💾 Archived View for gemini.spam.works › mirrors › textfiles › politics › SPUNK › sp000123.txt captured on 2022-04-29 at 02:19:47.
⬅️ Previous capture (2022-03-01)
-=-=-=-=-=-=-
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