The global village
It is often said, that in modern societies, the village is dead. Gone. Just an empty shell to sleep in. Our destiny is life in the megatown, a life among strangers. That is right. But also wrong. The villages have died. All but one; The Global village.
If we want to study a village of importance today, we must not go to the country-side, but to the very centre of countries. We must go to the City. Literally. We must go to London City, Wall Street, or the inner city of Tokyo, Singapore, may be even Wellington and Oslo. And arriving here, we must look for some of the best protected buildings, and within these buildings try to get access to some of the major enterprises occupying these premises. In my country, it might be one of the major oil-companies, or even better; one of the large law-firms. To enter their premises, is similar to enter a hut in an African village.
How can I utter such an absurdity?
By three good reasons. But as I list them, you will have to accept that in what follows, I have to simplify. I will give ideal-typical descriptions. But there are lots of exceptions around. I would have shared them with you if I had hours to my disposal, not only 3o minutes. Then to the reasons:
First; those living in the modern hut are linked to their neighbours in ways with functional similarities to the old ones; telephones, sometime integrated with TV-pictures, telephone-conferences often with groups and participants with oceans between, or Fax or @-mails. Linked together, and with a common cultural landscape from reading Financial Times, Wall Street Journal or The Economist.
Secondly; they are glued to each other, just as old fashioned villagers were. There is no other Globe available. They live there with the insight that they will have to remain, or leave for the desert.
Thirdly; the external authorities are far away, and with limited power. One modern law firm might have a greater legally trained staff than the whole Ministry of justice and Ministry of Interior put together. They know more of law, and dispose more resources, than their rulers.
This then, makes them also similar to old-fashioned villagers when conflicts loom. They have nowhere else to go, so they want to continue the relationship. But since they have no external authority to turn to for protection they are again forced into ordinary village behaviour. They must solve the conflicts with civil means. We know from personal experience or social anthropology that any attempt to punish other villagers, means to break off the relationship. It is to call for war. Conflicts in villages without external authority and where people intend to stay on, such conflicts will most often take a form whereby the parties create coalitions to muster some sort of balance in strength. After that ground-work is done, they meet and work towards civil solutions. If wrong acts have been performed, compensation to the victim, not pain to the offender, becomes the major answer where relations are to continue. As for the villagers everywhere, so also for General Electric.
Penal law is a clumsy instrument. It is one where we eliminate many concerns, and it is one based on dichotomies - all or nothing - guilty or not guilty. In many situations we are half guilty. If that half guilt is seen in the light of earlier misdeeds of the other party - or her or his associates - an opening is given for compromises. Civil solutions are more integrative solutions striving to preserve the social system as a body of interacting individuals.
In analogy to what happens in village law, lawyers in the global village will most often consider the totality of the situations, and look for peaceful compromises and compensation rather than the use of swords. They will, as peacemakers and mediators everywhere, be highly regarded and, in our culture, highly paid. Without a high reputation, they will in certain types of villages have troubles in creating peace. They will therefore guard their honour both against political involvement's and against clients of low regard. High salary is a corollary to high regard. In addition to money and prestige, they have probably also more fun than other types of lawyers. In their Global village, inside the limits of their economic-administrative system they are back to working with totalities. They have the fun of old-fashioned tribe-members in finding out about the law, participating in finding solutions all parties can live with, and thereafter the satisfaction in creating peace inside their system. They are engaged in an holistic activity directed towards peace, in contrast to a specialised one directed towards war.
The paradox is only, that as these lawyers are enjoying their
Global village, they are so often causing destruction of the remaining local ones. Their decisions on the economy are part of the driving forces in the international development of industrialisation. Their activities in their Global village are one of the key elements in the process of modernity. Their activities create the conditions where another type of legal personnel is called for, a type in extreme contrast to the civil one suited for village conflicts.
And here we are back to modern society, as we usually see it. Living amidst people we do not know, and never will come to know. This is a situation where penal law can be applied without restraint, particularly against those badly off. And is applied. And not only applied, but also purified as penal law. We can observe how the civil elements of penal law these days gradually are reduced in importance. The penal law becomes more and more a servant to the state. through elements of modernity as efficiency, quality control and demands for utility. The core example is the "Just desert model". This is what I in a recent paper call "industrialized justice". It is a form of justice to reduce variance, beautifully in harmony with the demand for efficiency and therefore easily accepted in our time. The purified just desert model - and also some of the more diluted types, are models where the complexities in conflicts are taken away to create a situation where what is called crime can be easily weighed against the pain to follow. In such a system, a robbery becomes a robbery, - independent of the endless variations that real life most often presents both regarding the act and the actor. To create just desert, one has to construct industrial simplicity.
Within penal law we have reached the opposite modality to conflict solution between equals. We have reached a situation with extreme inequalities between parties, and where representatives from the one party manage control of the other party. So also within the institution of law. The penal judge has in this process moved from being in close relation to the totalities of values, into an executive in a branch of crime control.
This whole development makes life miserable for many judges, as exemplified by the resignation of several US-federal judges. It is also one of forces behind the overload of the penal apparatus, particularly the prisons.
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Mediation, in one sort or another, can be seen as an attempt to counteract this. In the wake of modernity, mediation has in a way been re-born as an instrument to unload the crime control system, and also as a stimulant to local neighbourhoods. By and large, this is a very promising development. I am basically in favour of it, and want to strengthen the trend. But not uncritically. There are also problems ahead. Problems we must be aware of, and counteract. Most important, and paradoxically, the penal system might once more gain the upper hand: Mediation might develop into swift punishment without formalities. It might lead to increased control, - in analogy to what happened earlier in this Century with the treatment-ideology. What then took place, was that severe sanctions were imposed under the disguise of being treatment or education. What could not be done as punishment, became acceptable when it was seen as treatment.
We have in Norway today established mediation-boards for all municipalities in the country. We call them "konflikt-råd", that means literally boards to give advice in conflicts. The boards are split up to 40 major units, each with a full time paid administrator. They have to their disposal some 7-800 mediators. These mediators are paid from case to case. The whole arrangement is paid by the state with some ten million NZ dollars a year. Conflicting parties might go directly to the boards, but most cases come through the police. If agreement is reached in such cases, the police will drop the case.
According to my impressions, and I have kept relatively close contact to the boards, the development of the system has been relatively satisfactory. In the beginning, the police were reluctant to give away cases, but that has changed. There is also an increased stream of cases where the parties come directly to the boards. And they also take on new tasks: They move into schools and teach young people alternatives to violence; how to handle conflicts.
But there are also some dark clouds ahead, clouds related to the developments of industrialized justice.
The penal judge can be seen as a servant to the state. The next logical step - seen from the authorities point of view - is of course to convert also the mediation-boards into similar servants. That was exactly was happened in Eastern Europe during their old regime. The party took it all. This experience is the reason for a strong reluctance in Eastern Europe to have anything to do with neighbourhood-courts or comrade-courts to day. Before the Stalinist period these forms were very important in Eastern Europe. And today they are indeed needed, since the court-system operates so badly. But friends in the east have their memories. This might, however, be about to change. In Albania, a team of ethnographers has been engaged in assembling information on how the neighbourhood-courts operated in the old days. On the basis of this, an attempt is being made to re-create the boards.
But I understand the Eastern-European reluctance. There is every reason to watch out. We have already observed attempts to use the boards for penal purposes in Norway. The Attorney General has instructed his staff, and I quote his directive, that "as with other penal measures, mediation has as its primary goal to prevent new cases of crime"..."For many young offenders, it might be experienced as more serious to be confronted with the victim that to meet before a judge. And by having to fulfil an agreement reached in the boards, the offender might receive a sanction he feels is heavier than if he had received an ordinary suspended sentence. .... In more serious cases, it is - due to concern for general prevention - to be wished that the agreement contains an agreement that is strongly felt (inneholder en følbar oppgjørsordning)". The contract between victim and the offender is to be sent to the police. If the police do not think the agreement is of the type described by the general attorney, they can refuse to accept the agreement, and take the case to court.
Large firms or companies create other problems for the mediation-boards. Some will have guaranteed a minimum-compensation of, say 100 dollars, to let a case of shop-lifting go before the boards. And board-administrators might be tempted to take on cases of shop-lifting, they are mostly easy to handle and look good in the statistics. Others, particularly insurance companies, raise legal claims which would bring a young person into life-long slavery of debt if agreed on.
And the boards might succumb to some of these pressures. The boards consist of all sort of people. That was the intention behind them. They share the common indignation when children and young people misbehave. In addition; administratively they are under the Ministry of justice, a ministry accustomed to think in categories of utility and efficiency.
We were confronted with this, last term. Our institute was asked to take part in an evaluation of the boards. The state wanted to know if the money was well spent, and if the boards were efficient in solving conflicts.
And of course, we, in this case I, got immediately into trouble. Having worked with conflicts most of my life, I do not quite know what a conflict is. And what is more: What is a solution? Is it when parties stop hitting each other, stop screaming at each other, make peace, sign a contract, start co-operating, become friends? And what is efficiency? Might a measure be constructed based on the time between receiving information that a conflict is on and some sort of "solution" is registered? Not more than X weeks, exclaims the state. But my collaborator in this project - Jane Dullum - had a call the other day. It was from a board-member up in the valleys, a farmer. Now he wanted to quit the board. He had received a general letter with instructions from the Ministry of Justice. Here it was stated that all cases had to be solved within these X weeks. But, as he said in the quiet way of his district; it is not like this in our valley. The day he got the letter, was the opening of the elk hunt that year. Then the time for the late part of harvesting would follow. This is not the time for talks, he said. When he leaves, he will probably be substituted by a person with regular working hours. Probably one employed in a state- or local administration. There are no others with regular hours up there. The new one will certainly live according to the time-instructions from the ministry. But whose ways are the efficient ones?
There are also other dangers ahead. Dangers to look out for. The boards might themselves steal other peoples conflicts. And they might also come under too great a pressure through too great expectations directed towards them. They will never become "better" than their communities. If these communities have values deplorable to many among us, the boards will act according to the same values. That is what we call grass-root democracy.
But I will not end my presentation with these clouds as my major message. All the leaders of these boards meet each year. They discuss, they develop the system. I have attended several of these meetings, and I am struck by the independence of their arguments. In a way, they are more free than judges usually are. Judges are socialised through education, working towards careers. So are also civil servants. In Mediation Boards, there is no career, except towards perfection of their core activity. They are thus free to think about what would be good for mediation. Free to think around themes I have outlined here. And free to tune in to some undercurrent in our normative climate. I experience their meetings as fora where the totality of concerns within social systems are taken into consideration. And I have seen and heard, how representatives from the state, and also from the prosecution, have gained new insights and come to share some of the enthusiasm for a real alternative to penal law. If we are able to preserve the basic elements of our state, I think it is reasonable to expect that the mediation boards will not be co-opted, but instead will rescue some old-fashioned values and bring them back to the attention of the state and its citizens.