Chapter 2: The Social Context of Dispute Settlement and the Rise of Law PDF

Chapter 2 The Social Context of Dispute Settlement and the Rise of Law by Rodney Kuenemana...

Chapter 2 The Social Context of Dispute Settlement and the Rise of Law by Rodney Kuenemana University of Manitoba Evan Bowness University of British Columbia Slides Prepared by Stephen Schneider Saint Mary’s University Copyright © 2020 by Top Hat 2-2-2-2-1  Learning Objectives Understand some of the differences between small-scale societies and complex industrial societies. Trace the changes from community-based dispute resolution processes in small-scale societies to the law created and enforced by the state in industrial societies. Understand the emergence and consolidation of power in human societies and how this concentration has made it difficult to control the actions of those who have power. Copyright © 2020 by Top Hat 2-2  Learning Objectives (cont.) Discuss how law is shaped by various interests, the limitations of relying on the state to uphold social order, and some of the threats to contemporary state legitimacy and the rule of law. Critically analyze the state’s focus on street-level crime. Understand the importance of restorative dispute settlement processes in small-scale societies and relate this to their recent reappearance in modern state systems. Understand why knowledge of social and historical context is important in understanding the existence and operation of legal systems. Copyright © 2020 by Top Hat 2-3  Introduction Criminal laws are somewhat new; historically, harms between individuals were resolved by various forms of redress without state involvement. Throughout history, societies have established moral codes to dictate acceptable behavior, but not all have created formal laws. Laws require a central authority, like a state, to develop and enforce them. Before formal legal systems, social order was maintained through different methods. In small-scale societies, people knew each other personally, so when conflicts happened, it was up to the individuals or their families to restore harmony and resolve disputes. The state is an institution that claims the exclusive right to develop and enforce compliance with criminal laws. In criminal law, the state declares itself the injured party based on the type of offence. Criminology focuses on these laws. To understand social order, we should view criminal law in a historical and social context that considers the full spectrum of dispute settlement practices. Copyright © 2020 by Top Hat 2-4  Introduction This chapter examines how the methods of resolving disputes have evolved from hunting and gathering societies to industrial ones. It emphasizes the importance of understanding the social context and class structure changes in relation to dispute resolution and law. The chapter argues that as societal and economic patterns shift, so too do the approaches to handling conflicts. Copyright © 2019 by Top Hat 5 Dispute Resolution in Small-Scale Society Copyright © 2020 by Top Hat 2-6  Small-Scale Society and the Origin of Law For most of human history, the mode of production was hunting and gathering. Within communities: – Cooperation and kinship ties were the essential means of preserving harmony and restoring order. – Many of these societies had no centralized structure for decision making. These communities had to rely on varying mechanisms to keep the peace and restore order Copyright © 2020 by Top Hat 2-7  Small-Scale Society and the Origin of Law Collective solidarity—life was an exercise in mutual survival. They were aware of their individual vulnerability and realized that their collective life was an exercise in mutual survival. Subsistence economy: Everyone had roughly the same amount of belongings. There was no surplus. This made it necessary to share the fruits of the days hunting or foraging. Without surplus, there was little need for a state; everyone was of roughly equal status. (food was a group possession) They were unable to produce or store large amounts of food; this meant that food gathering and hunting were regular cooperative activities. Everyone received an equal share, regardless of the extent and nature of each one’s contribution These groups were often nomadic, which made accumulation of goods difficult. Copyright © 2020 by Top Hat 2-8  Small-Scale Society and the Origin of Law In small-scale societies with no surplus resources, material inequality and formal state institutions didn’t develop. Authority was based solely on the collective will, without any independent power structures. Power came from influence, as determined by personal attributes, not accumulation of goods. This influence was based on attributes like hunting skill, wisdom, or generosity, rather than material wealth. Social status was collective and could be granted or revoked by the group, not a personal possession. Group members were reluctant to harm or wrong one another, because they relied on each other for subsistence. Each member learned to cultivate restraint and impulse control to prevent the breakdown of a working order. Social circumstances fostered the development of self control, the avoidance of disputes, and the tolerance of human foibles. Copyright © 2020 by Top Hat 2-9  Small-Scale Society and the Origin of Law Members had to control their hostility, greed, and envy to survive. Members were expected to have lifelong interactions with one another. – This discouraged quarrelling (argue and fight). – There was a fear of reprisal (retaliation). – There was a desire to keep hostilities from surfacing and disturbing the business of living. There were effective punishments for individuals who consistently went their own way Copyright © 2020 by Top Hat 2-10  Dispute Settlement in the Absence of Surplus and Resource Inequality Many disputes in hunter/gatherer Other common societies causes for dispute concerned included the women, who were following: considered Improper food valuable distribution, asymmetrical gift resources. exchange, laziness, stinginess, theft, and murder Copyright © 2020 by Top Hat 2-11  Dispute Settlement in the Absence of Surplus and Resource Inequality The goal was to restore harmonious relationships between the parties in conflict in mutually agreeable ways. Absence of political institutions meant disputants had to resolve conflict themselves. Community pressure was placed on parties in a dispute to meet and end the discord. The approach was to undertake a general expression of all issues that created friction to learn the other party’s need and expectations. This helped keep the conflict from escalating. It also brought the dispute to a mutually satisfying conclusion. Copyright © 2020 by Top Hat 2-12 Self- or Kin-Based Redress The primary method of redress: Self-based redress: the harmed party Kin-based Self- or took matters into his/her own redress: a member of kin- hands in order to seek a family sought a based settlement settlement on behalf of a (revenge, redress successful harmed family member negotiation, some kind of compensation) Copyright © 2020 by Top Hat 2-13  Self- or Kin-based Redress Punishment ranged from public criticism, shaming rituals, and temporary or permanent ostracism, to expulsion from the group, blood feuds, and reprisal killings. The injured party had to initiate the dispute resolution process. There were customary expectations of appropriate ways to redress conflict. – If it was too harsh, it could lead to group disapproval and sanctions. Disputes did escalate into blood feuds but pre- modern societies were not necessarily violent. Copyright © 2020 by Top Hat 2-14  Self- or Kin-based Redress Each small-scale society had a body of custom (coupled with the fear of reprisal): this acted as a brake on escalation by defining the appropriate level of redress for various offences. Clearly defined notions of right and wrong behaviour existed. Formalized civil or criminal law was not necessary to restore order. – An individual who violated a custom suffered the consequences. Copyright © 2020 by Top Hat 2-15  Advisor Systems This was a less common method of dispute resolution. Disputants sought the counsel of an advisor. Advisors tended to be high-status men who were – typically recognized hunters, speakers, or warriors – public repositories of wisdom about customs and rituals Advisors acted as a moral authority; they – interpreted dispute based on facts each side presented – made recommendations based on custom – could not enforce compliance Settling disputes harmoniously increased their status as advisors. Copyright © 2020 by Top Hat 2-16 The Transformation from Small-Scale Society to the State Copyright © 2020 by Top Hat 2-17 Video Copyright © 2019 by Top Hat 18  The Slow Emergence of Social Power and Inequality Small-scale societies avoided outbreaks of serious discord by keeping power spread out. – Each community member exercised some control over others, so power remained diffuse. Communities dealt with discord in ways that enabled victim and offender to regain harmonious interaction. Social power was generally shared and was kept under the control of the community as a whole. The group moved against the interests of individuals or factions when their actions posed a threat to group cohesiveness. Copyright © 2020 by Top Hat 2-19  The Slow Emergence of Social Power and Inequality New forms of power led to important changes. Economic surpluses gave rise to “pyramidal” power. – A small elite class controlled decision making. This was the state in its most rudimentary form. Over the last 6000 to 8000 years, hunting and gathering societies transformed into pastoral, horticultural, agricultural, or industrial societies. The mutuality of face-to-face community-led redress was ruptured at some point during this transformation. Copyright © 2020 by Top Hat 2-20  The Slow Emergence of Social Power and Inequality Private property is increasingly concentrated power in the hands of a few families. Members who privately owned land and livestock were able to generate a surplus. This surplus enabled them to rely less on the community for their survival Women began to be defined as property. – This was for both their labour and reproductive capacity (to produce future heirs of individually held property). 2-21 Copyright © 2020 by Top Hat  The Slow Emergence of Social Power and Inequality The new modes of production allowed those more powerful to take surplus value from those less powerful. The ability to have other people generate personal wealth greatly accelerated patterns of concentrated wealth, resources, and power. Less powerful segments of society found it hard to defend their interests and resist those social forces that were compromising their interests. The state emerged in agricultural society to Copyright © 2020 by Top Hat 2-22 Transformation in the Forms of Dispute Resolution Copyright © 2020 by Top Hat 2-23  Changing Forms of Dispute Settlement As societies changed, so did the disputes that occurred. Surplus goods and private property allowed for theft, as well as payment as compensation for offences. Increased social inequality made theft attractive to the “have-nots.” Contracts, rents and wills emerged, requiring an increasingly complex body of civil laws. The creation of chiefdoms, and later, states, paved the way for offences such as treason, libel, and slander. – This evolved into criminal law (offences against the state). Copyright © 2020 by Top Hat 2-24 A Brief History of the Modern State Copyright © 2020 by Top Hat 2-25  A Centralization of Power England transformed from land-based feudalism to the modern capitalist industrial society. Feudalism was a social system based on the tenure of land, which was the dominant form of capital in an agrarian mode of production. The basic model of feudalism was a central farm owned by a landlord, and small land holdings for a class of farm labourers. As feudalism developed, the notion of collective responsibility was replaced by individual responsibility. – Money settlements and fines were used to settle serious disputes. Copyright © 2020 by Top Hat 2-26 A Centralization of Power When feudal lords consolidated power in England, they developed laws to address disputes. Under this system, trial by ordeal (walking on hot coals or reaching into boiling water to pick up a pebble)was used to establish guilt or innocence for those who could not find another way to settle a dispute. Informal dispute settlement practices used in small-scale societies were undermined and replaced by feudal lords and their laws. Copyright © 2020 by Top Hat 2-27  A Centralization of Power Following the Norman Invasion, William the Conqueror declared himself “supreme landlord” of England. – Consequently, all individuals who held land held his land. Norman kings saw themselves as the injured party when a crime was committed (the harm disrupted their peace). – Compensation for offences was paid to the king. The central authority of the king emerged to replace the authority of feudal lords. The king’s system of writs and courts created a common law available to all who had the Crown settle disputes, rather than their kin or lords. Copyright © 2020 by Top Hat 2-28  The Coalition of Merchants and Monarchs: The Rise of the William the Merchant Class Conqueror needed to find new ways to finance the military to maintain legitimacy. Merchants provided money to the Crown in exchange for land as collateral and safe trading. The enclosure movement of new owners conflicted with peasants’ rights to hunt, fish, and graze. – Severe punishments were introduced to stop these feudal practices. The growth of commerce, money, and banking resulted in transactions governed by law instead of custom Copyright © 2020 by Top Hat 2-29  The Coalition of Merchants and Monarchs: The Rise of the Merchant Class The volume of trade, longer distances, and joint ventures required a system of law and a court system to enforce it. Legal contacts and lawyers grew in importance. The merchant class helped the Crown consolidate power, in exchange for legislation and enforcement favouring merchants. Copyright © 2020 by Top Hat 2-30  The Coalition of Merchants and Monarchs: The Rise of the Merchant Class Commerce and money increased in importance. Growth of banking institutions, use of paper currency, and other instruments of credit created new occasions for theft. International trade, spurred by Britain’s colonial empire, also necessitated an expansion and refinement of the concept of theft. Thus, new laws were enacted addressing theft. – Embezzlement laws were enacted to make theft of paper money and commercial bonds a crime Copyright © 2020 by Top Hat 2-31 Law and Transition to Capitalism Copyright © 2020 by Top Hat 2-32  Law and Transition to Capitalism The king sought to further consolidate power and threw his support behind the merchant class. In return for taxes and loans, the Crown created laws of commerce (for example, contract law) that benefited merchants – This strengthened their class position and increased their fortunes. – It also paved the way for lawyers in the new legalistic, capitalist mode of production. The growth of commerce and trade, spurred by the Industrial Revolution, required greater uniformity and Copyright © 2020enforceability by Top Hat of 2-33  Law and Transition to Capitalism A system of laws, and a court system to apply them, was seen as essential if trade was to stabilize and grow. Capitalism now directed the mode of production. Legal contracts became the dominant mechanism that tied social relationships together in the new social order. The power of the nation-state was solidified around the interests of commerce, further eroding the role of local customs and kinship. The new social Copyright order© 2020 was predicated on law,2-34 by Top Hat  Law and Transition to Capitalism The power of the bourgeois class grew as the feudal nobility and landed aristocracy’s power waned. Peasants and workers were not represented in early Parliament. – Thus, the modern state developed under the influence of the bourgeoisie. The rise of the labour movement would come later. – However, the power of organized labour has never matched that of organized business. Advances have been made in democratizing the state. Copyright © 2020 by Top Hat 2-35 – Contemporary State Power Copyright © 2020 by Top Hat 2-36  Contemporary State Power The state became the dominant instrument of settling disputes, – It was backed by the police and the military. Laws became the principal means of regulating human activity and ensuring social order. Laws and administrative directives became the legal apparatus that created the basis of modern nation-states. – Property, commerce, real estate, labour, and contractual agreements are all regulated by law. Copyright © 2020 by Top Hat 2-37 Interest Groups and the Law Some laws History also embody a reveals the consensus or influence of special agreement that interest groups the act is wrong: and “moral assault, theft, etc. entrepreneurs”: Criminalizing certain drugs Rape legislation Copyright © 2020 by Top Hat 2-38  Interest Groups and the Law Historically, the merchant class has been adept at shaping state laws to protect its interests, but they are not alone. Cultural, ethnic, minority, class, economic, and political groups also lobby the state, often conflicting with each other. Rape laws historically protected property interests within patriarchal families, treating women as property. Feminist activism has led to significant reforms, including criminalizing marital rape and reclassifying rape as a crime against the individual, though challenges persist in fully protecting women from sexual assault.. Copyright © 2019 by Top Hat 39 Class Discussion (Video) Gun control remains a highly polarizing issue in American politics, with efforts to restrict gun ownership and use frequently failing despite rising mass shootings. Recent data shows an increase in mass shootings, with some of the deadliest incidents occurring between 2017 and 2018, including the Las Vegas, Texas, and Parkland school shootings. Mass shootings are only a small part of the broader gun violence problem in the U.S., where over 600,000 people have been shot in the past 22 years. This gun violence is seen as a public health crisis by many professionals, yet the National Rifle Association (NRA) has effectively blocked gun control reforms and restricted federal research on the issue. The 1996 Dickey Amendment, influenced by gun rights advocates, halted the Centre for Disease Control (CDC) studies on gun violence, citing concerns of bias and gun control advocacy. Student survivors of the Parkland shooting emerged as a powerful force advocating for gun control, successfully pushing for discussions on raising the legal age for firearm purchases. However, their efforts faced opposition from the NRA, which blocked proposed reforms and influenced policy to focus on firearms training for school employees. Despite some progress in local elections, such as a loss for an NRA- endorsed incumbent in Colorado, NRA-backed politicians continued to win key races, including in Florida. This ongoing influence reflects the complex and contentious nature of gun control in American politics. Question: Law creation is heavily influenced by the pressure that various interest groups bring to bear on the state. Given the nature of electoral  A Failure to Regulate Creation of law is heavily influenced by the pressure that various interest groups bring to bear on the state. Transnational corporations are some of the most powerful special interest groups. They greatly influence state policies and laws. They have amassed so much economic power that they are hard to regulate. When a government is too restrictive (when environmental regulations are too strict, or when occupational safety rules are too rigid) in regulatory policies, these corporations can relocate to another country. Cases of failure to regulate the crimes of transnational corporations include: – The Ford Pinto case – Workers’ exposure to asbestos – Exploitation of free trade zones Copyright © 2020 by Top Hat 2-41  A Coming Crisis in State Legitimacy? The rule of law depends on the willingness of citizens (majority) to comply. – This means that the state is perceived as legitimate by the citizenry. Legitimacy of the state is questioned if it cannot provide peace, security, good government, and protection. Any state that fails to live up to its end of the social contract will eventually face a crisis of legitimacy. – This can lead to civil unrest, and threaten the state’s power. Copyright © 2020 by Top Hat 2-42  A Coming Crisis in State Legitimacy? Dissatisfaction is growing with the nation-state system because of its evident failure to regulate seriously harmful behaviour. Examples of potential sources for state delegitimization include the following: – Underregulated practices of big corporations introduced massive amounts of toxins into the air, water, soil, and food chain, with severe and profound consequences for human health – Ecocide: an assault on an entire ecosystem resulted in loss of diversity, loss of habitat, species extinctions, and deformities of plant and animal life forms – Growing and extreme levels of inequality: The failure of nation- states to control egregious disparities of wealth has denied a large part of humanity a decent standard of living These are not hypothetical concerns. – Signs of significant social upheaval do occur. – For instance, the “Arab Spring” uprisings. Copyright © 2020 by Top Hat 2-43  Video Copyright © 2019 by Top Hat 44 Full Circle: Restorative Justice and a Return to Original Forms of Dispute Settlement? Copyright © 2020 by Top Hat 2-45  Full Circle: Restorative Justice and a Return to Original Forms of Dispute Settlement? Restorative justice programs are alternatives to the CJS. – These programs focus on repairing the harm done to social relationships because of crime. RJ represents a return to the dispute settlement modes of small-scale society. – The victim, the offender, and the community are active participants in the process. – Reintegration is the goal. – RJ can rebuild communities as well. Copyright © 2020 by Top Hat 2-46  Summary For most of human history, we lived in small groups. In small-scale societies, disputes were typically settled by the parties to the dispute or by their kinship groups While people in small-scale societies were relatively equal to one another, changes in the mode of production led to new social formations in which some families and individuals gained greater access to material surplus. – This led to the concentration of social power, inequality in society, and the emergence of elites, and in turn gave rise to the modern state. Copyright © 2020 by Top Hat 2-47  Summary The central authority of the state undermined local, kinship-based methods of resolving disputes. – Harms were seen as having been done to the state, which displaced the actual victim in the dispute. As the merchant class grew, social life became regulated by contracts enforced by the state. – The interests of the capitalist class became central to the modern state. Copyright © 2020 by Top Hat 2-48  Summary Law is created through a process in which various interests pressure the state. – Many laws recently have been created, or have not been created, to benefit large corporations. The ineffectiveness of the nation-state system to provide peace, security, and good government to everyone threatens the legitimacy of the rule of law. In recent years we have seen a return to restorative justice practices that are similar to those used in small-scale societies in the past. Copyright © 2020 by Top Hat 2-49