Monday, January 10, 2011

Next Stage Justice

In The Eumenides, Athena abolished the revenge cycle because that ancient justice system contained fundamental flaws that made it unsuitable for an enlightened democratic state.  Revenge does not achieve finality; it perpetuates violence; and it is mechanical and deterministic, thus denying free will.  In its place, Athena set up a new system that was supposed to be based on wisdom, truth, and rationality.  It continues to serve us well in many cases, but after more than 2000 years of our experiment with this more enlightened justice system, it might be time to ask whether it has finally has outlived its usefulness.  At the very least, we can probably all agree that our system of justice could stand some improvements.

We can identify several fundamental flaws in our system.  First, it embodies an inherent contradiction that has existed from the time of its imagined invention by Athena in The Eumenides.  That contradiction lies in the jury's unreviewable authority to acquit the accused, while at the same time being bound by their oath to follow the law.  It was recently reported, for example, that prosecutors are finding it more difficult to get convictions at trial in minor marijuana cases, because many jurors simply will not convict for these offenses.  Jurors in civil cases also have substantial power to reach the result they deem appropriate, regardless of the instructions they are bound to follow.  It is probably good that jurors have this power, because it can temper the law's harshness in particular cases, but it means that we cannot claim to be governed solely by the rule of law: we are sometimes governed by the whims of individuals who sit in the jury box. The leeway that juries--and judges--have to interpret the law and the facts also makes results difficult to predict.

Second, our adversarial model of justice still resembles a form of combat.  Victory will sometimes go to the team that plays the better game, not necessarily the side that is most in the right.  Therefore, like the revenge cycle, modern trials still do not always achieve finality, or satisfy the parties or society with the fairness of their  results. 

Finally, our system has become cumbersome, time-consuming and expensive.  As procedures have evolved to protect the fairness of the process and the rights of the parties, these procedures give rise to delays and potential abuse.  As a practical matter, most people simply don't have the time or the money to litigate most disputes, and need an alternative.

The rise of ADR can be seen as a sign of people's frustrations with a formalistic, rule-bound system.  The search for alternatives can partly be explained by the desire to avoid the enormous costs and time commitments of formal litigation, but there is more going on than that.  We are also trying to satisfy needs that have never been perfectly addressed by the legal system:  for one, the need of parties to design their own solutions to conflicts, instead of having solutions imposed on them by a higher authority. In the legal system of the future, will we sweep away even more completely the formalism of a deterministic process?   Will we provide an opportunity for anyone who has a dispute to resolve that dispute, apart from whether legal rules may or may not provide a possible answer?  In other words, can we devise a justice system that resolves any real conflict regardless of whether a party has a "case" that can be brought in court?  Mediation may offer the promise of filling in these gaps in our justice system.

Mediation brings back some of the do-it-yourself aspects of the legal system that Athena abolished in The Eumenides.  Unlike the ancient revenge system based on divine compulsion, however, the modern movement for do-it-yourself justice seeks to satisfy the self-directed interests of both parties.  Revenge solves a problem for one side by killing the other; then it creates a new problem for the killer.  The second stage justice system designed by Athena replaces vengeance with the ability to reason with fellow citizens to impose a solution on the parties that can put controversy to rest.  But that system limits the arguments one can make to those the law allows or that a jury might accept.  It does not always take heed of arguments and interests and concerns  that might help the parties themselves to reconcile.  And it denies parties the power to design a solution for themselves, instead requiring them to accept the judgment of the court.  A third stage justice system  would aim to resolve disputes by agreement in a manner that both parties themselves find fair.  To do that, it might still rely on legal norms that the parties find persuasive, but would not be limited to deciding cases based on those rules (as even the existing jury system is not so limited).  It adds the ability to consider interests and needs and mutual advantage, in addition to time-honored principles that both sides accept as valid.  I should note that I'm not suggesting that our entire legal system should be scrapped, and replaced with mediation or some other form of ADR.  I don't expect, or even want, litigation and trials to go away anytime soon.  What I'm saying is that our system is evolving into something new, a system that may incorporate additional values into the formalistic, rules and rights-based process that still dominates today.

Someone might need to pen a modern Oresteia that reveals the shortcomings of our current system of justice, and leads the parties toward the promise of a better system that encompasses a broader range of conflict, and resolves or manages conflict in a more harmonious way for the parties and society at large.  Will we evolve to a point where our current justice system seems as barbaric as the ancient revenge cycle seemed to the Athenians in Aeschylus's time?  It's exciting to think that we might be at such a stage in history.

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