Chapter 11. Participatory justice
11.1. Civilization of conflicts
Once upon a time, most roads for innovation within the field of criminal policy were one-way roads. It was more or less taken for granted that ideas first appeared in the most industrially developed countries, and then gradually spread to the less highly industrialized ones. Experts from Europe or the United States of America travelled to Africa or to Asiatic countries to convey the message; reports on Scandinavian prisons were export articles. This still goes on, but with some marked changes. Some of the representatives from some of the highly industrialized countries are no longer all that sure that they have a message, or at any rate the whole message. It is in this situation that the roads for ideas have changed over to two-way traffic. If anything is clear, it is that several of the less industrialized countries have to a large extent applied civil law where we apply criminal law. Especially in societies that lack a strong central power, where the State is a weak one, or where the State representatives are far away, people are forced not to apply force.
What do they do instead?
First, it is important not to presuppose that conflict ought to be solved. The quest for solution is a puritan, ethnocentric conception. For most of my life I have taken it for granted that the outcome ought to be a solution, until I was kindly made aware of my limited perspective. Then for a while I clung to an alternative concept: "conflict management". Again a narrow, ethnocentrically determined choice. To manage, the word is related to the Italian expression to train a horse for the mančge, or in our time, managers, the word for those who direct other people. It is very far from a participatory term. Conflicts might be solved, but they might also be lived with. "Conflict-handling" is probably a better term. "Conflict participation" might be the best. That term does not direct attention to the outcome, but to the act. Maybe participation is more important than solutions.
Conflicts are not necessarily a "bad thing". They can also be seen as something of value, a commodity not to be wasted. Conflicts are not in abundance in a modern society; they are a scarcity. They are in danger of being lost, or often stolen. The victim in a criminal case is a sort of double loser in our society. First vis-ā-vis the offender, secondly vis-ā-vis the state. He is excluded from any participation in his own conflict. His conflict is stolen by the state, a theft which in particular is carried out by professionals. I have applied this perspective in an article "Conflicts as property" (Christie 1977), and will therefore not go into further details here, except for one quotation, which tries to illustrate the most important loss when conflicts are stolen (p.8.):
This loss is first and foremost a loss in opportunities for norm-clarification. It is a loss of pedagogical possibilities. It is a loss of opportunities for a continuous discussion of what represents the law of the land. How wrong was the thief, how right was the victim? Lawyers are, as we say, trained into agreement on what is relevant in a case. But that means a trained incapacity in letting the parties decide what they think is relevant. It means that it is difficult to stage what we might call a political debate in the court. When the victim is small and the offender big in size or power -- how blameworthy then is the crime? And what about the opposite case, the small thief and the big house-owner? If the offender is well educated, ought he then to suffer more, or maybe less, for his sins? Or if he is black, or if he is young, or if the other party is an insurance company, or if his wife has just left him, or if his factory will break down if he has to go to jail, or if his daughter will lose her fiancé, or if he was drunk, or if he was sad, or if he was mad? There is no end to it. And maybe there ought to be none. Maybe Barotse law as described by Max Gluckman (1967) is a better instrument for norm-clarification, allowing the conflicting parties to bring in the whole chain of old complaints and arguments each time.
Again we are close to a most important difference between the neo-classical approach in penal law, and a general aspect of participatory justice. In penal law, values are clarified through a gradation of the inflicting of pain. The state establishes its scale, the rank-order of values, through variation in the number of blows administered to the criminal, or through the number of months or years taken away from him. Pain is used as communication, as a language. In participatory justice, the same result -- the clarification of values -- is accomplished in the process itself. Attention is moved from the end-result to the process.
11.2. Compensatory justice
But civil law is of course not just participation and words. Acts are supposed to follow. If things are wrong, they must be righted. Peace must be reinstituted. Particularly the victim must be compensated. In all systems without a strong state, victim compensation seems to be the major solution. It is what social anthropologists to a large extent report on. It is what legal historians describe. And it is the system we apply ourselves when we have hurt other people and feel, or are brought to accept, that we have to put things right.
Victim compensation is such an obvious solution and used by most people in the world in most situations. Why is it not used at the state level in highly industrialized countries? Or at least, why do we not immediately, with added insight, extend the system of victim compensation, and let the domain of penal law diminish? Three reasons often given are close to the obvious. Let us look at them in turn.
First it cannot be done in societies of our type. Ours are societies of specialization. We need experts to handle crime. I will soon go into this problem in greater detail. Here it suffices to mention that not all social arrangements are there because they are necessary. They might also be in existence because it once was a good thing for those with power that they should come into existence. Later, the arrangement continues by the very fact that it also serves other interests. The servants of the courts are well served by themselves. So are also their auxilliary personnel.
Secondly; Compensatory justice presupposes that compensation can be given. The offender must be able to give something back. But criminals are most often poor people. They have nothing to give. The answers to this are many. It is correct that our prisons are by and large filled with poor people. We let the poor pay with the only commodity that is close to being equally distributed in society: time. Time is taken away to create pain. But time could be used for compensatory purposes if we so wished. It is an organizational problem, not an impossibility. Furthermore, it is not quite true that prisoners are that poor. Lots of young apprehended criminals have the usual range of youth gadgets; bikes, stereo-equipment, etc. But the law and those running it are surprisingly hesitant to take any action to transfer any of these belongings from the youngsters to the use or benefit of the victim. Property rights are better protected than rights to freedom. It is simpler to take away a youngster's time than his bike. Property rights are important to us all. Imprisonment is highly improbable for the ordinary citizen. In addition, those medieval sinners who were dealt with through systems of civil justice were not always all that rich. Herman Bianchi has in an article (1979), and also in lectures, described how sanctuaries functioned in those days. Churches and monasteries functioned as places where offenders could not be touched. Thus they became bases for discussions between representatives of the offenders and victims about guilt and compensation. A killer might be forgiven if he promised to pay 1000 guilders. He was then free to leave the monastery. But it might later become clear that he was not able to pay the 1000 guilders. In this case he was also a bad man, but less so. He was now converted from a killer to a debtor. New discussions might follow, and the parties might agree to reduce the debt to a size that could realistically be paid. A little to the victim was better than the life of the criminal to the state. Offenders completely unwilling to compensate were slowly and subtly pushed down in rank and comfort within the sanctuaries, and eventually out of them as refugees to other countries, or as crusaders in the combined fight for Christianity and trade privileges. Herman Bianchi is now engaged in attempts to re-establish sanctuaries in Amsterdam. That is one of the few original ideas within our field in the latter part of this century.
But here comes the third objection: this would lead to the most terrible abuses. The strong victim would squeeze the poor offender out of all proportion, or the strong offender would just laugh at the victim if compensation were mentioned. Or vendettas would threaten. Victims and their relatives or friends would take the law into their own hands, and the offender and his gang would do the same. Violence would not be limited to the mafia but spray its mischief all over the system. It is exactly to prevent this anarchy that we have, so to speak, invented the state. And again there are counter-arguments: Many crimes take place between equals. Abuses in the compensatory process are not all that probable. Furthermore, in a process of participatory justice, the offender and the victim are not left in limbo. Their discussion must be a public discussion. It would be a discussion where the situation of the victim was scrutinized, where every detail regarding what had happened -- legally relevant or not -- was brought to the court's attention. Particularly important here would be detailed consideration regarding what could be done for him first and foremost by the offender, secondly by the local neighbourhood, thirdly by the state. Could the harm be compensated, the window repaired, the lock replaced, the wall painted, the loss of time because the car was stolen given back through garden work or washing of the car ten Sundays in a row? Or maybe, once this discussion was started, the damage would not seem so important as it looked in documents written to impress insurance companies? Could physical suffering become slightly less painful through any action on the part of the offender, during days, months or years? And in addition: had the community exhausted all resources that might have offered help? Was it absolutely certain that the local hospital could not do anything? What about a helping hand from the janitor twice a day if the offender took over the cleaning of the basement every Saturday? The situation of the offender would have to be analyzed in the same way. This might expose needs for social, educational, medical or religious action. Not to prevent further crime, but because needs ought to be met.
And to all the objections: why should the impossible cases hinder a decent solution where decency is possible? Why not restrict the area for punishment to the utmost by actively taking away all those cases that might be taken away? Let us construct conciliatory bodies. Let variation blossom when it comes to the selection of personnel, rotation, training, etc. Let us just remember some of the basic lessons from their predecessors: Let us make them vulnerable. Let us not give them power. Let them not become experts. Let them not become distant.
We should have to see it that by and large they were equal to those they had to conciliate and also that they would be living with them. Instead of justice created by a veil of ignorance as suggested by Rawls (1972) this would become justice created through the knowledge that one would have to live with the consequences of the decisions for a long time to come. Such bodies will not be able to handle everything. The state will not wither completely, but will decline a little, one hopes. How far we can go, will be a question of experience. But we cannot move without a goal. The goal must be pain-reduction. Within law as within the other institutions of society. Louk Hulsman once gave a lecture in Oslo with the title: "Penal law as a social problem". From that formulation it follows clearly that the territory of penal law has to be delimited to the utmost extent.
In the long run it will be a question here, as in other main areas in society, of organizing things in such a way that the common people become participants in those matters which are of importance to them instead of just onlookers; or that they become the producers of solutions and not mere consumers. It will be important for us to grope our way forward towards solutions which compel those involved to listen instead of using force, to search for compromise instead of dictates, solutions which encourage compensation instead of reprisals and which, in old-fashioned terms, encourage men to do good instead of, as now, evil.
11.3. Punishment as mourning
There are dangers in the message of civilization of conflicts. This becomes clear if we remember Geoffrey Goorer's analysis of the taboo against mourning. Modern, rational society makes death a modern rational thing. Therefore it also puts a ban on excessive mourning. Anger is no less real than sorrow. It is no less legitimate. Any attempt to civilize conflicts and take pain away might fall under the critique of repressing important elements of life. This book might easily be one more of those taking core activities away from human beings and social systems.
Let me attempt to counteract such an effect by accepting the expression of immediate anger at the point where mine or other people's rights are hurt. But let us then move one step further. Let us think in analogy with sorrow. If punishments were to be used, they ought to be of a type with important similarities to acts following sorrow. That would establish other important limits to the application of pain:
First, sorrow is to a large extent a personal matter. Professionals might take part; the funeral bureau, the priest, maybe some musicians or a chorus. In some cultures, people are hired to express mourning. In Norwegian we called them "gråtekoner", that is "weeping ladies". In English they were called "professional mourners". It is an interesting feature of modern life, that these societies, where we use to say that everything has been professionalized, are the very societies where the professional mourners have gone out of business. Modern funerals could very seldom be thought of without those close to the deceased in the centre of the proceedings. When the King dies, State officials would also be in the centre. But in that case, it was the Nation that mourned. When an ordinary person dies, it is still the relatives. In civil court cases, you can hire a representative. Not in funerals, if you are close to the deceased. Either you are there, or you are not.
Secondly, sorrow is an emotional matter. Not too much, not too long. But when the coffin disappears in earth or oven, then we are allowed to show emotional strain. Again controlled, but not completely. We are allowed to express grief, and expected to do so. Crocodile tears might be produced at enemies' funerals. But that very performance underlines the legitimacy of the real and natural ones.
Thirdly, mourning is an act without purpose. This is right, and of course also completely wrong. Mourning has personal and social functions. Denied access to mourning, people as well as social systems fall into pieces. The expression of grief and sorrow makes continuation possible. We all know. But we do also know that if the expression of sorrow is made with a purpose, then the expression freezes in our throats. This is what makes a state-funeral of a not so loved person into a not so lovely occasion. Sorrow is for the sake of sorrow. This does not prevent us from using sorrow to gain advantages. "You have to stay with me, since I am so sad". Or more common: "If you misbehave, I will be very, very sorry". This is a utilitarian grief, well known through its usefulness, but also despised as a profanation of an emotion known as important to all with something dear to lose.
Loss might lead to sorrow, and mourning. It might also lead to anger, and punishment. There are of course important differences in the process. Mourning does not necessarily have any target, anger converted into punishment has. But there are also similarities. And my point is that the more the anger -- expressed through punishment -- is given a form with similarities to mourning -- the less objectionable I would find the activity. It is a sort of limiting analogy I am attempting to establish. If pain is to be given away, it is only acceptable in a form with structured similarities to mourning.
Concretely: punishments seem more acceptable the more personalized they are, the more emotions they allow for, and the less they are perceived in a utilitarian perspective. If I inflict pain, it must to the largest possible extent be me, in emotions, and with pain as the purpose. Not a representative, calm, and with a purpose beyond the expressive one.
What I am describing here, is often classified as an "absolute theory of punishment". Absolute, because no reasons are given. You punish because you punish, just as you are sad because you are sad. An absolute theory of punishment is completely out of fashion among modern penal thinkers. It gives no reason, shows no utility. I like the theory because of that. If there were no purpose behind the pain, it would be more of a clear moral matter. The parties would have to think again and again whether pain was right. Not whether it was necessary, but right. The chances are great, that the more they thought, the less they would find it right. Reflection would exile anger. The norm-transgressor would be confronted, and might counter-attack. The procedure for punishment would be transformed into a dialogue. We should be back to civil proceedings.
But it is not by chance that absolute theories of punishment are out of fashion, and that the dominant penal theories of our time are of the utilitarian type, with pain as treatment or pain as a deterrent. This is all a true reflection of our societies as often presented to us: Societies of calculating individuals, deeply embedded in the exchange of commodities to maximize individual benefit. We have distant democracy, well suited to a distant penocracy, well suited to serve a large-scale society using taximeters to control the price of all acts. Nothing could be more in harmony with a marked model of exchange than neo-classical thinking around just deserts. A just measure of pain. A proper prize. As we grow more and more international, we will also here establish a world market.
Also in organizational form, our present system of punishment is a pretty good explication of major features of present society. Ours is a society of clients, one where we are represented by others, one where others investigate, debate and decide. Why should we not be clients as victims when we are clients in so many other life spheres? Why should we not let other people receive both money and gratitude to inflict pain on the wrongdoer when we do not really know him, and probably never will. Why should we not buy punishment, when we buy health and happiness?
The reasoning above leads close to the conclusion that punishment as mourning is an impossibility in a society of our type. Which is all right. But also all wrong. We know, all of us, that there is more to our lives than markets and calculation. We have friends for friendship, fall in love for no rational reasons, behave as beasts or heroes even when we know it will not profit us. We talk about markets and calculation, but know pretty well that markets and calculation could not function if there were not a back-stage in operation where words such as communal spirit, totality, solidarity and trust were the important ones. At that backstage, absolute theories of punishment would probably be a natural feature. Here it would be a question of expressive acts, not goal-oriented ones. It would be punishment as an outcry, not as rational behaviour to take care of something.
In reality, I think that a lot of punishments today have their motivational base at this back-stage. But they are carried out by paid functionaries, which forces theoreticians to give reasons acceptable at the open, utilitaristic front-stage.
When reading or discussing with Andenæs (1950, 1977), Mäkelä (1975) and their followers, I do increasingly get the feeling that we might find common ground if we all dared to embark on a debate on solidarity, social demands, cohesion and other elements which made a society into more than the sum of individuals and rational acts. Advocates for general prevention have -- and more so than advocates for treatment -- important sociological elements behind their reasoning: We might sometimes be able to create doubts concerning the general preventive effects of a certain type of punishment. But we will seldom be able to convince the believer, because behind the general preventive idea is another idea, one that says that something has to happen when wrongs have occurred, something in analogy with mourning. In other words, many arguments in favour of pain delivery as a necessity for general prevention or deterrence, might be elements of an absolute theory of punishment in disguise.
These views must not be pushed too far. Theories of general prevention or deterrence have to be evaluated on the basis of their own stated merits, and in the extreme versions such as removing all police or imposing death sentences for traffic offences, they have obvious merits. All I suggest, is that there is more behind some parts of the claims for punishment than stated in the simplistic, utilitarian version. And it is important to get that "more" out into the open, make it explicit, and start a debate on it. Pain delivered as a measure of general prevention can be controlled in a neo-classical system of justice. But as argued earlier, this is a primitive system of control with unwanted side effects. If at least parts of the activities are related to an absolute theory of punishment, this might open the way for new discussions of the needs for pain, and of forms of control of the pain. Our situation is one where incentives for "an absolute type of punishment" are transformed into a system suited for handling utilitarian punishments. This leads to a perpetual dissatisfaction with law and order in society. The gesellschaft-structure or market-structure of society is cared for, but the gemeinschaft-structure is undernourished. Within penal law, this leads to an ever-lasting demand for more punishments carried out by representatives who -- rightly in the impossible situation in which they are placed -- perceive themselves as a buffer between a savage population filled with a lust for vengance, and some misfits in need of protection against receiving too much pain. This situation adds to a basic instability in societies of our type.
What then, are the consequences of this analysis?
Let me suggest two.
First, pain delivery in western society is not carried out in a form with structural similarities to mourning. It is motivated by anger, but expressed through representation. This explains probably why the volume of pain delivery can vary so much from time, to time, and between societies. The amount -- as well as the activity in general -- is not so closely linked to the informal web of interaction within western societies that variation in volume matters. The paid representatives -- judges, prison officers, prison administrators, parole directors -- build up various systems for pain delivery. In this process they are of course influenced by numerous reasons other than those related to any calculation of which volume of pain delivery would be the "right one". But this means at the same time that we would be more free to work for a reduction in the volume of pain delivery within the framework of certain forms of absolute theories of punishment.
Secondly, if punishment were to be accepted, it would have to be of the expressive type related to mourning. Then a whole row of new questions would have to be raised: Was the punishment one where ordinary people -- including the victim -- took part in all aspects of the decision? Did they take part in the actual execution of the punishment? Did they all -- one after the other -- carry out the work inside the penal establishments? How much did everybody in society know about all the details? What could be done to increase knowledge? Might local TV be brought into local courts and punishment institutions all over the country? If one hesitated to bring in local TV, ought they not instead to hesitate to bring in punishment? If pain is too bad to be executed by everybody, and seen by everybody, is it not because it is too bad? If the purpose of pain was pain, was it then arranged so that this became crystal clear to everybody.
If we brought it close, we would become participants, sometimes accomplices. That would be when it did not feel right, when we, for example, knew the offender, or the victim, or the situation or similar situations and saw that this was not a case where pain was right. It would create an opening for that fundamental discussion of moral matters where norm-clarification would become the central task.
But with these new questions, and bearing in mind those conditions discussed in Chapter 10, we are probably able to see that absolute theories of punishments in a society based on participation and not representation, might easily lead to a society of pain-reduction. It is absolute theories of punishment disguised as utilitarian which in a society of representatives creates the strong incentives towards using pain. An absolute theory, seen as absolute, and executed by those close to the scene of misbehaviour, would not by any necessity have the same effect. An absolute theory of punishment, applied between equals standing close to each other, would in this concrete application most probably be converted into a civil conflict.
11.4. The informal economy
This book is not based on any belief that ideas change the world. Not ideas alone. But ideas might help to change it, when other conditions are right.
There are some obvious needs for experts on behaviour control in a society like ours. Several complexities of our time are of a magnitude that cannot be handled by ordinary people in ordinary, fragmented social systems. There are also enormously powerful centralizing forces in operation, particularly fostered through the military establishments and by the effects of international organizations for trade and industry. Participatory justice becomes unreal if societies, to make ready for catastrophe, become organized in a monolithic pattern, where action is based on orders, not choice, and where any experiment is seen as dangerous living in an equilibrium based on brinkmanship.
But there are also other forces in operation. I described some of them in Chapter 9.3. as subterranean patterns, and in 9.4. as counter cultures. Let us now move one step further.
Exactly half of the Norwegian population belongs to the work force, in the meaning of having paid work. The other half is outside, provided for in some form or another. And it is that latter half which is on the increase, in Norway as in all highly industrialized countries.
Stepwise, we have in countries of this sort been through four important stages. First, the primary sector -- farming and fishing -- has become mechanized. The number of hands needed has gone down dramatically. That was good for the secondary sector represented by industry. That sector got more competing empty hands, until their level of mechanization reached an unbelievably high level, and their need for workers also diminished. Again good for the third sector -- service, administration, hospitals, universities, which happily absorbed some of the surplus -- until the vengeance from the up to now unindustrialized countries reached us. This is what has just happened. Those societies still in the second and third stage have entered the by now close to completely open market, taken over essential parts of production and left us with a huge service sector to be paid for by the diminishing returns from our national industrial system. At this stage, most highly industrial countries have chosen the same instinctive reaction; they stop the growth of the service sector. Those countries worst off start to diminish that sector also. The post-industrial society is there.
This is not the place for a thorough analysis of this whole development. But what happens has consequences for social control. The whole industrial system is in a process of dramatic change. This is bound to have consequences for the ways people will relate.
For our purposes, it seems useful to describe separately the effects on two major categories; those with paid work, and the other half, that is those without. For the first category, the major effect of relevance to us is the simple fact that he/she will gradually receive less of everything through official salary. The bargaining power is broken. Her or his firm will have to compete with a firm in Korea, in Thailand, in Tanzania. At the same time direct or indirect taxes will increase, and/or the costs of all sorts of public service will increase. It cannot be otherwise, when fewer people within production have to pay for more people outside. The total effects will be diminished returns from officially paid work.
Paid workers get less. At the same time it becomes less common to have an ordinary paid job at all. Unemployment is on a dramatic increase within nearly all countries in the old industrialized world.
So far is common knowledge. And what follows, ought to have been, since it is obvious: Unemployment does not mean that people stop working. To the surprise of some, it becomes clear that there exist other forms of labour than the officially registered one. People lose their employment, but continue to work. Behind the official labour-market is a grey one for the unemployed and for those with insufficient income. Since taxes are so high, the mechanic will fix his friend's car in the evening, sometimes for money, often for nothing that same evening, but then for some return service another day. They are not alone in doing this. As Gershuny (1979) and Pahl (1980), and also the two in combination (1980), have pointed out in stimulating articles, there exists an economy behind the official one, parts of it legal, parts of it half-legal, and parts solidly illegal. This informal economy is growing as a result of the shrinkage of the official economy. There exist behaviour-patterns and exchange relationships with a remarkable resemblance to forms in existence before the industrial revolution. The famous poachers of England are still vividly alive, and vegetables are happily being produced in the back-yards -- for exchange with other non-taxable utilities. As the official rate of unemployment increases in western societies, these informal economic activities are bound to increase in importance. We get two economies. One official, within highly automatized plants and with a taxable profit, which provides a base for a minimum of social security of the type we know today. But in addition, we get the informal one.
By informal economy, I mean something different from what Ivan Illich (1981) calls shadow work. Shadow work is to Illich what has to be done to keep the industrially employed going. It is the wife needed to keep the husband able to go to the factory. But Illich contrasts shadow work with vernacular values or "folk"-values. And that is closer to my theme. The formal economy as we know it through labour-contracts, salaries, tax-deductions, job safety and all those regulations accomplished through centuries of labour actions is for an increasing number of western workers just becoming a non-reality. The plant is moved to Korea or Thailand and the Western worker is back to a situation with provocative similarities to his distant past.
This new, and very old, situation is bound to have consequences for social organization, and thereby for social control. As Pahi (1980) in particular has pointed out, the situation is one where some of the more handicapped groups within the old industrialized societies suddenly might have a particular advantage:
Those categories or strata which have resisted most effectively incorporation into the dominant values of industrial capitalism may be able to survive the problems imposed by the decline of formal employment in the years ahead more easily.
Pahl specifies three groups of unemployed, with those most advantaged at the top:
1. Those with skills and services available for sale or for exchange and who have the local knowledge and contacts to provide access to informal markets.
2. Those with few or no tradeable skills or products but who have access to local networks and have the resources to buy such skills and facilities that they need.
3. Those who have neither skills, knowledge or resources to contribute to the informal economy. In terms of a more traditional system of stratification such a disadvantaged category might fall in the middle of the social hierarchy, being the petty bourgeoisie with some clerical or minor bureaucratic or managerial administrative skill and which has been geographically and possibly also socially mobile. They are isolated from communal resources and do not have enough surplus income to buy their way in.
In other words: it pays to be a member. If the formal economy deteriorates even further, membership will be a necessity for survival. We are anew in the situation most humans always have been in, where participation, trust, communal living and mutual dependence become the central elements in life. These are exactly the conditions where participatory justice might function at its best.
11.5. Justice to the weak?
And what then about weak parties not getting their rights? Oppressed wives whom a board of neighbours did not dare to stand up for, minorities met with prejudice at the local clinic, a clinic the board members might depend on in the future, apartments where children are heard crying constantly, but where no one dare break into the castle of privacy. Would not participatory justice make weak parties even more weak than they are today?
Ordinary professionally staffed criminal courts might function as a protective device and bring justice to the weak if:
- the society was one of inequality with regard to power, but with ideals that weak parties ought to be protected.
- and if the rulers as well as their courts took great care to activate the protective devices.
- and if the society was a transparent one where abuses were easily registered.
- and if the weak parties trusted the courts.
- and if the courts were open to all sorts of complaints, and acted according to the ideals.
This would of course still be a justice accepting the basic inequalities making the weak parties just weak. It would be that the husband should not beat his wife more than she deserved, that blacks should not be arrested for walking through a white community when they had a task to perform there. It is better than nothing, but not quite as much as often stated. But let me repeat it, just to protect the obvious from oblivion; independent courts do represent an important source for the protection of weak parties against abuses of the minimum rights ascribed them.
This then raises important questions on how to accomplish a greater extent of participatory justice, without losing important protective devices within our recent system. Is it possible to construct some sort of neighbourhood justice with the advantages of participation, but without losing the protection of legality? Can the State come in and help the weak parties in a conflict, but help them without taking over the conflict? And what happens when the State itself is one of the parties? Again, any answer to this must of course take into consideration the weak position weak parties have within our existing system.
A related question is how to prevent ideas of civilization and participation from becoming perverted. Recent experiences with "alternatives to prison" indicate that they easily turn into "additions to prison", and that conditional sentences in reality turn into more time spent in prison. The lesson from periods of "treatment for crime" ought also to be kept vividly in mind. If pain delivery is limited, will we then get a rehearsal of the old story? Will new, subtle punishment appear, administered within these seemingly so civil bodies. Sceptics will be greatly needed. So also will independent research, institutionally as well as intellectually protected against embracement by authorities.
This book is not a book on revolution, it is one on reform. Essential questions are whether courts can be more participatory, or whether bodies for conflict handling can be added to the recent structure. A central concern here is to attempt to activate neighbourhoods, which again will make it more known, to the participants, what actually goes on within them. As Ray Shonholtz has expressed it (private communication) on the basis of his experience with community boards in San Francisco, weak parties will generally have a better chance if neigbourhoods become more neighbourly. Maltreatment of wife or children is more easy to hide if the whole family is hidden, than if wife and children have many contacts in the community. Kinberg, Inghe and Riemer (1943) illustrated vividly how this factor operated in cases of father-daughter incest. In isolated families, the father's physical dominance got out of control. Community integration gives weak parties within sub-systems a chance of making their misery known, and also of establishing protective coalitions. If weak parties were to gain, one should probably see to it that the relevant system was not too small, not so small that coalitions were impossible -- and not too large -- not so large that transparency was impossible. I share the feeling of relief and freedom by being among strangers. I am aware of the blessings of a community without community character. But I am afraid there are others who pay the bill.
But of course, integration does not always help. Neighbourhoods might organize against minorities. Participatory justice might thus mean increased strength to the oppressor. This raises enormously complex problems that I will not go into, except for two remarks. First, few among us would claim that to work for a "non-community" would be a good solution. The problem then seems more to be how closely knit a neighbourhood one should work for, and not an all or nothing. Living in post-industrial society of the Norwegian type, my simplistic view would be: More than at present. In danger of falling into the ditch on one side of the road, one can easily argue for steering more towards the other side, even without knowing exactly how far out that other dangerous ditch is.
Strengthening participatory justice would, however, clearly strengthen tendencies to pay tribute to local values. Justice would not be quite as equal from neighbourhood to neighbourhood as it is supposed to be today. Participatory justice will in other words. strengthen the survival ability of local values. In a world-perspective, that might be a considerable gain. Our highly industrialized world is increasingly creating one homogeneous culture of consumers. Subcultures, native populations, completely other ways of thinking and acting, all this has probably become exterminated to a greater extent during the last 30 years than ever before in the history of our globe. Diversity in social arrangements has become heavily reduced. But we know that diversity often functions as a protection of a species. Some among us looking at the highly military, industrial establishments in East and West as a threat against alternative values and actions, would perceive the fostering of diversity as being of extreme importance. States nearly always defend themselves through armour similar to that of their greatest perceived enemies. Neighbourhoods might succeed by being so small that they are not worth conquering, so different that they are difficult to digest, so cohesive that they through joint action can force giants to find other areas for the contaminating plant, alternative areas which also turn out to be cohesive and resistant. In this broader perspective, participatory justice might turn out to be one of the essential elements in the protection of diversity, and thereby also of values in danger of extermination.
If these views have any validity, then, the major tasks ahead of us are not a discussion of crime control. Nor are they a discussion of theories of treatment, deterrence, or types of punishment. The major task will instead be one of discussion on how to establish a social system that provides the utmost possibilities for exposure and discussion of the total set of values in society. How can we create systems that ensure that all important values, and all important parties, are included in the considerations? How can we arrange it so that the conflict-setting mechanisms themselves, through their organization, reflect the type of society we should like to see reflected and help this type of society come into being?
11.6. Limits to limits?
Could it ever happen? Could we imagine social systems where the parties by and large relied on civil solutions? Would there not always occur cases where someone demanded that punishment had to be carried out?
Two potential cases of such demands are particularly important.
The first is the case of the vengeful victim. The offender has hurt my body. Nothing, except revenge on the offender's body, can restore the situation. Let us imagine that this was the victim's reasoning. Let us also imagine that compensation had been attempted, and that the situation was one of equality of power, vulnerability, and mutual dependence between the parties. If in this situation the victim still insisted on revenge, should not she or he then rightfully be allowed to inflict pain on the offender if she or he so dared?
To this question the first answer must be a moral one. In a system accepting revenge, the victim or his or her representatives would have the right to retaliate. In a system emphasizing the value of forgiveness, the victim would be encouraged to turn the other cheek to the malefactor.
But if the victim does forgive, a new question emerges. Should the victim in all cases be allowed to show kindness, to forgive? What about serious crimes, so upsetting to the surrounding community that they -- the surrounders -- insisted that pain had to be used. The mother of the murdered child forgave the offender, but the surroundings did not. Who should be listened to?
This would, in the concrete cases, depend on what sort of system the parties were members of. If the system consisted of victim and offender, and only these two, the problem would be non-existent, at least for these two. But the more members the system had, and the less closely related the victim and/or the offender was to the other members, the greater the problem of community reaction would become.
Rudolf Steiner (1972) has introduced a useful analogy between language and a sense of justice. We are all born with a potentiality for talking. But we do not acquire a language unless we associate with other humans. Likewise we are born with a potential sense of justice. But we do not build it up before we associate with other humans. It is through interaction that we build up a sense of what is right language as well as a sense of what is the right answer to deviance. Sense of language as well as sense of justice are thus social products.
In both cases, the sense of right -- in language or morality -- can be influenced from sources far away. The Queen of Spain established a grammar for correct language. Illegitimate language was kept under control. Thereby also illegitimate thoughts (Illich 1981). The same is the case within law. State law is the grammar. The ideal type of participatory justice would be one based on the participants' own sense of justice -- their legal local dialect. The more the rules are laid down by the State, the greater are the chances that agreements between parties will not suffice -- as seen from the State's point of view.
In Chapter 10, I have described some conditions for a low level of pain infliction. It will be recalled that my general hypothesis was that social systems organized according to these principles would also exhibit great hesitancy in their application of pain. But at the same time, State government will most often represent a negation of these principles. In other words; the more State, the more the conditions are laid down for punishment, and the less State, the less the conditions encourage punishment.
But here the reasoning brings us into a dilemma. In a small, stable system the chances are great that the sense of justice will be shared by all the participants. They talk the same legal language. This means that the victim's forgiveness will be the other system-members' forgiveness as well. But what if that did not happen? Individual cases might deviate from the pattern. A deviant victim might be in favour of torture, or a subsystem might believe in it. To control such cases, we need large systems with independent non-vulnerable State power -- in other words exactly the social conditions that I have suggested create possiblities of using pain in social relations. To control cruelty, we might need more State power. But creating State power might lead to more use of pain. I see no way out of the dilemma in principle. The nearest I can come to an answer is to say: so little State as we dare. So small systems as we dare. So independent systems as we dare. So egalitarian systems as we dare. So vulnerable participants as we dare. In such cases, they would be inhibited in using pain. But I have then no answer to the question of what to do with a phenomenon such as, for example, pain application which seems "natural" to system-members. Maybe there exists an optimum somewhere, some "five grains of State-power"?
But in practical politics, I have an answer. Our time is the heyday of the large national States. They are seen as natural solutions rather than problem-creating ones. Since that is such an overwhelming tendency, any move in the opposite direction must be a right one. The situation where the punitive consequences of too little State will emerge are so far away that any concrete advice in our recent situation would be to work towards the opposite principle for social organization.