textfiles/politics/SPUNK/sp000123.txt

Social Control vs. Human Needs: 

The Practice and Promise of Alternative Dispute Resolution

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

	The judicial alternatives movement encompasses such non-court
programs as divorce mediation, labor arbitration, rent-a-judge, and
neighborhood justice centers. Those who act as mediators and arbitrators
range from high school graduates to retired judges, depending on the type of
program.  The idea is to divert certain cases from the formal, adversarial
court system and reduce the court backlog of cases, save money, and improve
citizensU access to justice.
	 This movement is seen by some as an 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. The above programs are all, if not state-sponsored, then at
least state-sanctioned. What could this mean to an anarchist?  I would like
to take a look at  ADRUs supposed liberatory potential; ie does it 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?
	 What are some of the social-control accusations? ADR seeks to
breach misunderstanding rather than deal with power imbalances, and
this limits the role of third parties to conducting discussion rather than
providing insight into underlying issues. Where such imbalances occur, a
neutral third party is necessarily an apologist for the status quo.
	 Early ADR debates between grass-roots community-justice
organizers and those who were out mainly to reform the court seem to have
gone to the reformers. Discussion now centers around issues of professional
standards and mediator certification. Even  the US  Justice Dept  calls ADR
a movement of Ranxious professionals and unwilling participants,S
probably because how-to issues of actually running dispute resolution
programs have taken precedence over demands for social justice. 
	 According to the ADR advocates, if their processes fail it is
because the disputants are uncooperative and not because the processes
might be flawed.  So, like formal law, it 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 criticism  of
social structures. 
Linked to this is the critique that ADR represents not so much an
alternative to the courts as an alternative to community organizing and to
politics itself, since it lacks organic connection to communities.
	 Visions of the state withdrawing its supervision over minor
disputes, and of local communities asserting control over their own affairs
come to mind when one thinks of  Rneighborhood justice,S  but experience
shows otherwise. ItUs interesting  that the Rtarget communityS of the
Kansas City Neighborhood Justice Center  is defined in terms of a certain
police jurisdiction. According to one researcher, RThe coercion and authority
of police, prosecutors, and judges are essential elements to the institutional
existence of neighborhood justice centers.S
	Why ADR? Why arenUt other forms of social control good enough?
Private institutions for moderating conflict and reducing tension (families,
churches, unions, etc.) are destabilized by capitalismUs  need for a mobile
labor supply and ease of disinvestment. The capitalist class has at the
same time a contradictory need for politically stable and orderly
communities so that a reliable consumer/labor pool can be reproduced, but
traditional forms of order-maintenance are reaching the limits of
applicability. Social destabilization and increasing disorder lead 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.  In
order for the social relations of capitalism to survive, they must be secured
without using forms of order-maintenance which people recognize as alien
to the community, such as direct force  or bureaucratic control.  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 get people to focus on each other
and not on their conditions.
	This crisis, the need to legitimate social control, gives rise to what
we may  call the Rinformal state.S  It props up the social control capacity of
the judicial system by involving   the disputants themselves in the control
process, freeing the system to deploy resources elsewhere. Among other
things, an Rinformal stateS  provides the appearances of everyday life and
encourages people to cooperate with the system rather than confront it. 
ADR is a step in this direction, 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
combine freedom and order, and enable rational, objective decisions. But the
rule of law is morally suspect in that it removes responsibility for
important decisions from the individual and gets her to do things outside
the range of decisions she is allowed to make. This makes her into an
Rautomatic mover,S a person of debilitated moral agency. Laws seek to
connect people by an abstract system of obligations  and not through any
basis in love or community. The opportunity to live in a world where one can
act out of rational feeling, not out of some prior obligation, is important to
satisfying the human moral instinct.  Law becomes unstable as individuals
seek to realize their true selves and exercise agency.
	Since lawmaking must take place at particular instances of
legislative and judicial decision, it cannot determine all possible outcomes,
and there must be room for choice (subjectivity) in application of the laws. 
That is no good; so just as Karl Popper describes scientific objectivity as the
internal coherency of the scientific universe, some claim that legal
objectivity can be found through tracing  rules to their logical consequences
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 community  -his
famous Rscience is what scientists doS- and the legal theory amounts to
Rlaw is what judges do.S  For the sake of coherency, the judicial system can
only be run by the professionalized few; the so-called Rrule of lawS 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.  
	Having discarded law, what means of social ordering are left?  The
embryonic egalitarian social formations that appear in times of revolution
(communes, soviets, etc.) would be useful for the study of  group settings
which mitigate social harm and allow people to lead morally authentic
individual existences.  I suggest also that we look into the social behavior
of creatures similar to ourselves.
	I am no respecter of  distinctions between the social sciences and the 
natural sciences. 
Not everyone considers it valid to use examples of nonhuman behavior for 
ideas about people;  but that is no issue at all in aboriginal societies, and it
did not stop Kropotkin from doing so with ants. To bring depth to a field of
study, one must at some point  accept contributions from outside the
traditional boundaries of the field; so I am now going to mention the study
of conflict among apes  for some promise that peace and order in a stateless
society is possible. 
	The chief lesson drawn from such 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 buffering social mechanisms to accompany it.
	Human society is structured by this interplay between aggression
and affiliation; social differentiation, role division, and cooperation are
some of what results. Differentiation leads to the possibility for disunity,
and the oldest and most widespread method 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. The intense homosexual contacts of bonobo females have
been considered as a possible explanation for how they maintain a unified
intra-female social order without resorting to a rank system.  Such
examples suggest avenues for exploring the principles of unification
without subordination.
	Scientific generalizations about human peacemaking,
unfortunately, are lacking. There are a couple  things preventing a full
description of human conflict-resolution potential. One is that people
become self-conscious and attempt to modify their behavior when it is being
recorded. New methods for making reliable observations are needed.
Another reason is that most conflict research has the agenda of finding
ways to stamp out aggression rather than finding ways to  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 pathways for peacemaking must be
studied and made accessible.
	As far as the ADR movement itself; the term RalternativeS 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. 
Calling a thing RalternativeS instead of framing it in its own terms is a
containment strategy, a way of encapsulating potentially oppositional
thought and leaving it stranded in the mainstream.  Both detractors and
supporters of ADR have failed to differentiate between alternate
approaches to conflict itself.  The approach I favor  is that there are
certain universal human needs which, when unmet, form the roots of
conflict. But ADR has no theoretical understanding of conflict. This is why
it is called Rdispute resolutionS rather than conflict resolution. The
justification for its use comes from the legal tradition and not from a human-
needs perspective.
	Law and the courts obviously appeared  a few centuries before
capitalism. We cannot always predict that they will behave according to
capitalist interests. But the capitalist class gradually takes over the
order-maintenance capacity of the state and its legal apparatus to protect
itself from the reality of the unstable economic situation that it creates.  
Dispute resolution tasks are given over  to various informal processes and
the role of law is made explicit as a means for processing actual enemies of
the state; ie 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 might think so, arguing from a
liberal perspective that the state's job is to resolve social problems and not
contain them. More productively, one could view non-court programs 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.  ADR is an awkward development for the state. The
rhetoric of autonomy contains the seeds of a credible threat to ADRUs social
control function, and this is grounds for hope.
	The anarchist critique of objective authority parallels the
primatologistsU descriptions of hierarchical order-maintenance. It is not
enough simply to realize that tools of the state are ultimately tools of
those who run the state; does this mean it would be fine for anarchists to run
the state?  A social order based on legal obligation would be unacceptable
even if it could exist.  Gandhi remarked on the foolishness of trying to
construct a world where nobody needs to be good, and it is just such a world
at which law is aiming. 
	The exact style of peacemaking we see among other primates in
their stateless and lawless social formations may not be the model for us,
but it is good enough to put the lie to the supposed Rwar of each against allS
and serves to undermine the so-called Rsocial contractS which law is
constantly citing as its rationale for unification through subordination. 
	The social-ordering practices which come forth from revolutionary,
conflict-resolution, and 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
RADR,S 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
		 Crimonology as Peacemaking Pepinsky, Harold (ed)
		Bloomington, IN Indiana University Press, 1991
Tifft, Larry and Sullivan, Dennis
		The Struggle to be Human: Crime, Crimonology, and
		Anarchism
		Sanday, Scotland: Cienfuegos Press, 1980
de Waal, Frans B. M.
		Peacemaking Among Primates
		Cambridge, MA Harvard University Press, 1989