Justice Foundations for the Comprehensive Law Movement Dale Dewhurst Athabasca University New York – IALMH, 2009

Developing Alternatives to the Adversarial System Prof. Daicoff has identified 9 developing alternative dispute resolution / problem solving “vectors”*. Movement towards law as a healing profession – and the scope of the vectors is broadly cast. * Daicoff, Law as a Healing Profession, at p. 3-5.

Resemblances & Differences How do they “remain separate and vibrant movements of their own, while sharing common ground?" Daicoff: “within law and legal practice”. Scheff: “alternative approach to law”.

Questioning the Analytical Starting Points “alternative to law” & “within the law” may lead to: Unnecessary dichotomies & comparisons, Challenges to establish credibility v. the authoritative adversarial system, and Challenges to distinguish themselves and justify their efficacy v. the entrenched adversarial system.

Avoiding Cognitive Internalism Lawyers view legal norms as members of a group that accepts and uses them to guide conduct (Hart). There is a 'cognitively internal' point of view, from which an observer appreciates and understands another person's conduct (MacCormick).

The Breadth of Adversarial Norms Peczenik argues that adversarial system norms, even for positivists, go beyond the laws to include the institutional facts determined by the laws and their supporting and justifying rules. This hinders gaining a “fresh” perspective on the nature of the new developments.

A “Super-system” of Norms is Required. A higher order level of norms is required if: We wish to choose between new systems or critically examine their differences, Weigh and balance their respective prescriptions; or Evaluate their effectiveness.

The Question Is there a common underlying philosophical foundation that unites the vectors within the Comprehensive Law Movement while ensuring that they remain separate and vibrant movements in their own right?

The Thesis The answer is at once both very simple and very complex -- justice. In this paper I will discuss how an Aristotelian natural law virtue theory of justice can provide the solid theoretical and evaluative foundation required. Further, it will become clear why the CL Movement might be more appropriately named the Comprehensive Justice Movement.

Clarifying our Focus. Can’t concede that the adversarial system is “the justice system”. Better laws or better legal are only a means to the end of achieving a more complete attainment of justice for particular individuals, overlapping communities, and society. New vectors are sought because the legal system hasn’t been giving us what we want at a deeper level.

Surveying the Vectors Collaborative Law, Creative Problem Solving, Holistic Justice, Preventive Law, Problem Solving Courts, Procedural Justice, Restorative Justice, Transformative Mediation, and Therapeutic Jurisprudence.

Possible Additional Vectors Peacemaking, Truth and Reconciliation proceedings, Mediation (traditional), Mini-trials, and Arbitration.

Selected Definitions of “Justice” Corrective justice. Distributive justice. Justice as social contract. Justice as fairness. Justice as overlapping consensus. Justice as enforcement of rights (rights as trumps). Economic theories of justice.

Selected Definitions of “Justice” (con’t) Justice as entitlement. Justice as social justice. Justice as relative to social meanings & social creations. Justice as the harmonious compliance with the spirit/laws of nature. Justice as deontological compliance with the right rules or commandments. Juridical justice.

Aristotelian Justice Universal & Particular For Aristotle, we can only be as specific as the subject-matter allows. Much possible variety about how to structure particular societies. However, there are universal laws which need to be studied and then tailored to the particular culture.

Aristotelian Justice Societal and Individual Harmony Aristotle believed that virtue is when the parts of the soul, or the state, are acting in harmony. For individuals: moral virtue (universal) and practical wisdom (particular) are required. For society: legislative wisdom (universal) and political wisdom (particular) are required.

Aristotelian Justice Justice is Virtue Entire Justice is a harmonization of the possible virtues that may be instantiated by an individual or society. Not all virtues will be instantiated; however, a justly ordered state or a justly ordered individual life possesses awareness of what is gained or lost by choosing one path over another.

Aristotelian Justice Serves Excellence & Harmony Politicians, legislators and judicial officials must understand: natural justice and legislative wisdom, legal justice and political wisdom, individual merit and equitable judgment, how these combined lead to justice entire, virtuous fulfillment and happiness.

Conclusions on Aristotelian Justice Aristotle’s theory of justice provides: Universal laws to provide a broad guide to justice and a check on injustice, Principles for application of universal laws to particular societies, and Equitable principles for application to particular laws to individuals within those societies.

Conclusions on Aristotelian Justice Criteria for evaluating particular vectors: what aspect of justice, virtue and human happiness do they aim to serve; do they do so effectively? It puts legal systems and alternative dispute resolution vectors on equal footing. It doesn’t require the vectors to develop as alternatives or enhancements to the legal system.

A Comprehensive Justice Movement Because the end we seek is justice entire, combining the strengths of the adversarial system with the strengths of the other vectors leads to: A comprehensive justice movement.

Evaluating the Vectors E.g. – Therapeutic Jurisprudence. E.g. – Mediation. E.g. – Restorative Justice. E.g. – The Adversarial System. E.g. – Social Justice. E.g. – Juridical Justice.