
|
|
definition rooted in self-ordering autonomous communities.
|
|
|
|
|
|
|
|
Bankowski, Zenon
|
|
An Anarchist Critique of Law Exemplified
|
|
Legality, Ideology, and the State Sugarman, David (ed)
|
|
London; New York: Academic Press, 1983
|
|
|
|
Harrington, Christine B.
|
|
Shadow Justice: the Ideology and Institutionalization of Alternatives to Court
|
|
Westport, CN: Greenwood Press, 1985
|
|
|
|
Hofrichter, Richard
|
|
Neighborhood Justice in Capitalist Society: the Expansion of the Informal State
|
|
New York: Greenwood Press, 1987
|
|
|
|
Scimecca, Joseph
|
|
Conflict Resolution and a Critique of RADRS
|
|
Criminology as Peacemaking Pepinsky, Harold (ed)
|
|
Bloomington, IN Indiana University Press, 1991
|
|
|
|
Tifft, Larry and Sullivan, Dennis
|
|
The Struggle to be Human: Crime, Criminology, and Anarchism
|
|
Sanday, Scotland: Cienfuegos Press, 1980
|
|
|
|
de Waal, Frans B. M.
|
|
Peacemaking Among Primates
|
|
Cambridge, MA Harvard University Press, 1989
|
|
|