justice systems

this document tries to (non-authoratively) describe both working principles and implementation aspects of justice systems with the purpose of creating a basic consciousness that can be helpful when acting within such systems or when designing and implementing them.

it tries to hint at purposes and function of its elements.

~ a non-definitive draft ~

what is justice or a justice system?
what could be qualities of a meaningful justice system
existing models of justice systems
preventing future harm & accountability

what is justice or a justice system?

A justice system is a social contract of a society concerning the relations of the parties therein. It is the role of this society as a whole to meaningfully address violations of the contract - or consciously not address them. As is the nature with contracts, it must be open for discussion and adaptation as circumstances require and as parties agree.

It entails a set of methods and processes to re-establish a meaningful balance according to a value system that was previously disturbed by acts creating imbalance or harm, involving parties negatively impacted by actions of other parties causing imbalance or harm.

Typically for the harmed parties the harm done should be meaningfully "undone" and/or compensated, if so even possible.

Typically the parties causing harm are to be addressed with the actions leading to harm or imbalance and are ment to take responsibility for harmful actions according to the degree of responsibility.

Parties causing harm may not be limited to the party ultimately performing an action, but may or should as well include parties otherwise directly or indirectly involved in enabling said action or - in other words - failing to protect the harmed parties.

There can be and oftentimes are third parties involved having the function of facilitating the methods and processes.

Strafe neu Denken - Jenseits von Schuld und Sühne

what could be qualities of a meaningful justice system?

A safe environment is for all parties to meaningfully engage in a process trying to resolve the imbalances. This entails supporting all parties, but due to the imbalance especially the parties harmed are to be supported throughout this process. This entails:
- Power differences and dynamics between parties should be taken into account and meaningfully levelled, with respect to both background and modes of communication.
- Attention should be paid to forms of expressed or implicit power games and subservience or other forms of intra- or interpersonal narratives and should consequently be addressed.
- There should be space for the perspectives of all the parties involved and these should be acknowledged, even if not shared by the other parties.
  - Perspectives are not a legitimization of actions but may lead to discover systemic conditions.
  - Attention should be paid to learnt strategies of denial. Denial is an obstruction of constructive, sustainable and fair resolution.
- All parties should be enabled to understand and follow the proceedings. Language should be as simple and clear and inclusive as possible and/or may include additional support.
- All parties should be in emotional and mental and physical etc condition to participate. Support may or may not be necessary,
- Good will and cooperation and open communication between all parties should be fostered.
  - Fear of retaliation, of punishment, of the experience of forms violence or power create a barrier for this.
  - Processes, language and methods leading to an antagonistic party system should not be used.
- All parties and in particular the most affected ones are to be supported in taking agency and accountability.
- Language should not stigmatize, pathologize, demonize or otherwise imply that a party in itself is the problem - it is past actions by a party that are a problem.
Initializing a process should be simple and not an additional burden for harmed parties. Third parties should have open eyes for harm done and may - respecting the wishes of the harmed parties - support this initialization.
There must be meaningful transparency of information relevant to the parties involved. Who will receive or requires which information and what may be the effect of making this information accessible?
There must be a transparent and clearly communicated procedural structure.
- Next steps are to be defined and meaningful time horizons given for orientation.
Whilst speaking about harm may be difficult just as much as hearing to be responsible for actions leading to harm, the focus should be on what to do now, what to change, how to go on from the current situation.
The systemic conditions of all parties should be considered - all humans adapt to their environment and develop survival strategies, wether these are interpersonally constructive or destructive. Also, all persons have their own resources and capabilities which is to be respected.
The conflict belongs to the persons directly and indirectly affected to the degree of being impacted.
Time and space and energy is needed for all parties involved, which indeed is work and may be simple or may be longer term processes.
- Constraints and commitments of involved parties should be clarified.
- Conditions as much as people may change over time, processes and constraints should be flexible.
- Resources should be used meaningfully.
All parties - in particular and most importantly parties leading/supporting processes - should or even must be aware of internal personal circumstances that may influence the behaviour towards all and especially the most concerned parties. Are there sympathies, forms of involvement or dependencies toward the harming or harmed parties? Is personal identification or transference and projections of personal experiences onto involved parties given?
- Methods of self-control, mutual control, supervision or a complaint system should be implemented.
a justice system should be suitable to the social context and circumstances wherein it is being applied, although traits may be shared, each is singular.
a justice system is a social contract and as such may or may not require agreement by all persons involved - otherwise it may be perceived as illegitimate enforcement of foreign wills.
- agreeing to a justice system is not a common or conscious experience, it is relied on when it is needed. fostering awareness of and agency within justice systems may be meaningful.
a justice system - as much as any social system - should not be static but open for questioning, discussion and change. the process of change itself may or may not be structured and should be clear and accessible.
Creating protocols may be a meaningful way to document status quo, processes and agreements and may be a place to refer to in the future.
- Written protocols tend to be a summary and may incompletely document the actual proceedings - due to misunderstanding, human error, or other reasons. Using audio/video recording systems allows for more objective documentation and may happen in addition to written protocols.
- Having parties read and sign protocols may give these certain relevance. It is the question what purpose they serve. Attention should be paid: language is imprecise, spoken words are only a fragment of actual communication, a written summary is a symbolic representation of what was said, understood, written down and reading it is another communicative process that includes the memory of what was said, understood, compared with what is read, differences of possible interpretation may possibly be ignored, not noticed, filled with the original personal intent rather than otherwise perceived intent - even a written, summary-based, proof-read, signed protocol is not a definitive resource. Giving parties some time to process, before proof-reading and correcting a protocol, may create a more neutral process of proof-reading - but may also be prone to more iterations of correction. Using audio/video would provide a means of more complete, objective documentation whilst also allowing for a written, summary-based protocol.

existing models of justice systems

models are generic ideas of how to implement a system based on different value systems and operational conditions. models can serve as inspiration for adaptations taking into account the specific conditions.

some non-authorative descriptions of models:

punitive systems entail punishments for wrong-doings; fines, limitations of freedoms, etc. studies have shown them to be ineffective with respect to many forms of harm actually addressed, personally and socially destructive, requiring an ecosystem completely separate from social systems, though aspects of restorative/transformative systems have been incorporated to some degree or other. very prominent in "westernistic", individualizing societies.
- authorative/state systems typically are of a punitive nature with integrated aspects of restorative/transformative systems but are too formalized and have many disadvantages although they try to implement many of above listed qualities: disowning involved parties of any agency, and turning them into passive objects that are being measured up, systemic conditions and social environments are not considered or addressed.
restorative and transformative justice both consider systemic conditions and try to give agency to involved parties and have a concept of community accountability - which roughly means that the social contexts and communities within which parties move play a role within the processes, either by supporting more concerned parties and/or having a supervising role and/or by being co-responsible for harm and healing. mindsets as well as practices are overlapping to some extent. having a more relational mindset, prominent and/or conceptually originating in indigenous and/or marginalized PoC/female* cultures.
- the term restorative sometimes is mistaken and critiqued as aiming to return to a prior "pre-harm state", but looking at actual practices that clearly is a misunderstanding. The mindset taken by practitioners is more something like "how do we repair harm as good as possible and how do we together continue from now on learning from our mistakes?".
- transformative justice seems very survivor-focused particularly addressing the needs and will of the harmed parties, particularly parties harmed by forms of (sexualized) violence. this focus is certainly also an intended counter to social forms of rape culture and general difficulty of speaking about forms of (interpersonal) violence. Encountered more often within activist contexts, discussion of forms of discrimination, power structures and politically-charged terminology are more prominently encountered in literature and discussions.

States have described the justice systems and related social contracts they aim to realize through laws. The actual implementation of these laws through defined bodies such as (state) attorneys, courts and judges will rarely live up to the requirements of formal law - not only due to the limited human condition but also systemic conditions. Model and reality are always two very different things.

In consequence, such abstract ideals like the assumption of rule of law is but a naive fantasy and pro-forma rhetoric sleight-of-hand.

Model and implementation of a justice system are two vastly different although related things. Both can be considered and criticised and changed according to wills and needs within the boundaries of the social contract and processes surrounding it. Naturally, it is the implementation rather than the model that is most relevant - dysfunction therein must not only be adressed, it must be adressable in the first place.

State systems despite their specialization tend to be too rigid to allow for meaningful dialogue, or their means of dialogue are often inaccessible due to remaining unknown, or being hidden through incomprehensible, overly formalized language, or requiring inertial social processes or being incorporated into systemically dysfunctional conditions. Though - sometimes - such systems do have procedures for dialogue, and some people have a better insight into their immediate functioning and some of these people are called lawyers and some of those expect money for their not always helpful support in dealing with those systems - others again provide basic support aiming to make these procedures more accessible or more even.

there is a general unawareness of justice systems - there (seemingly) is little reason to be involved in such when one does not seem to be directly affected as a party. there certainly are actual consequences for this - in part because justice systems also deal with distributions of power.

attempts at self-organised justice systems may suffer due to different reasons, such as there not having been an a priori social contract involving the concerned parties, or because process steps are badly executed, likely due to inexperience or a lack of awareness or skill of the subtle human processes involved. although this may be individually or socially very harmful, disastrous failure may (hopefully) lead to learning experiences.

state systems are critisized to be inadequate or incapable of sustainably and meaningfully addressing many forms of interpersonal violence. private initiatives and self-organized justice systems try to address problem areas and provide alternatives.

Some resources discussing these systems or aspects thereof:

preventing future harm & accountability

to the degree that living beings have a free will and can autonomously decide to perform actions, they are responsible for their actions wether they were aware of consequences or these were intended.

This would be a more individualistic perspective as it does not explicitly name responsibility that individuals have in social systems, relating to each other, living with each other in a shared world, influencing each other, being interdependent on multiple levels.

what responsibility actually means can be vague. some see it as the capability to meaningfully respond to situations as they arise or having predictions about the course of things before they do arise.

sometimes the term accountability is used in a related way, but more specifically to describe future responsibility with respect to past actions or non-actions.

shaping the conditions wherein situations arise is a strategy to pro-actively minimize risk of them happening.

conditions are intra- and interpersonal as much as they are systemic, all at the same time. systemic conditions shape intra- and interpersonal dynamics as much as vice versa.

taking a process-oriented perspective can help to identify them, both conditions and dynamics that lead to harm and conditions and dynamics that do not lead to harm. seemingly obvious, weakening the former and strengthening the latter are methods to transform conditions to better prevent future harm.

intra- and interpersonal conditions entail direct experiential modes of functioning in the here and now. Some questions may hint at aspects thereof: how to we experience ourselves? how do we feel and what makes us feel how?, how do we interact and treat others and why?, what behaviour is reinforced? what are our narratives regarding ourselves and our environment?

some resources regarding intra- and interpersonal and systemic topics: