Rhetoric 159, Spring 2004
The following article is © Michelle Walker with external references noted.

Traditional Legal systems vs. Alternatives to Legal Proceedings, in theory and practice as they pertain to criminal accountability and victims' rights.

Modern societies are, for the most part, governed by state-based legal structures, made up of interrelated enforcement agencies, court systems and other bureaucracies. While these structures are traditionally responsible for punishment and dispute resolution, new forms of atrocity with wider paths of destruction often demand new forms of resolution with a wider range of benefits and healing for the victims. As traditional / formal law becomes unable to handle such widespread atrocities, some communities are seeking alternative processes, such as truth commissions, in order to “see justice to be done.” Unfortunately, both formal and alternative processes are fallible, and in some contexts, outright dangerous to the victims of atrocity as well as to the larger community. Karl Marx, Hannah Arendt, Juan Méndez, Gary Bass, Bob Fine, Evgeny Pashukanis, Laura Nader, C. Acuña and C. Smulovitz, and Priscilla Hayner are among the many intellectuals concerned with the limitations of both formal and alternative means for seeking justice, whether in theoretical or practical applications.

Historically, law has the advantage of being erected and enforced by a formal, institutionalized body that can, to some extent, guarantee a certain process for dispute resolution and treatment of criminals. Fine¹ and Pashukanis² examine Marx’s theories of law, which offer basic analytical insight into what law is and what it can do. Fine suggests four functions of law: to provide measure of right, normative standards, mediation and regulation (Fine: 139-143). In this sense law, based on its contents, serves to set guidelines, as well as regulate and mediate relations between people based on those guidelines.

However, it is the normative standards, or contents of the law(s) which will determine what the other functions must do. Without said contents, law cannot mediate, measure or regulate, cannot do anything, because law isn’t any specific thing. It is in this sense Fine and Pashukanis argue, through Marx, law is merely abstract ideology that has been bureaucratized and formalized through history. Fine notes that Marx was particularly critical of institutionalized law becoming “too powerful,.. the means by which the government substitutes its own private will for the will of the people” (Fine: 67). When appealing to a court of law, the individual is expected to place “‘unlimited trust in the officialdom’” (Fine: 67) of the courts, with the good faith that justice will be done through the formal processes prescribed by law. Marx found “the notion that the will of the people can be embodied in one person” or one lawyer, or one judge, completely absurd (Fine: 73), especially when such processes are “predicated” on equality yet at the same time establish “the sharpest differentiation between the judges and the judged, the police and the policed” (Fine: 145).

The absurdity of modern law fetishism is rooted, at least partly, in law’s very nature as an ideology. Pashukanis urges acknowledgement of law as an ideology, and begs the question: Can an ideology even begin to discover social reality (Pashukanis: 74)? He cites the well-known Engels quotation regarding states’ legal / ideological manipulations of power:

The psychological nature of manifestation of power is so obvious, and even state power, which only exists in the human psyche, is so lacking in material characteristics, that one would think no-one could see the state power as anything but an Idea which is [only real] to the extent that people make it the principle governing their behaviour. (Pashukanis: 75)

Engels is almost astonished that people can have such “unlimited trust” in an abstract, immaterial ideology of law, when even within a single state, any other type of ideology (religious, etc) is so highly subjective and personal. Pashukanis is adamant that social reality or problems would have to be viewed very “superficially” to ever be discovered or resolved through outward ideological “statutes and decrees” (P: 79), as law’s “constructs assume perfect and well ordered forms” (P: 80), and address only the theoretical / formal person through an “endless chain of deliberation” (P: 80).

Such deliberation, from the “juridical standpoint,” focuses solely on “fulfillment of a claim” (P: 162-3)—it matters not whether the convicted party feels any sense of personal obligation as long as they fulfill the determined legal obligation to the state / victim. Base fulfillment and the bodies required to enforce it are central in the legal / juridical framework—once sentenced, the convicted party is subjected to “external coercion” to ensure the sentence is carried out, and quite often it seems “legal obligation has nothing in common with ‘inner’ moral duty” (P: 163-5).

While centered solely on the convicted party and their fulfillment of a claim, a suit is primarily concerned with the criminal’s illegal actions, consequences, and some “abstract human labor measurable in time” (P: 181) that may be taken from the convict as part of the fulfillment. Though a criminal can be formally tried, sentenced and imprisoned, he does not have to tell the entire truth (only what he is asked), address his victims’ needs, or necessarily make any mental / moral adjustments within himself. Even more frustrating, though the final verdict and sentence may intend to compensate for a crime, “even if you have the best law… but the official responsible for the execution of sentence is incompetent, then you might as well throw the law into the [trash]” (P: 182). So despite its formal declarations, law is unable to speak to the acceptance of guilt, and in some cases it cannot even guarantee punishment.

Arendt’s analysis of formal trials³ after WWII ran into the same dissatisfaction with law. “Justice demands that the accused be prosecuted”—why the crime took place, how, and what could have been done to prevent it then, or could be done in the future, are irrelevant in a legal trial (Arendt: 5). Arendt compares Eichmann’s trial to a stage play—superfluous, merely for show, and in the end bearing little consequence on anyone’s life. Moreover, Eichmann could only be on trial for what he “did,” leaving all other questions of the Jewish community (victims, survivors, and future generations) aside.

Moreover, as formal trials focus mostly on one side of a story—so much so that it can distort the victims’ own stories (Arendt: 12)—with such fierce technicalities, it is very easy to get lost in, or deny guilt through, convoluted legalspeak. During his trials, Eichmann pleaded “not guilty in the sense of the indictment” (Arendt: 21), yet he was not obligated to disclose in what sense he was guilty. Thus such a trial appeared to be much more of a political nicety than a means of seeking justice, procedural rather than effective, too technical to asses or even reveal what Eichmann actually did, and even detrimental to the past, present and future of the victims and survivors.

Bass⁴ is equally critical of “the trappings of a domestic courtroom” (Bass: 6). What may make sense to “a group of law-obsessed lawyers” may not work for the victims or community, especially when acquittals, technicalities, “uncooperative judges,” trial delays and aggressive defense attorneys enter the picture (Bass: 7). Formal trials function “in the grip of a principled idea,” without necessarily aiming to amend the past or protect the future (Bass: 7). “Duties and rights determined by rules” (Bass: 20) may be well and good for lawyers and the formal litigant / victim, but the victims, in their own social / personal reality, do not benefit in the long run beyond the formal verdict and its promise to punish criminals.

In order to escape the ideological and technical trappings of legalism, particularly with respect to unprecedented, extreme cases of violence and atrocity, some states are now seeking alternative measures by which to resolve conflict. Measures such as truth commissions and tribunals offer several advantages over traditional legal routes: a forum for victims to tell their story without confrontational cross-examination; attention to all truths, not just specific charges; perpetrators can be held publicly accountable; operation outside of dry legal institutions; concern for the wider community rather than just the state, and so on.

Hayner⁵ notes that “during a trial, victims are invited to testify only as needed to back up the specific claims of a case,.. their testimony is likely to be directly and perhaps even aggressively challenged” (Hayner: 26). This focus on the crime and criminal discounts the experience of the victim, even challenges it. She further argues, “commissions effectively give victims a public voice, and bring their suffering to the awareness of the broader public,” as well as help design programs aimed at deciding reparations or offering other social services (Hayner: 28).

Unfortunately, at such an embryonic stage in history, alternatives to law are susceptible to just as many shortcomings as formal law. Law may fail as mere ideology, but because it is recognized and backed by the state, alternative processes run the risk of deterring litigation in favor of weak, short-lived or even coercive harmony. Unlike formal trials, alternative processes such as truth commissions are not held to the same deadlines, are not backed by the same degree of state authority, are not guided by previously-established precedents, cannot uphold the same consequences for perjury, and most importantly, for some, do not place emphasis on punishing the criminals.

Méndez⁶ is particularly skeptical of the ability to do justice without a formal trial. He notes that too often alternative processes “bury the past [forgoing] any form of accountability for it,” when “it is highly unlikely… that demands for truth will simply go away” (Méndez: 2). Though he provides guidelines for an ideal legal trial, Méndez warns that “the outcome of either truth-telling or the search for justice cannot be predetermined” (Méndez: 12)—neither is infallible. However, in alternative processes, if the criminal is granted amnesty and is later found guilty of unimaginably brutal crimes, amnesty cannot be revoked and thus criminal cannot be charged for such crimes.

Ultimately, a crime is a crime, “‘murder is murder’ and should therefore be punished” (Mendez: 8). Méndez acknowledges that neither “leniency” nor punishment can guarantee to reform the perpetrator of a crime, but failing to punish the perpetrator simply “fails to recognize the worth and dignity of each victim” (Méndez: 4) as a victim. Acuña and Smulovitz⁷ also find, in some cases, “the use of juridical means to address human rights violations is the most appropriate approach” (A & S: 95) in order to avoid possible corruption and lax measures in alternative processes [though they do acknowledge that trials can “limit the scope” of the crime and frustrate victims (A & S: 112), formal trials seemed the best measure to ensure proper justice and punishment where each is due].

Contrary to her support of truth commissions in certain circumstances, Hayner offers further insight into the weaknesses of alternative processes. She notes frustration among victims at “losing a day of work” or having to remember painful stories (Hayner: 2) in order to participate, when truth commissions cannot necessarily guarantee any sort of resolution or reconciliation. “With hundreds or thousands of perpetrators still walking free,” how, really, can “truth lead to reconciliation” (Haynes: 4-6)? Hayner notes that as long as the perpetrators may tell their “truth” and then just walk away from history, “the notion of healing is a bit overstated,” and the “truth” may affect the commission’s administrative / data entry staff more deeply than it does the criminals (Hayner: 6-7).

Further weakening the effectiveness of truth commissions is that victims’ expectations are “almost always greater than what these bodies can ever reasonably hope to achieve” (Hayner: 8) without the same state enforcement as courtroom trials, as well as the fact that “many new commissions have begun their work without [established precedents] at hand” (Hayner: 8) from which to proceed. Moreover, without a trial and final verdict, victims may still be unable to forgive “without knowing whom to forgive and what to forgive them for” (Hayner: 30).

Additionally, just as law can provide coercive punishment, alternatives to legalism can enforce coercive reconciliation. Whether formal or alternative means are used, social inequalities will surface, and deterring litigation can often be a manifestation of social inequalities made and upheld by particular legal doctrines or powerful defendants. Access to legal protection and defense is a major point of contention in typically oppressed communities, and Nader⁸ is wary of “alternative dispute resolution” becoming a controlling process, a tool of pacification, as legal ideology makes way for “harmony ideology” (Nader: 712-13) as a form of behavior modification.

She notes that alternative means may rush to coercive compromise and consensus” in order to avoid conflict and litigation" (Nader: 712). Though truth commissions and alternative means may have good intentions, “the powerful tend to become advantaged by alternative dispute resolution… [Though] hierarchically lower societies supposedly evolve from... negotiation” (Nader: 714-15), in practice, alternatives may leave these societies greatly disadvantaged, repressed, and excluded from their supposed “equality before the law” (Nader: 715).

Whether formal trials or open storytelling are the means of seeking the truth, inevitably the possibility lurks of getting stuck in the cogs of a bureaucratic legal system, unwavering ideologies, or endless and ineffective alternative processes. Only in theory and ideology can social and legal issues remain segregated; in practice and reality, they are very much intertwined, each often causing and catalyzing the other. Consequently it seems impossible to use a purely "traditional" legal or "alternative" means for seeking justice.

Moreover, justice is as context-sensitive and subjective as morality and ethics—while there are general trends in what individuals may deem “just,” it is impossible to have a normative or universal standard, even within a single community, which is able to dictate what must be done, and who must be punished in order to “see justice to be done.” Hayner offers the notion that “rather than displacing or replacing justice in the courts, a commission may help contribute to accountability for perpetrators” (Hayner: 29), in the sense that “some commissions pass their files on,” and if the perpetrator has not been granted either partial or full impunity, prosecutors may pursue a case at a later date, ideally combining the revelations of a truth commission with the formal punishment of a court trial.

Unfortunately, both legal and alternative processes tend to be idealized in theory; in practice both processes, if not handled properly or fully, have the ability to hurt the victims as much or more than simply forgetting or ignoring the crime. Law is advantaged by its state support and complex systems of enforcement, but too easily overlooks the individual or community, and perpetuates the cycle of retaliatory punishment (albeit in a legal rather than individual form). Alternative processes, on the other hand, enter the much needed human concern and presence into dispute resolution, yet at the same time can disadvantage the community or appear to let perpetrators of heinous crimes walk away from accountability and any kind of sentencing. Neither method is flawless, though perhaps, these two formal and alternative frameworks for resolution may intertwine, as Hayner suggests, to provide the swift, concrete sense of legally “doing something” or sentencing criminals, with the opportunity for victims to air grievances and learn the full “truth” in order to begin the healing and reconciliation process. Amnesty, at least full amnesty, however, is still, for me, problematic if any combination of resolution processes may hope to take action against criminals after truths beyond a specific claim are revealed. The world continues to experience atrocities beyond what any traditional courtroom may hope to handle, but regardless, no victim should ever have to live with the thought that perpetrators of such atrocities may walk free in exchange for their mere, supposedly-truthful words.

Works Cited

(by superscript #)

1- Fine, B., Democracy and the Rule of Law, Blackburn Press 2002

2- Pashukanis, E., The General Theory of Law and Marxism, Transaction Publishers 2002

3- Arendt, H., Eichmann in Jerusalem, Penguin 1994

4- Bass, G., Stay the Hand of Vengeance, Princeton University Press 2002

5- Hayner, P., Unspeakable Truths, Routledge 2001

6- Méndez, J., “In Defense of Traditional Justice,” from Transitional Justice and the Rule of Law in New Democracies, University of Notre Dame Press 1997

7- Acuña, C., and Smulovitz, C., “Guarding the Guardians in Argentina,” from Transitional Justice and the Rule of Law in New Democracies, University of Notre Dame Press 1997

8- Nader, L., “Controlling Processes: Tracing the Dynamic Components of Power,” from Current Anthropology vol 38 no 5, December1997