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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