Participatory justice

Last updated

Participatory justice, broadly speaking, refers to the direct participation of those affected most by a particular decision, in the decision-making process itself: this could refer to decisions made in a court of law or by policymakers. Popular participation has been called "the ethical seal of a democratic society" by Friedhelm Hengsbach, a professor of Christian Social Science and Economic and Social Ethics at the Philosophical-Theological College Sankt Georgen in Frankfurt [1] and "the politics of the future" by Gene Stephens, professor of criminology at the University of South Carolina. [2] It is about people and relationships. [3]

Contents

Various authors have claimed that examples of participatory justice date back to civilizations as old as that of the Canadian Aboriginals and Ancient Athenians, even if the terminology had not been in use then. [4] [5] [6] [7] In the society of Canadian Aboriginals, citizens were given the opportunity to give their own account of a dispute in public and determine the proper course of action, which sometimes involved issuing a public apology. [6] [7] Elders were viewed as authorities due to their unique knowledge of the circumstances of community members. [6] [7] In ancient Athens, large popular courts, made up of 200 to 1000 randomly selected male citizens, shared in both functions of forming and of applying the law. [4] [5] The term "participatory justice" itself, however, was first used by Bellevue, Washington-based attorney Claire Sherman Thomas in 1984 to describe the process by which people act as responsible participants in the law making process, thereby contributing to causes of social justice. [8] In 1986, Gene Stephens first used the term to describe an alternative to the adversarial model of justice system used in court. [2]

Both definitions of participatory justice relate to the concept of participatory democracy, which shares similar aspirations: to provide the government with democratic legitimacy and make for a more inclusive, transparent, equal society, by allowing citizens to participate directly in political decision-making and lawmaking processes that affect their lives. [6] [7] [8] [9]

In rare cases, it also refers to the use of the Internet or a television reality show to catch a perpetrator. [10]

Judicial system

Overview

Participatory justice can refer to the use of alternative dispute resolution, such as mediation, conciliation, and arbitration, in criminal and civil courts, instead of, or before, going to court. [2] [11] It is sometimes called "community dispute resolution". [12] NGOs (Non-governmental organizations) may get involved in the administration of criminal justice. [12] [13] According to the National Advisory Commission of Criminal Justice Standards and Goals, delays in sentencing and lack of protection of rights of the accused contribute to attitudes of legal cynicism. [2] According to a large cohort of citizens, the guilty are freed while the innocent, and often the black and poor, are harassed. [2] The participatory justice model, in turn, attempts to restore public confidence in the legal system.

Whereas the adversarial and disposition system is often slow-functioning, expensive, and inconsistent, the participatory justice model is a cheap and efficient way of resolution-making. [2] [12] Rather than rely on expensive attorneys and expert witnesses, the model relies on volunteers from the community, who are trained in mediation and counseling techniques. [2] The resolution is often achieved quicker, because, by reaching a consent agreement implemented by all parties involved, there is no possibility of re-litigation. [2] In the participatory justice model, cooperation is valued instead of competition and reconciliation instead of winner-take-all. The need to protect the public and to respect the rights of ordinary citizens to a free but secure society are considered. [2] This in turn helps preserve positive relationships between the parties involved. [12] In modern-day Canada, for instance, community members are involved in almost every step of the judicial process, even before people are arrested and sent to court; community organizations establish working partnerships with police to focus attention on growing social problems, like child abandonment or housing code violations, and prevent crime. [9]

Not only does the participatory justice model promote inclusion, according to several authors, but also socioeconomic equality. The adversarial/dispositional system requires enforcing laws that often represent the will of those with the most educational and monetary resources. [2] As Stephens points out, most people who are perpetrators in a particular incident, whether civil or criminal, had also been victims at some point, so every person's circumstances should be taken into consideration. [2] Stahn mentions the importance of consulting victims at the reparation stage to determine whether they really believe the person who committed the crime against them is deserving of incarceration. [14] Once used primarily in Scandinavia, Asia, and Africa, participatory justice has been "exported" to the United States. [15] [16]

Finally, participatory justice serves as a crucial check on state power, that legitimizes the rule of law itself. As long as citizens believe in their ability to contribute to the law making and evaluation process, public consensus supports the rule of law. [2] [8] Without consensus, the government must rely on the letter of the law and threat of prosecution to maintain order; the government might resort to censorship and surveillance. [8] The law becomes "instead of a vehicle of justice, the instrument of a bureaucratic, institutionalized, dehumanized government." [8] Therefore, by reducing legal cynicism in communities, participatory justice effectively decreases the likelihood that the state will respond to this cynicism through use of overly punitive justice. [8]

Once used primarily in Scandinavia, Asia, and Africa, participatory justice has been "exported" to the United States and Canada. [3] [6] [7] [17] It is used in a variety of cases, including between "Landlords and Tenants, Neighbours, Parents and Children, Families and Schools, Consumers and Merchants ... [and] victims of crime and offenders." [12] For war-torn countries, participatory justice can promote coexistence and reconciliation, through an emphasis on universal participation. [2] [14]

An online and self-financed form of participatory justice, called the crowdjury system, has been promoted as an improved way of managing trials in the future. [5] Witnesses to a crime can upload evidence online into a secure vault. [5] Data can then be organized into useful knowledge by groups of 9 to 12 self-selected volunteers with expertise. [5] If a defendant pleads guilty, they can propose a form of restoration, as a way to avoid harsher punishment; if they do not plead, an online trial will be held with a massive randomly-selected jury. [5] Participants in the evidence review process will receive monetary compensation through Bitcoin or alt coin. According to crowdjury's proponents, this will help the government cut costs and create a more transparent judicial process. [5]

Criticisms

Critics of the participatory justice model cite its purpose to often humiliate a particular party. [10] Inkiko-Gacaca, a system of community courts established in 2002 to respond to the large number of suspected perpetrators imprisoned after the 1994 Rwandan genocide, is a famous example. [18] [19] Meant to achieve lasting peace through the promotion of restorative justice, Gacaca, according to several authors, has only become more retributive and coercive. [18] [19] [20] Through the process, Tutsi genocide survivors allegedly impose guilt on the Hutu, asking them to confess their deeds, express apologies to all victims and kin, and repay them tangibly, through public shaming. [19] [20] The participatory justice model has also been critiqued for its lack of checks and balances and lack of participation of professional experts. [21] Because the negotiators are usually not trained in the collection of evidence and are not privy to the criminal background of the alleged offender, the resolution may be made without full facts and knowledge. Furthermore, the offender's motivation is difficult to assess if the alternative is more formal punishment.

Legislative system

Overview

Participatory justice can also refer to the rights of individuals and groups to actively participate in policy-making and engage in debates about social justice. [22] In a participatory justice model, rule makers rely on the participation of affected interests rather than on administrators, politicians, and the general population. This often leads to the redistribution of resources and recognition of those whose voices have historically been excluded, due in part to a lack of financial and educational resources to contribute. [22]

The Negotiated Rulemaking Act made it a priority to ensure that people most affected by a particular issue, particularly poor people, would be able to take part in the negotiation process; the government provides agency funding to defray costs of participation in rulemaking. [23] Giving marginalized groups the chance to participate in the decision making process can help ensure they participate in the community more generally as well. For example, during the United Nations Convention on the Rights of Persons with Disabilities (CRPD), disabled peoples organizations (DPOs) were engaged in and consulted during the drafting of a comprehensive program that would enable the disabled to participate in the civil, political, economic, social, and cultural life of the community. [24] Also, within the CRPD, states were encouraged to involve DPOs when preparing reports for the body meant to monitor the implementation of the program. [24]

Arguments supporting various participatory justice models in the U.S. have also cited the equal protection clause 14th amendment, protection of individual legal rights, upholding of autonomy, integrationism, and democratic principles in their support. [23] Participatory justice models are seen as a way to fight against the paternalistic approach of the government in which legislators choose for citizens, without their input. [24] [23] When affected individuals can participate in the policymaking process, they become viewed as subjects rather than objects. [24]

Consensus rule is more administratively efficient in the long run because it avoids lengthy post-enactment litigation. The legislature or administrative body using the participatory justice model also gains legitimacy, since it implies accountability. Participatory justice models have long been used by environmental justice movements. Oftentimes, participation was originally denied not because of institutional or political failure, but because those in question aren’t recognized as in the domain of justice. [25] Young argues that participatory justice rather than distributive justice was the primary demand of communities like Afton, North Carolina. People objected that they were being subjected to risks and exposure without their consent and without mechanisms to articulate their opposition. The unfortunate reality is that those people who live in countries that will be destroyed first due to rising sea levels will not be included in decisions about when decisions are made.

Criticisms

One of the common criticisms of participatory justice models is that they might reduce efficiency, like in the environmental justice model discussed. [26] Incorporating the voices of all affected interests is a difficult and long process, especially when the issue being decided upon is significantly controversial. [23] [26] Another disadvantage is that, even when you have a negotiating body and it does include affected interests, it might be difficult for all interests to be equally represented. [23] This problem, however, can be fixed by providing those negotiating with negotiation skills, as well as development of relevant information and payment of expenses involved in participation, like in the PJ model employed SSA's representative payment program. Another disadvantage of using a participatory justice model is the inexperience of those participating. The participants may not have as much respect for the wide number of legal and ethical considerations that need to be made when writing policy proposals. [4] [5] For this reason, some critics argue that policy experts should be able to mediate the conversations on various policies, especially when modern laws are much more complex than those in places like ancient Athens, where laws were inscribed on panels all over the city and set up in the agora. [4] [8]

See also

Related Research Articles

<span class="mw-page-title-main">Criminal justice</span> Justice to those who have committed crimes

Criminal justice is the delivery of justice to those who have been accused of committing crimes. The criminal justice system is a series of government agencies and institutions. Goals include the rehabilitation of offenders, preventing other crimes, and moral support for victims. The primary institutions of the criminal justice system are the police, prosecution and defense lawyers, the courts and the prisons system.

<span class="mw-page-title-main">Restorative justice</span> Restitution with input from victims and offenders

Restorative justice is an approach to justice that aims to repair the harm done to victims. In doing so, practitioners work to ensure that offenders take responsibility for their actions, to understand the harm they have caused, to give them an opportunity to redeem themselves, and to discourage them from causing further harm. For victims, the goal is to give them an active role in the process, and to reduce feelings of anxiety and powerlessness. Restorative justice programs can also complement traditional methods, such as retributive justice, and it has been argued that some cases of restorative justice constitute punishment from the perspectives of some positions on what punishment is.

Participatory democracy, participant democracy, participative democracy, or semi-direct democracy is a form of government in which citizens participate individually and directly in political decisions and policies that affect their lives, rather than through elected representatives. Elements of direct and representative democracy are combined in this model.

The judiciary of Germany is the system of courts that interprets and applies the law in Germany.

<span class="mw-page-title-main">Criminal record</span> Record of a persons criminal history

A criminal record is a record of a person's criminal convictions history. The information included in a criminal record, and the existence of a criminal record, varies between countries and even between jurisdictions within a country. In most cases it lists all non-expunged criminal offences and may also include traffic offences such as speeding and drunk driving. In most countries, a criminal record is limited to unexpunged and unexpired actual convictions, while in some it can also include arrests, charges dismissed, charges pending and charges of which the individual has been acquitted. The term rap sheet refers to Record of Arrest and Prosecution, similar to a criminal record.

Legal aid is the provision of assistance to people who are unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial. This article describes the development of legal aid and its principles, primarily as known in Europe, the Commonwealth of Nations and in the United States.

<span class="mw-page-title-main">Public participation (decision making)</span> Extent to which societies encourage the people to share in organizational decision-making

Citizen participation or public participation in social science refers to different mechanisms for the public to express opinions—and ideally exert influence—regarding political, economic, management or other social decisions. Participatory decision-making can take place along any realm of human social activity, including economic, political, management, cultural or familial.

<span class="mw-page-title-main">E-democracy</span> Use of information and communication technology in political and governance processes

E-democracy, also known as digital democracy or Internet democracy, uses information and communication technology (ICT) in political and governance processes. The term is credited to digital activist Steven Clit. By using 21st-century ICT, e-democracy seeks to enhance democracy, including aspects like civic technology and E-government. Proponents argue that by promoting transparency in decision-making processes, e-democracy can empower all citizens to observe and understand the proceedings. Also, if they possess overlooked data, perspectives, or opinions, they can contribute meaningfully. This contribution extends beyond mere informal disconnected debate; it facilitates citizen engagement in the proposal, development, and actual creation of a country's laws. In this way, e-democracy has the potential to incorporate crowdsourced analysis more directly into the policy-making process.

Governance is the overall complex system or framework of processes, functions, structures, rules, laws and norms born out of the relationships, interactions, power dynamics and communication within an organized group of individuals. It sets the boundaries of acceptable conduct and practices of different actors of the group and controls their decision-making processes through the creation and enforcement of rules and guidelines. Furthermore, it also manages, allocates and mobilizes relevant resources and capacities of different members and sets the overall direction of the group in order to effectively address its specific collective needs, problems and challenges.

The United Nations defines community development as "a process where community members come together to take collective action and generate solutions to common problems." It is a broad concept, applied to the practices of civic leaders, activists, involved citizens, and professionals to improve various aspects of communities, typically aiming to build stronger and more resilient local communities.

The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, usually known as the Aarhus Convention, was signed on 25 June 1998 in the Danish city of Aarhus. It entered into force on 30 October 2001. As of March 2014, it had 47 parties—46 states and the European Union. All of the ratifying states are in Europe and Central Asia. The EU has begun applying Aarhus-type principles in its legislation, notably the Water Framework Directive. Liechtenstein and Monaco have signed the convention but have not ratified it.

Electronic participation (e-participation) refers to the use of ICT in facilitating citizen participation in government-related processes, encompassing areas such as administration, service delivery, decision-making, and policy-making. As such, e-participation shares close ties with e-government and e-governance participation. The term's emergence aligns with the digitization of citizen interests and interactions with political service providers, primarily due to the proliferation of e-government.

Public participation, also known as citizen participation or patient and public involvement, is the inclusion of the public in the activities of any organization or project. Public participation is similar to but more inclusive than stakeholder engagement.

The John Howard Society of Canada is a Canadian non-profit organization that seeks to develop understanding and effective responses to the problem of crime and prison reform. It is named after John Howard, a philanthropist and early English prison reformer. The society works with adults, children, and youths to help rebuild their lives.

Participatory GIS (PGIS) or public participation geographic information system (PPGIS) is a participatory approach to spatial planning and spatial information and communications management.

<span class="mw-page-title-main">Participatory planning</span> Decentralized, whole community-based urban design process

Participatory planning is an urban planning paradigm that seeks to involve the community of an area in the urban planning of that area. It's a way for communities to work together to identify and address problems and to create a plan to achieve a desired socio-economic goal. Participatory planning emerged in response to the centralized and rationalistic approaches that defined early urban planning work.

Restorative practices is a social science field concerned with improving and repairing relationships and social connections among people. Whereas a zero tolerance social mediation system prioritizes punishment, RP privileges the repair of harm and dialogue among actors. In fact, the purpose of RP is to build healthy communities, increase social capital, decrease crime and antisocial behavior, mend harm and restore relationships. It ties together research in a variety of social science fields, including education, psychology, social work, criminology, sociology, organizational development and leadership. RP has been growing in popularity since the early 2000s and varying approaches exist.

<span class="mw-page-title-main">Collaborative e-democracy</span> Political concept of an online, participatory policymaking process

Collaborative e-democracy refers to a hybrid democratic model combining elements of direct democracy, representative democracy, and e-democracy. This concept, first introduced at international academic conferences in 2009, offers a pathway for citizens to directly or indirectly engage in policymaking. Steven Brams and Peter Fishburn describe it as an "innovative way to engage citizens in the democratic process," that potentially makes government "more transparent, accountable, and responsive to the needs of the people."

<span class="mw-page-title-main">GIS and environmental governance</span> Tool for environmental management

Geographic information system (GIS) is a commonly used tool for environmental management, modelling and planning. As simply defined by Michael Goodchild, GIS is as "a computer system for handling geographic information in a digital form". In recent years it has played an integral role in participatory, collaborative and open data philosophies. Social and technological evolutions have elevated digital and environmental agendas to the forefront of public policy, the global media and the private sector.

Community food security (CFS) is a relatively new concept that captures emerging ideas about the central place of food in communities. At times it refers to the measure of food access and availability at the community level, and at other times to a goal or framework for place-based food systems. It builds upon the more commonly understood concept of food security, which refers to food access and availability at an individual or household level (in health and social policy, for instance) and at a national or global level (e.g., in international development and aid work). Hamm and Bellows (2003) define CFS as “a situation in which all community residents obtain a safe, culturally acceptable, nutritionally adequate diet through a sustainable food system that maximizes community self-reliance and social justice” (p. 37). CFS involves social, economic, and institutional factors, and their interrelationships within a community that impact availability and access to resources to produce food locally. It takes into account environmental sustainability and social fairness through measures of the availability and affordability of food in that community relative to the financial resources available to purchase or produce it.

References

  1. ↑ Hengsbach, Friedhelm (S.J.), "Participatory Justice", essay, n.d., found at Portland Independent Media website. Accessed July 15, 2008.
  2. 1 2 3 4 5 6 7 8 9 10 11 12 13 Stephens, Gene, "Participatory justice: The politics of the future," Justice Quarterly , March 1986, vol. 3, no. 1, pp. 67-82(16), abstract found at Ingenta Connect website. Accessed July 15, 2008.
  3. 1 2 Law Commission of Canada, "Towards Participatory Justice: A Focus on People and Relationships", abstract found at Dalhousie University Libraries website[permanent dead link]. Accessed July 15, 2008.
  4. 1 2 3 4 Brownlee, Peter (May 1977). "The Administration of Justice in Ancient Athens and in Plato's Laws- Some Comparisons". Politics. 12:1: 116–120. doi:10.1080/00323267708401591.
  5. 1 2 3 4 5 6 7 8 Ast, Federico; Sewrjugin, Alejandro (November 2015). "The Crowdjury, a Crowdsourced Judicial System for the Collaboration Era". The Crowdjury: A Judicial System for the Internet Era. A Medium Corporation. Retrieved 22 April 2018.
  6. 1 2 3 4 5 Giuduce, Michael (2006). "Asymmetrical Attitudes and Participatory Justice". Cardozo Public Law, Policy and Ethics Journal.
  7. 1 2 3 4 5 Rosenbaum, Thane (2011). The Myth of Moral Justice: Why Our Legal System Fails to do What's Right. Harper Collins.
  8. 1 2 3 4 5 6 7 Thomas, Claire Sherman (1984). "The Common Law Jury: An Essential Component of Participatory Social Justice". Alsa F.
  9. 1 2 Stephens, Gene (1996). "The Future of Policing: From a War Model to a Peace Model". The Past, Present, and Future of Criminal Justice: 77–93.
  10. 1 2 "Participatory justice," review, February 19, 2008, found at Connect Safely website [ permanent dead link ], citing Ganzer, Tony, "YouTube's Crime-Fighting Potential Put to Test," National Public Radio (NPR), found at NPR story from NPR official website. Accessed July 15, 2008.
  11. ↑ "Participatory justice | Barreau de Montréal". www.barreaudemontreal.qc.ca. Retrieved 2018-04-16.
  12. 1 2 3 4 5 New York State Unified Court System, "Alternative Dispute Resolution: Community Dispute Resolution Centers: Frequently Asked Questions", found at New York State Unified Court System government website. Accessed July 15, 2008.
  13. ↑ Conference brochure, "Participatory Justice in a Global Economy: The New Rule of Law?", October 2003, Canadian Institute for the Administration of Justice, found at Canadian Institute for the Administration of Justice (CIAJ) website Archived 2004-11-21 at the Wayback Machine.. Accessed July 15, 2008.
  14. 1 2 “Reparative Justice after the Lubanga Appeal Judgment: New Prospects for Expressivism and Participatory Justice or ‘Juridified Victimhood’ by Other Means?” Journal of International Criminal Justice, 13(4), pgs. 801-813
  15. ↑ Christie, Nils, "Limits to Pain", "Chapter 11. Participatory justice," found at Prison Policy website. Accessed July 15, 2008.
  16. ↑ Calkins, Peter, and Alice Pell, "North-South partnerships," presentation, SEDPU (Sufficiency Economy, Participatory Development, and Universities), 2003 conference, found at SEDPU website. Accessed July 15, 2008.
  17. ↑ Conference brochure, "Participatory Justice in a Global Economy: The New Rule of Law?", October 2003, Canadian Institute for the Administration of Justice, found at Canadian Institute for the Administration of Justice (CIAJ) website Archived 2004-11-21 at the Wayback Machine . Accessed July 15, 2008.
  18. 1 2 Waldorf, LT (2006). "Rwanda's Failing Experiment in Restorative Justice". Handbook of Restorative Justice: A Global Perspective: 422–434.
  19. 1 2 3 “The legacies of collective violence: the Rwandan genocide and the limits of the law,” Boston Review, 27(2)
  20. 1 2 “Helena Cobban Replies”, Boston Review, 27(3-4), online
  21. ↑ C Williams, Victim-Offender Mediation in New Law Journal, London, 1987
  22. 1 2 Tikly, Leon; Barrett, Angeline M. (2011). "Social Justice, Capabilities and the Quality of Education in Low Income Countries". International Journal of Educational Development. 31 (1): 3–14. doi:10.1016/j.ijedudev.2010.06.001.
  23. 1 2 3 4 5 "Doing Unto Others: A Proposal for Participatory Justice in Social Security's Representative Payment Program. U. Pitt. L. Rev, 1991, 53, 883.
  24. 1 2 3 4 Stein, M.A., & Lord, J.E. "Jacobus TenBroek, Participatory Justice, and the UN Convention on the Rights of Persons with Disabilities." Tex. J. on CL & CR, 2007, 13, 167.
  25. ↑ Jaieson, D."The heart of environmentalism." Environmental Justice and Environmentalism: The Social Justice Challenge to the Environmental Movement, MIT Press, Cambridge, 2007.
  26. 1 2 Kaswan, A. "Justice in a Warming World." Environmental Forum, 26(4), 2009, 48.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.