03 / 1993
While empathising with the supposed objectives of an alternative justice practitionners, the author ponders however.
They carry the hope of a more human legal system, the one with which post-industrial societies want finish up. Just as political consensualism can create a dual society these practices can lead to a dual justice system.
In the United States, which has more experience in this than France, doubts are being matter raised about the most commonly accepted justification of informal justice: its democratic character. R.L. Abel, specialist in these issues accuses it of increasing state control by dissimulating it behind the masks of non-coercitivity and the lack of formalism. It is thus true that informal justice mostly concerns dominated groups, formal justice being reserved for the middle and upper class, with its costs and its guarantees.
For from being harmless informal justice uses, according to the author, more subtle means of domination of the weak, it doesn’t help restore community relations but on the contrary destroys them because of its individualistic inspirations. Conceived to short circuit the judicial bureaucracy of formal justice, it only substitutes a new body of professionals of informal justice, the conciliator and the voluntary mediator.
However, adds N. Rouland, if this is true then alternative justice systems, just like the system of prosecution or state law risk slipping, cannot be reduced to a mild domination technique, to the latest stroke of inspiration of the ruling classes. Indeed negociated order is a tool that can be used in different ways, and there is no reason why the capitalistic system should not be tempted to use it occasionally, as have done some socialist regimes.
However, there are also many situations where negociated order doesn’t serve any government ruling class, socialist or capitalistic: the resolution of family conflicts or those of many groups.
But there are further reservations. Informal justice? This is the anathema, state many experts, probably mistaking formalism for the necessity of forms. The former is sterile while the latter represents guarantees for the litigants. Moreover these rites make up a symbolic behaviour.
The lack of forms and rituals can favour a loss of sense and serious misunderstandings, as we are participating in an annihilation of forms rather than their replacement. Legal proceedings when no juge is present adds to the feeling of insecurity.
Does this mean therefore renouncing all hopes born from alternative justice, leaving everything up to the State, returning to the cold law and ice cold laws? N. Rouland doesn’t think so: "such a turn around would be impossible because mentalities have evolved. We are only at the beginning of a long journey which is not without perils. It is better to try and catch a glimpse of them rather than to be blind to them. Post-modern law is still largely being invented. But the traditional societies, far from being archaic, are probably showing us the way? We have often noticed the similarities between their law and that which our post-industrial societies are giving birth to. To what extent can we make the link ?"
The term "alternative systems of justice" is too general as it covers many realities. Criticisms of it are justified when they are about the structures of derivation of the judicial machinery, set up by the state machinery, because these structures are more or less under state control. They are not justified when the alternative systems of justice are set up and legitimated by the population, independent from all state structures, whether they call on or not these autonomous dispute settlement centres.
The text that was analysed only represents a few pages of the work of N. Rouland "Aux confins du droit" = At the edges of the law, a living book of popularization of the law, which recreates its content, from its origins up till today, throughout African, Asian, Western cultures. The index is comprehensive: the mists of law; the law has a history; the state, violence and the law; law in the plural; law and values; the law, the nature and the supernatural.
Original card in French in Dph data base. The ’title/sub-title’ field corresponds to the ’translated title’ field in the French card.
ROULAND, Norbert, Aux confins du droit: anthropologie juridique de la modernité, Odile Jacob, 1991 (France)