INTEGRATIVE JUSTICE: Presentation for National Strategic Plan on GBVF (Pillar 3)
A FUNDAMENTAL SHIFT: TOUGH MINDS, TENDER HEARTS
In ancient times the lawyer was the healer in society. In the same way as the physician was the healer of the body, the lawyer was looked to in order to weave back together the unravelled threads of the tapestry of society. This was essentially the work of restoration of relationships that had been breached, injured or broken.
In modern times, the practice of law and the justice systems that it serves, has tended to become more and more rules based. And as with many professions and structures, often substance gives way to form. And so we may find a heavy bent on procedural justice or it’s pursuit and sometimes at the expense of substantive justice. Form over content, if you will.
The entire universe functions according to law. Our bodies function according to certain laws. There are laws that govern how healthy cells function. At a human physical level, we are at our healthiest when there is a head, heart balance. Or more comprehensively a head, heart, spirit, body balance. We are healthy when these aspects are integrated-they work as one. We become unhealthy when we live partially or in parts of ourselves. When we are all heart, we may become unhealthy. If we live mainly up in our heads, we may become unhealthy. If we are all spirit and we ignore our intellectual and physical well-being, we may become unhealthy. If we are all physicality and we ignore our intellectual, emotional and spiritual beings, we may become unhealthy or un-whole. All the different parts of ourselves are meant to work together in an integral way. We work best as whole systems when all the parts of ourselves work together as an integrated whole.
In the same ways, systems function best, serve society best when they work integratively. And so professions and administrative systems that serve society do well to adopt a whole systems approach.
So the integrative approach to law, to justice is that every problem, every legal dispute is best solved when regarded as and properly located and understood within the system that it is a part of or the system from which it manifests. An integrated, problem-solving approach to injustice is alive to the idea that we cannot solve problems and disputes in isolation or in a vacuum.
It also understands that what we do to one part of a system we do to the whole. Just as what we do to one part of our bodies, we do to the whole. What we do to one organ affects the whole. What we do to one cell, affects the whole.
WHAT IS THE SHIFT?
The shift is from two parties as opponents in a divorce dispute to two people who are part of a whole system, that must function, albeit, in a modified format, as a whole system beyond divorce particularly of there are children.
The shift is from the state in pursuit of an accused person to the state and accused as parts of a whole. The one part has allegedly injured the society that the state represents. How does each part come away with what it needs. If we deny that the injurer has needs and must be subject only to just desert then we participate in keeping cycles of violence firmly in place. The most dangerous humans are the ones with unmet needs. We know that.
The shift is from commercial partners locked in litigation in which one will emerge the winner and the other the loser to how do we repair what went wrong in ways that each will came away with what they need.
The high point of justice is that each party comes away with what they need and not just what we think they deserve.
In her book, Lawyers as Peacemakers, J Kim Wright quotes the following from Sheila Boyce:
‘Society made big advance(ment)s by requiring symbolic battle rather than actual battle.’ Boyce goes on that this symbolic battle is litigation in which each side presents their claims before a member of the elite who will then decide a winner and a loser. Law school assumes that this is the best environment for the practice of law where lawyers either do battle to resolve problems or they assist their clients in pursuit of means to avoid the battle. But there is always the underlying assumption that litigation may happen and so information and intentions are kept confidential and if the battle happens it is on the basis of win at all costs.
This does not foster a justice understood as rightly related individuals, making up rightly related families, making up rightly related communities and so on. What this does do is that it entrenches our ways of working on problems in parts, or partially, isolated a way from a the whole that each individual is a part of. The result is that collaboration, co-operation and problem-solving are not fostered and so we keep at trying to deal with the brokenness within our society symptomatically where the ‘cure’ is often convictions, incarcerations, suspensions, exclusions and the dichotomy between winners and losers.
Boyce says that in a similar way, business people incorporate themselves to protect themselves from liability. Now we have this huge, unwieldy and inhumane system in which those who have the most money, wield the most influence and power, profits are everything and millions go without what they need. She says that millions more spend their lives in prison and that lawyers and judges can be the linchpins in this system. The fundamental assumption is that we are separate and apart, potentially in conflict with each other, there is not enough to go around and that the strongest, wealthiest and smartest must be well-defended.
When someone commits a crime, we aim to convict, separate. Punish and deprive that person for a certain period of time. At some point, the thoughtful amongst us will take a look at the results and outcomes and start to question them-first the outcomes and then the assumptions that underpin them and keep them in place and we will say this is unsatisfactory.
Many lawyers come to feel jaded and dissatisfied with what they do with their time and energy, she says.
So we come to the central question.
IS HUMANITY A WHOLE, INTEGRATED SYSTEM WHERE EACH PERSON IS TO BE TREATED WITH LOVE AND COMPASSION OR IS EACH PERSON SEPARATE AND ENTITLED TO PURSUE HIS OR HER OWN EGOIC INTERESTS TO THE DETRIMENT OF AND WITHOUT REGARD TO THE EFFECT ON OTHERS?
Boyle says that this is more than about making lawyers happy, it is about changing the relationship between citizens and jurisprudence.
And so how do we change this relationship.
J Kim Wright Identifies a number of Vectors.
- Restorative Justice-addressing structural issues and shifting towards a justice that restores
- Therapeutic Jurisprudence-specialised problem-solving courts-Children’s Court, Family Court, Sexual Offences Court
- Collaborative Law
- Holistic Law
QUESTIONS FLOWING FROM THE CENTRAL QUESTION
Those who answered the central question in the affirmative have started to question the existential environment surrounding the legal and justice system:
What is we are not all separate and at odds with each other?
What if criminal justice is dehumanizing and degrading and keeps violence firmly in position in society?
Maybe litigated divorces are bad for parents and kids?
Maybe those who smoke weed should not be in prison?
Maybe sending the perpetrator to prison does not make them whole and does not stop the crime.
Maybe litigators are excited and energized by the battle but go home and wonder what they are contributing to.
By Sheena Jonker
RECOMMENDED READING AND SOURCES
J Kim Wright, Lawyers as Changemakers (S Jonker and Gabriela McKellar are contributors)
J Kim Wright, Lawyers as Peacemakers
ABOUT THE PRESENTER
SHEENA ST CLAIR JONKER
She obtained a BA in Legal Studies and Religious Studies from UKZN in 1992 and then obtained a postgraduate LLB in 1994 also from UKZN
She practiced law as an attorney for a decade as a general practitioner and also as a conveyancer
She taught law at University Level for 15 years
She had developed an interest in Alternative Dispute Resolution right at the beginning of practice
After the birth of her second child she stopped practising and took a year long break. After that she started to formally develop her passion for ADR and Restorative, non-adversarial systems and methods. She founded ADR Network SA which is a private Dispute Resolution Agency, training and development agency for mediators and arbitrators and also operates as a voluntary regulatory and compliance body in ADR
She is consulted widely both nationally and internationally for her expertise in restorative-justice informed dispute resolution processes across most areas of legal disputes. Past students of hers include local lawyers, judges, educators and international lawyers, judges and educators.
She also runs an NPO, The Access to Justice Association of SA which mobilizes dispute resolution resources for vulnerable persons and poor communities across Southern Africa.
She speaks and writes extensively about the promotion and development of non-adversarial and restorative methods in law reform projects and in organizational systems and structures.
Contribution to Lawyers as Changemakers, J Kim Wright (American Bar Association)
Various articles in Media for Justice
Various Articles in Thought Leader
Contributing Paper to Lawyers as Peacemakers Conference, IDRA, Unisa College of Law (2016)
Contributing Paper UNISA Labour Law Conference 2017
Shortlister: Hague Centre for Innovation in Law, 2016 (Access to Justice for Children)
Nominee: Pro Bono Awards, 2016
SAMLA Medico-Legal Mediator
Co-Chair-International Society for Therapeutic Jurisprudence (SA Chapter)
Member-International Integrative Law Movement