[Revised from my Article by the same Title — Imbizo: Research in
Progress Series, Issue No 1/, 1996, Community Peace Foundation: Groote Schuur,
Cape Town)]
What can be
done about the way the common people think of our justice? Some of them find
the mere word “trial” terrifying.
—Crime and Punishment by Fyodor Mikhail Dostoyevsky
'l can’t believe that!' said Alice
'Can't you?' the queen said ...
'There's no use in trying 'she said: 'one
'There's no use in trying 'she said: 'one
Can’t believe
impossible things'.
'I dare say,
you haven't had much practice',
said the queen.
When I was your age, I
always did it for
half an hour a day.
Why, sometimes
I've believed as many as
six impossible things before breakfast
—Through the Looking Class by Lewis Carroll
INTRODUCTION
Do we need
courts, with their rituals, symbols and personae
in black robes, who speak their familiar (but
not so widely understood) legalese?
Are there no other institutions more efficient in the administration of justice than the courts of law? Do we really
have to spend (some might say waste)
years at University learning how to resolve disputes and problems? There will
be those who would consider the very contemplation of such questions sacrilegious and
anarchist.
Criticism
levelled at the legal system is that too many chauvinists have laid claim to
the tools regulating the administration of justice and that they do not care
about law and order or the safety of the ordinary citizen. Many legal
practitioners only guard their own financial interests and professional statuses.
Academics too often do not pursue justice, but only abstract ideas for erudite dissertations
or articles. Justice should not be allowed
to suffocate under these conditions.
It should be administered by those directly
interested in their own safety and security―the so-called ordinary people.
These ordinary people speak the language of fellow citizens and wear the same ordinary
clothes of their fellow citizens when administering their justice; they do not walk
around in scary black robes.
I shall argue
that any person who is a citizen of good standing is qualified and competent to
be a judge. I shall moot the possibility that we might not even need courts to
assist us in solving our problems. Justice is
common sense. Years of misguided education have made us insensitive to the
art of effective conflict resolution. I
shall seek to encourage the appreciation of other, more participative and user
friendly ways of resolving disputes and conflict.
REINVENTING THE WHEEL
Dr Edward De
Bono, generally considered the leading authority on creative and conceptual
thinking, is critical of the ability of acknowledged
skilled people, operating within their conventional institutions, to resolve disputes:
All those people who have built up skill in the old
idiom of conflict thinking, where the thinking is the extension of the
conflict, should not assume that that is the only or the best approach to
conflict resolution. If we are content to leave conflict resolution to such people then this assumption will be made, and we shall remain stuck forever within an idiom that has shown itself to be inadequate
(De Bono 1985:99)
We assume that
there have to be courts with all the trappings courts are supposed to be
endowed. The question which is not asked, however,
is whether a court is a precondition
for the existence of justice. Someone, sometime long ago, invented the wheel
and the construction or invention of a similar utensil is not for such sophisticated
souls as we. De Bono criticises our obsession with the familiar and our fear of
the untested.
It is
never easy to abandon
familiar figures that have
proved their usefulness over and over again. The sense of commitment is very
strong. It is difficult
to remember the arbitrary nature of the figure which seems to have been
discovered, not just created to simplify
descriptions. When an unfamiliar figure proves difficult to
describe, great efforts are made to
try every possible combination of well-tried
familiar figures rather than some other figure. But there comes a time when it
is necessary to question not the way familiar figures are put together in an explanation, but the
familiar figures themselves. (De Bono
1967:61)
For centuries
we have, as Mark Twain said, allowed our schooling to interfere with our
education. We have allowed our intellectual development to be hamstrung by
rigid institutionalised schooling. We have come to regard this method of using our intellectual
properties as gospel. We ostracise those who criticise the institutions to
which we have all our lives been exposed. De Bono
puts this point as follows:
Why is
it that our intelligence has locked us into
habits, idioms and institutions that prevent a better use of our intelligence? The reason is that we have developed a
thinking system that was
appropriate when developed but is now dangerously
inadequate. That thinking system has served us well in most areas—except the area of conflict
resolution where it is totally
useless. This is because the thinking system (based on language, logic and the principle of contradiction) is itself a conflict method. So we apply conflict to
the resolution of conflict. (De Bono 1985:2)
The unschooled,
illiterate, academically unqualified citizens, who have not run the gauntlet of
Western intellectual thinking, are prohibited from participating in the administration
of justice. How would they ever be able to understand the highly sophisticated,
highly refined, highly convoluted art of legal gymnastics that has been so
carefully honed for centuries in academic seminars and venerated Courts of law?
THE BUREAUCRATISATION OF JUSTICE
Let us now for
a moment believe just one impossible thing: let us consider the abolition of courts.
According to French philosopher, Michael Foucault we should not seek a place
for popular justice within the conventionally defined constraints of a court.
What we should rather ask ourselves is whether there is a place for such a
constituted court within acts of popular justice. A court is a means whereby
justice could be administered. A court is therefore arguably dispensable:
In my
view one shouldn't start
with the court as a particular form,
and then go on to ask how
and on what conditions there could be a people's court: one should start with popular justice, with acts of
justice by the people, and go on to ask what place a court could have within this. (Foucault
1980:1)
Does this
suggest that Foucault concedes that there is a place for a court within the parameters
of popular justice? Foucault is extremely sceptical, The masses have, for historical reasons, always
had a deep-seated mistrust in the
judicial system. Also courts set up by the masses themselves, meet with
Foucault's disapproval, His rejection of even these courts stems from what he
calls their ‘spatial arrangement’.
What is 'his
arrangement? A table, and behind this table, which distances them from
the two litigants, the 'third party', that is the judges, Their position
indicates firstly that they are neutral with respect to each litigant, and secondly this implies that
their decision is not already arrived at
in advance, that it will be made after an aural
investigation of the two parties, on the
basis of a certain conception of truth and a certain number
of ideas concerning what is just and
unjust, and thirdly that they have
the authority to enforce their
decision. (Foucault 1980:8)
The spatial
arrangement might sound innocuous and even admirable to state court officials:
an impartial judge who only reaches a decision after having weighed up the oral evidence. However, an argument
along these lines proves that we have been mesmerised by high-sounding Western
conceptions of justice. Foucault explains:
Now the idea that there can be people who are neutral
in relation to the two parties, that they
can make judgements about them on the
basis of ideas of justice which have absolute validity, and that their decisions
must be acted upon, I believe that all this is
far removed from and quite
foreign to the very idea of popular justice. In the case of popular justice you
do not have three elements, you have
the masses and their enemies.
(Foucault 1980:8)
Popular
justice is 'profoundly anti-judicial,
and is contrary to the very form of
the court.' (Foucault 1980:6) The
court structure is anathema to the concept
of popular justice; the two concepts are mutually exclusive. A court only forces popular justice into a bureaucratic
strait-jacket:
The court is the bureaucracy of law. If you bureaucratise
popular justice then you give it the form of a court. (Foucault 1980;27)
Foucault's
criticism of the judicial system is not as
such a crusade against injustice. He
rejects institutions even if the basic rules of natural justice are adhered
to: the rule that the other side must be heard and the notion a neutral judge. His concern is with the spatial arrangements, the image of
the table, that is, the image of power endemic in any court
whether this court produces justice
or injustice. The struggle against the
judicial institutions should be seen as follows:
The anti-judicial struggle is a struggle against power and
I don't think that it is a struggle against injustice
of the judicial system, or a struggle for
improving the efficiency of its institutions. (Foucault 1977:211)
One does not necessarily have to call for the abolition of courts, but toying with the idea gives us an excellent
practice-run in preparing us to believe the impossible. De Bono teaches us that
many things we believe to be impossible are impossible only to the extent
that our Western intellectual habits have hampered our creativity. Unschooled
people have mastered the art of dispute resolution. These people have not enrolled at Universities for
law degrees. The mechanisms they use in dispute resolution, often command more
respect from their communities than courts do. These mechanisms are efficient, user friendly, accessible, intelligible
and cost effective.
A PEOPLE'S COURT CASE STUDY
In a people's court in Guguletu, Cape Town which I often
attended in 1995, ordinary people meet every
week to resolve community based disputes. They come voluntarily without having to
submit to the jurisdiction by order of
court. The stage is immediately set for the amicable dispensation of justice.
There are no rules of Evidence and
Procedure. There is no presumption of innocence. There is no right to legal representation. The 'judges' are not even
necessarily impartial: they are the police, clerks, messengers and orderlies of
the court. prosecutors, legal representatives and correctional supervision
offices all in one, In short, the
proceedings are contrary to the dictates of Western norms that regulate our
ordinary courts, and are more likely than not unconstitutional.
A complainant
presented his argument to the judges. He alleged that his erstwhile girlfriend (the accused) had damaged his window. Yes, she
retorted, she had broken the window, but the complainant (her child’s father)
had failed to support this child financially. She had gone to his residence to confront
him about this; an argument ensued as a result of which she smashed the window.
A magistrate in a criminal court would have told her that defence was hardly a
defence but at most a plea in mitigation of sentence. She should have gone to
the maintenance officer to lay a complaint
of failing to pay maintenance. She was wrong to have taken the law into her own
hands.
In our
people's court, no sooner had she raised
her defence than the court performed a somersault: the original complainant was
there and then marked as the accused on a charge of failing to pay maintenance
and the original accused became the new complainant. From the entrails of what
we in a criminal court would have called a charge of malicious damage to
property, sprang a charge of failing to pay maintenance. The new defendant was
at pains to defend himself. There was no question
of his objecting to an apparently procedural irregularity. There was no
question of his taking the matter on appeal or review. He alleged that his
employer had in fact deducted the payments from his salary.
The case was thereupon
adjourned to the following week. In the meantime the judges established that
our newfound accused had told the truth; the reason the complainant had not
received the money was that there was a bureaucratic hiccup at the office where
she was supposed to have collected it. On the next date of appearance the case
was resolved: she was satisfied with the reason for non-payment and she undertook
to repair the damage to the window. There was no chance of either party being
'convicted' of any offence. Harmony was restored between the two. Whereas this case would have required two separate trials
over perhaps several months in our state court, it was disposed of in our
people's court within a week.
THE LEGITIMISATION OF CONFLICT
In the
following excerpt Dr De Bono refers to the hostile method of resolving disputes
that we encounter on a daily basis in
our criminal courts:
Like criticism, argument is emotionally attractive. It puts into a more civilised framework the joy of fighting
and the potential joy of destroying the other party. Once this innate
attractiveness had been legitimised as the proper way to think about things it
is no surprise that argument became so pervasive in Western culture. Other cultures
do have discussions and disagreements and emotions, but without division into
two warring parties. (De Bono 1994:34)
The San
Francisco Community Boards in the United States employ a method of conflict
resolution that is informal, participatory, non-professional and in accordance
with the norms of the local community. There is not the violence of imposed, coerced
settlements, because the aim is reconciliation, consensus and compromise. (Merry and MiIner 1993:10). This is probably an example
of the method of conflict resolution De Bono refers to in the
following quotation:
There is a very interesting type of conflict resolution
that is prescribed by law in certain
states of the United States but is not often used because it is not
much liked by lawyers. In normal conflict situation both parties start at extreme positions knowing that they will
gradually bargain and fight their way to
a middle or compromise position. A great deal
of time, effort, and expense is involved. In the alternative method, the conflicting
parties never meet. Each party 'designs' the most reasonable 'outcome' or conclusion.
Both outcomes are placed before a judge or arbitrator. This person has to choose the
most 'reasonable’ of the
proposed outcomes. Clearly if one suggested outcome is unreasonable and
the other is reasonable then the reasonable outcome
wins. So both ponies try their hardest to 'design' a reasonable outcome. All the effort which might previously have gone into fighting now goes
into 'design'. If both parties do a good job of designing a reasonable outcome then
it probably does not much matter which
one is chosen by the judge. The interesting
point about this procedure is that all the emphasis is placed on design instead
of argument. (De Bona 1992:65)
The members of
the people's court in Guguletu naturally make use of this method of conflict
resolution advocated by De Bono. They might not have made a study of these
concepts, but they are lateral thinkers by nature. The time has now come for us to teach our intellectuals the art of resolving disputes in a
civilised manner.
CONCLUSION
Michael
Foucault's views on popular justice are radical.
One does not necessarily have to agree with them or argue for their implementation.
However, Foucault's approach could serve as a catalyst
to jolt us from our complacent stance on the administration of justice. He
forces us to make use of a process of thought that is seemingly anti-establishment and illogical. This might
nevertheless be very valuable in giving us food for thought in a quest to solve
the legitimacy crisis from which the legal profession suffers, In other words, ha urges us to make use of
a problem solving technique which De Bono might have called 'Lateral
Thinking'.
Like Alice we
should learn to believe the impossible and to think the unthinkable. We should
moot the possibility of abolishing courts. We might eventually realise that a step
as radical as this might not be necessary. But, as the Queen advises Alice, we need the practice. Only then we
might be able to stimulate a debate on the legitimisation
of justice that might change our views
and that of society radically. Eventually, this might encourage us to change our judicial system radically.
BIBLIOGRAPHY
Edward De Bono
The Use of Lateral Thinking, Penguin
Books, 1967
Conflicts: A Better Way to Resolve Them, Penguin
Books, 1985
Serious Creativity: Using the Power of Lateral
Thinking to Create New Ideas, Harper Collins, 1992
Parallel Thinking: from Socratic to De Bono Thinking, HCA &
Penguin Books, 1994
Michael Foucault
Intellectuals and Power (A Conversation with Gilles
Deleuze), in Language, Counter Memory, Practice (selected essays and interviews). Oxford,
Basil Blackwell, 1977
Power/Knowledge: Selected Interviews and Other
Writings (1972-1977), Pantheon, 1980
Engle Merry and Neil Milner (Editors)
The Possibility of Popular Justice: A Case Study of
Community Mediation in the United States, University of Michigan Press,
1995
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