Discussing if examples of informal justice can be found in all societies and at all times.

“Law begins where community ends”[1].  Jerold Auerbach’s quote suggests that formal justice or the “law” cannot always serve communities and perhaps is one reason why informal justice can be found in multiple societies at different times. However, it is first important to consider that notions of justice and formality may vary broadly across cultures. In order to deal with these cultural variations this paper will consider justice in its broadest sense and follow a model of informal justice that contains a number of non-exhaustive “identifiable elements”[2]. Indefinable elements that include: non-bureaucratic processes, accessibility to ordinary people, not dependant on professionals, reliance on lay people as third party interveners, reliance on local standards and common sense rather than within the scope of official law, based on procedures and rules that are unwritten and flexible, and based on promoting harmony within the parties and the community[3]. These elements will be considered throughout the illustrative examples. The examples that will be examined are informal justice in China, the use of informal justice in Chinese-American culture and informal justice in the Gacaca courts in Rwanda after the genocide. These illustrative examples are intended to demonstrate how informal justice can occur throughout a society’s history and may happen in different societies for multiple reasons.

Informal Justice in China

Mediation is the primary method of local community dispute resolution in China[4]. It could be argued mediation has both helped and inhibited people in China from achieving informal justice.  Informal justice in China has changed over the centuries as the process of mediation has been affected by the social and political changes that have occurred in China. China illustrates how informal justice can be found in a society at all times. Traditional informal justice in China was largely done through mediation that was influenced by Confucian values of harmony, persuasion, non-litigation, compromise or yielding[5] and “face” (jang)[6]. The Confucian view of law (fa)[7] was very critical. It viewed law as a “clumsy system of punishment that intended to strengthen the state”[8] and it did not have regard for world peace harmony and contentment[9].  It is perhaps this Confucian criticism of “legalism” that resulted in mediation and informal methods being the favoured system in traditional China. It is important to mention that “legalism” was favoured under the Chi’in dynasty but was replaced again with Confucian after its dissolution[10]. Legalism was a Chinese school of thought that favoured a more formal legal form of dispute resolution. The importance in mentioning the Chi’in dynasty is to demonstrate that informal justice can be affected by changes of leadership in a state and affected by how much a state may favour imposing formalism or formalistic ideas upon its people. Traditional Chinese mediation may be considered as a form of informal justice for multiple reasons. Reasons such as the Confucian emphasis on harmony and compromise but also because disputes would be solved by a mediator who had no legal training but had some social tie to the disputing parties[11]. These social ties were sometimes used to put social pressure on the disputants to accept a mediator’s advice or end their disputes amicably[12]. This use of social pressure to enforce a decision rather than judicial enforcement demonstrates an element of traditional Chinese informal justice. Other reasons why traditional Chinese mediation may be considered as informal justice is that there were no strict procedures or rules for mediation and the mediators often used common sense and Confucian values to solve disputes[13]. Reasons why informal justice may have been favoured in traditional China is because of the Confucian ideology which discouraged litigation and because of the “perils of litigation” [14] such as corrupt magistrates, torture and humiliation that were involved in formal justice[15]. The concept of the “perils of litigation” may also demonstrate that informal justice arises in societies where formal justice fails the people. Traditional Chinese mediation also demonstrates the breadth of informal justice as it was used in different contexts such as family or social disputes and commercial disputes as well where members of Guilds would have disputes mediated by their Guild Halls[16]. Traditional mediation did have some flaws such as favouritism, bribery and social pressure to “lump it” if the result was unsatisfactory or further conflict would lead to embarrassment[17]. To “lump it” means to avoid conflict or further conflict and continue to suffer or not voice a grievance (Felstiner)[18]. Yet, while traditional mediation may have its flaws it has been described as “imperfect but advantageous”[19] as it helped people save money, time and preserve social harmony demonstrating a reason why informal justice may occur and be preferred within traditional Chinese society.

Informal justice continues to occur in China today however, it is influenced less by Confucian ideas and more by Chinese Communist ideology[20]. Communist ideas have changed the style and purpose of mediation in China as it has become more politicised[21]. Mediators are usually Communist party activists or members of an institution such as the police or Women’s associations[22]. Mediators are usually expected to solve party disputes based on communist party policies so that people could become educated about those policies[23]. Chinese Communist mediation firstly demonstrates how informal justice may remain in a society at all times despite a shift in national or official ideology and secondly how informal justice may become a tool of the state. Chinese Communist mediation is an example of informal justice being used as a tool of the state to control areas of citizen’s lives that it previous would not have control of as it can impose itself on people’s social relations that would not be governed by law. Chinese communist mediation includes extra-judicial mediation where judges will mediate disputes as judges but maintain the informal style of mediation while carrying more authority as a mediator[24]. Mediation has also gone through stages of favour within the Chinese government however, it has remained the dominant form of dispute resolution in the State[25]. Chinese Communist mediation has come to resemble formal structures a bit more since the focus on party polices has replaced the focus on reconciliation; nevertheless it is still considered much more of an art than a science[26] and has over maintained an informal nature. It is also important to consider that not all mediators are activists and not all mediation requires party activism[27]. Chinese mediation has been criticised for preventing the progression of a legal structure and culture in China which has inhibited the development of basic rights[28]  and could be considered as a criticism of informal justice in general. Chinese communist and traditional mediation is an example of how informal justice can adapt and change with a society and may exist at all times.

Informal Justice in Chinese-American Culture

Informal justice in Chinese-American culture may be used in contrast to informal justice in China as it shows the development of an informal process in a society that already has an established legal system and culture. Informal justice in Chinese-American culture also reveals how an informal process can develop in a society as a result of the failure of formal legal systems. Informal justice in Chinese-American culture was developed by first generation Chinese immigrants to America in the late 19th and 20th century[29].  Chinese-Americans developed their own institutions for informal justice parlty because of racial discrimination in America[30]. The case of the People v Hall [1854] categorised Chinese people as “Indian” which prevented them from giving their testimony against “white” people[31]. Other ways formal justice failed them is because of the language barrier that inhibited their ability to present their case in court, the system was expensive, and judgements were not be in line with their cultural values[32]. Chinese cultural values at the time of the first generation immigrants were influenced by Confucian values under the Chi’ing dynasty of non-litigation and social harmony[33]. Informal justice in Chinese-American culture was also a result of what D.Y Yuan described as “voluntary segregation involving involuntary factors” in America[34].  In other words, Chinese-America immigrants chose to form their own institutions and businesses in “Chinatowns” as a result of involuntary factors such as American racial discrimination and hostility to Chinese people encroaching on the American labour market which resulted in Chinese people going into non-competitive occupations or businesses[35]. Other influences that resulted in the development of Chinatowns and their own informal justice process was a shared culture and language among the Chinese immigrants who were predominantly at the time from the Kwangtung province[36]. Informal justice in Chinatowns mainly relied on mediation similar to traditional Chinese mediation except that there were more established institutions that helped with mediation such as the Chinese Consolidated Benevolent Association[37] and the Family Associations[38]. Mediation did take place privately with the use of friends or families acting as third parties but these institutions were also available for more assistance[39].  These institutions would be called upon to help in personal and civil disputes while largely excluding criminal cases[40]. The institutions did not rely on rules or procedure; they required voluntary cooperation in order to resolve disputes and focused on ideas of equity and fairness[41]. However, mediation in Chinatowns would also rely on the shared cultural pressures of saving “face”, compromise and social harmony and they did have some power to impose economic pressure and social pressure[42]. Some criticisms of informal justice in Chinatown were that it was often unfair if one party had more power or respect because it resulted in favouritism, it favoured community harmony and traditional values which maintained conservative ideas and inhibited progression and it favoured compromise which invalidated some valid claims[43]. On the other hand, it did yield multiple benefits such as helping Chinese immigrants adjustment to American by saving them from the humiliation, discrimination and injustice of the courts[44] which may have caused tension between them and the American government, giving Chinese-Americans greater autonomy[45] and reinforcing their community as a whole by preserving cultural values.  However, over time mediation in Chinese-American culture has decreased as the barriers to accessing formal justice have decreased by the introduction of civil rights into America and because over many generations Chinese-Americans have begun to assimilate into American culture[46]. Yet, the informal processes have remained and have slightly changed with Chinese-American culture.

Informal justice in Chinese-American culture illustrates that informal justice can be found in a society not only as a result of a flawed legal system but also because of a desire for social harmony, cultural preservation and cultural affirmation. The existence of informal justice even when former barriers to formal justice have been removed demonstrates that informal justice can be preferred over established formal justice. Further, illustrating how informal justice can exist in a society at any time.

Gacaca Courts

The Gacaca courts may be a contentious example of informal justice. Gacaca courts were revived by the Government after the Rwandan genocide of 1994 in order to deal with incidents that occurred between 1990 and 1994 and relieve pressure on the overburdened court system[47] . Gacaca derives its name from its meaning which means “grass” [48] and was traditionally and informal process where older respected men in the community would have meetings or resolve conflicts regarding matters such as marriage, succession, injury or land disputes[49]. Gacaca courts were based on communal values and did not have any strict procedures or rules[50]. The reason the reintroduced Gacaca courts may be a contentious example of informal justice is because their jurisdiction was established by law[51] and they considered criminal matters which were not traditionally considered[52]. This involvement of government and requirement to interpret legislation by the Gacaca took away from its informal nature making it a more contentious example. However, it may still be considered as a form of informal justice in that it maintained some of the identifiable elements as mentioned in the introduction above. The Gacaca judges were lay people who were elected by their community[53], the courts were still accessible to the ordinary people, they did not have strict rules and procedure that govern the process, and they did have the potential to heal the wounds in a divided community by focusing on promoting harmony[54].  However, these informal elements may be criticised because Gacaca courts lacked the due process that would normally be required for fair trials in relation to criminal matters[55]. They may also be criticised because they required ordinary people with no legal education to interpret and apply complex criminal law regarding accountability for crimes such as crimes against humanity[56]. Other concerns include a potential risk that they may be used to settle personal scores[57] and may cause division in the community as judgements may favour one group over another[58].  However, as has been shown in the examples of China and Chinese-American culture informal justice is not always “just”.

Gacaca courts may be examined as an illustrative example of informal justice existing in all societies at all times for multiple reasons. One reason is that when compared to informal justice in China it demonstrates how a significantly different society may develop its own form of informal justice which potentially suggests that informal justice occurs in all societies. When compared to informal justice in Chinese-American culture it validates support for the argument that informal justice may occur in societies where the formal legal system has failed or is inaccessible to members of that society. Yet, the Gacaca courts like the other examples, displays how informal justice may be preferred because of its traditional values or focus on social harmony demonstrating that informal justice may exist in all societies at any time. Finally, Gacaca courts expose how informal justice may also fail the society it serves and may be used as a tool by the government to circumvent rules and procedure in order to alleviate overburdened legal structures.

Cautionary remarks

Before coming to a conclusion it is important to deal with some critical issues. While, this essay has largely argued in favour of the title that informal justice and be found in all societies at all times it is also important to consider some criticism of that statement. The statement may be criticised as being too sweeping. It is also perhaps too presumptuous to state definitively that informal justice occurs all the time. This essay is limited because it does not discuss the existence or non-existence of informal justice in every society which means arguing informal justice occurs in “all societies” may be too broad. However, the examples provided have focused on informal justice in various societies around the world which may be indicative of the global trend of informal justice.

Conclusion

In conclusion, informal justice can be found in multiple societies at different times and in variety of context. As is illustrated by the examples informal justice varies in method across societies but maintains many of the identifiable elements mentioned in the introduction.  Yet, as stated earlier it may be too broad and too presumptuous to say it occurs in all societies at all times. However, the illustrative examples have attempted to identify that informal justice systems sometimes occur before the existence of formal justice and are created as a result of the failures of formal justice. Informal justice in China displays the continuing existence of informal justice regardless of government interference. Informal justice in Chinese-American culture may have declined as formal justice has become more accessible but it does remain as an alternative option and has endured cultural changes. Chinese-American informal justice also demonstrates the existence of informal justice in a state that does have an established legal culture and system.  The Gacaca courts in Rwanda show how informal justice may be created or revived by a state as a method to alleviate an overburdened court system. Gacaca courts may further evidence that informal justice may occur both in times of stability and crisis. The illustrative examples as a group may highlight the global scale of informal justice and its continuing existence in those societies. If “law [or formal justice] begins where community ends” then these examples may illustrate how informal justice may occur in societies as a method of preserving community and promoting social harmony.

[1] Auerbach, Jerold S. “Justice without Law?” New York: O.U.P., 1983. Print, pg.5

[2] Roberts S and Palmer M, “Dispute Processes: ADR and the Primary Forms of Decision-Making” (2nd edn, Cambridge University Press 2005)

[3] Ibid

[4] Stanley Lubman, “Mao and Mediation: Politics and Dispute Resolution in Communist China”, 55 Cal. L. Rev. 1284 (1967),

[5] Ibid

[6] Doo, Leigh-Wai. “Dispute Settlement in Chinese-American Communities.” The American Journal of Comparative Law, vol. 21, no. 4, 1973, pp. 627–663. http://www.jstor.org/stable/839082.

[7] Opt.cit.no 4

[8] Ibid

[9] Ibid

[10] Ibid

[11] Ibid

[12] Merry, Sally Engle. “Anthropology and the Study of Alternative Dispute Resolution.” Journal of Legal Education, vol. 34, no. 2, 1984, pp. 277–283. http://www.jstor.org/stable/42892686.

[13] Opt.Cit.no 3

[14] Ibid

[15] Ibid

[16] Ibid

[17] Opt.Cit.no 4

[18] Opt.cit.no 3

[19] Opt.Cit.no 4

[20] FU, Hualing and Palmer, Michael (2015) “Introductory essay to the special issue: Mediation in contemporary China: Continuity and change.” Journal of comparative law, 10 (2). pp. 1-24

[21] Ibid

[22] Opt.Cit.no 4

[23] Ibid

[24] Ibid

[25] Opt.Cit.no 20

[26] Ibid

[27] Opt.Cit.no 4

[28] Ibid

[29] Opt.Cit.no 6

[30] Ibid

[31] Ibid

[32] Ibid

[33] Ibid

[34] Yuan, “Voluntary segregation: Study of New Chinatown” Phylon 256 (Fall 1963)

[35] Ibid

[36] Opt.cit.no 6

[37] Ibid

[38] Ibid

[39] Ibid

[40] Ibid

[41] Ibid

[42] Ibid

[43] Ibid

[44] Ibid

[45] Ibid

[46] Ibid

[47] Sarkin, Jeremy. “Promoting Justice, Truth and Reconciliation in Transitional Societies: Evaluating Rwanda’s Approach in the New Millennium of Using Community Based Gacaca Tribunals to Deal with the Past.” International Law FORUM Du Droit International 2.2 (2000): 112-121

[48] Sarkin, Jeremy “The tension between justice and reconciliation in Rwanda: Politics, Human Rights, Due Process and the role of the Gacaca Courts in dealing with the Genocide.” Journal of African Law, 45(2), (2001): 143-172

[49] Ibid

[50] Ibid

[51] Ibid

[52] Opt.cit.no 48

[53] Ibid

[54] Opt.cit.no 49

[55] Ibid

[56] Ibid

[57] Ibid

[58] Ibid

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s