REVIEWS
| Published date | 01 September 1982 |
| Date | 01 September 1982 |
| DOI | http://doi.org/10.1111/j.1468-2230.1982.tb02495.x |
REVIEWS
THE
POLITICS
OF
INFORMAL JUSTICE
THE POLITICS
OF
INFORMAL
JUSTICE,
Vols.
1
and
2.
Edited
by
RICHARD L. ABEL. [New York, Academic Press. 1982.
335
and
338
pp.
Hardback
:
E19.60
each.]
PARADOXICAL
efforts to delegalise law in the late twentieth century have
generated confused and contradictory responses at points
all
along the
poli-
tical spectrum. Any attempt, therefore, to draw the debate together is likely
to be
a
useful prelude to
a
more coherent analysis.
Wisely eschewing words such
as
socialist justice or popular justice which
should denote precise concepts, but which are most usually used merely
rhetorically, Abel uses the term
informal
justice to characterise those insti-
tutions and procedures which do not correspond to conventional civil law or
common law institutions and practices. Broadly he means those institutions and
practices which are either not formal or not rational in Weber’s sense. Equally
wisely he omits any discussion of either pre-capitalist
or
colonised societies: his
readers are not invited to elide distinctions between modes of production and to
choose
off
the peg
a
judicial form they fancy for instant home consumption.
Rather he appears to share Santos’s view that
“
explanation is always future
oriented’’
(2:
279),
and that strategies for the future can only emerge from
struggles, and the correct analysis
of
struggles, in the present. Thus not only
are pre-capitalist models not on offer, but finished socialist models are not
available either. What Abel does present are twenty accounts
of
changes
in
legal forms, with attempted analyses
of
how these changes have come about,
and
class evaluations
of
them. This is a brave and important enterprise, and
inevitable variations in quality between individual pieces do not detract from
the overall conception,
or
from the scale of the theoretical and political advance
which this collection makes possible. A step by step examination of the collec-
tion reveals not just the individual strengths and weaknesses, but also the
theoretical space which Abel has created for
us
by bringing these papers
together.
The first volume deals with “The American experience.” After
a
brief
editorial introduction there are three sections dealing with
“
historical ante-
cedents.”
“
contemporary experiments
”
in the United States, and
“
theoretical
perspectives.”
Jonathan Garlock, in the historical section, analyses the Knights
of
Labour
Courts which held considerable sway in the last thirty years
of
the nineteenth
century. Between
1869
and
1896
approaching three million workers joined
the Order, which had twelve thousand Local Assemblies in five thousand
industrial communities
(1:
18).
Each local assembly had
a
court consisting of
a
judge,
a
judge advocate, and
a
clerk, all elected annually.
To
the continuing
chagrin
of
some members, there was no central or superordinate court
structure. Court records are rare and patchy, in particular for non
‘‘
criminal
’’
matters. However, full records
of
expulsions
for
limited periods are extant, and
Garlock is able to show that the courts dealt
as
frequently with violations
of
statute law
as
with
“
offenses against class solidarity
”
or
“
offenses against the
Order.” The struggle
by
state courts to regain control
of
labour discipline,
either directly or by directing what procedures should be used by the Order
and by unions,
is
hinted at rather than presented fully.
In the second section Mark Lazerson’s paper on the South Bronx Legal
Services Morrisania and Landlord Tenant Offices
is
an exciting read. Success
stories in the law for the poor area are
so
rare. Lazerson describes how
a
594
Sept.
19821
REVIEWS
595
strategy
of
insisting on formal procedures and trials led to
a
backlog of cases
and longer waiting times. Judges began to insist on the observance
of
correct
procedures by landlords in the first instance to save interminable adjournments.
Landlords began to find it worth their while to settle with tenants out
of
court on terms relatively favourable to the tenants. The alternative was to
wait
a
long time for
a
trial which might, given the new formality, necessitatc
the expense
of
hiring a lawyer.
Even this story lacks
a
completely happy ending for
a
political struggle led
to the landlord-tenant courts being replaced by
a
new agency with
a
more
administrative style. Continuing battles secured
a
policy of dismissing for pro-
cedural irregularities in the new Housing Court
as
well. The alternative for
the court was to suffer
a
succession of one and two day trials. But legal ser-
vices representatives have not yet been quite
so
successful in the new court
as
they were in the old one. Although Hearing Officers and landlords have
learned to be wary and
to
settle, respectively, when
a
defendant is repre-
sented by the L.T. Office, in the new court this success is restricted to the
tenants whose cases the office
has
actually taken on, whereas the organisa-
tion of the old court had made it possible to influence every case and by
so
doing to create
a
general policy.
The paper which stands out in the theoretical section of volume
1
is that
by Boaventura de Sousa Santos. The only reprint of the entire collection-
and well worth its second life-this paper originally appeared in the
Inter-
national
Journal
of
Sociology
of
Law
in
1980.
Santos’s argument is complex
and conceptually tight. Considerably simplified, therefore, the gist of it is
that the movements towards diversion, treatment in the community, neighbour-
hood justice, and
so
on, represent
a
deeper and more subtle penetration by
the state into new areas of civil society. This is achieved by means of the state
harnessing
“
chaosmic
”
or dispersed powers
to
its purposes. What is in part
implicit, in part expressed, in Santos’s work is that in everyday life social
control is exercised through
a
myriad of diverse, sometimes contradictory,
relationships and practices: the wish to show
or
receive affection; the wish to
accord
or
receive respect, status, or prestige; an awareness of responsibility for
others- these are but
a
few of the highly desirable control devices that
can be identified in society. The new strategy, however, means that the state
shapes the criteria for which respect should be accorded, has views about the
channels along which affection may legitimately flow, distinguishes appro-
priate from misguided senses of responsibility. Thus
a
new penetration of
civil society is achieved. Santos adds
a
note of hope-no development is with-
out its contradiction, and every power ostensibly given to
a
community may
one day be seized by that community for real. But by and large this
is
a
warning, and because the argument is
so
conceptually refined the warning it-
self is clear and simple, like the theme in
a
Mozart concerto, which transcends
its own complexity.
Many of the other contributions
to
Volume
1
provide over-views
of
deve-
lopments
or
arguments: the terrain is largely familiar, but there are sudden
outcrops of insight which may necessitate modification of the intellectual map.
Christine Harrington offers
a
brief survey of institutional changes in the
United States and the ideologies governing them in the early years
of
this
century; Paul Wahrhaftig attempts
a
classification
of
contemporary develop
ments in terms
of
who controls the agency; Andrew Scull rehearses his argu-
ment that community corrections arrangements are
of
benefit to the autho-
rities rather than to the recipient. In the theoretical section Steven Spitzer,
Richard Hofrichter, and Rick Abel himself attempt theoretical/political cvalu-
ations of the contemporary push to judicial informalism in the United States.
In different ways each confronts the dilemma of
a
reform movement which
offers at best an exchange of often unenforceable rights for sympathetic treat-
ment. This contradiction is compounded by the ambivalence of the left
to
formulations
of
rights which depend on
a
capitalist ideology
of
the nature
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