Major Katherine K. Stich, Customary Justice Systems and Rule of Law Reform, 221 MIL. L. REV. 215 (2014).
Her introduction begins:
A young U.S. rule of law (ROL) judge advocate (JA) and his Department of State counterpart are partnered with a local judiciary in Afghanistan, seeking to improve its justice system. They are discussing a murder trial with the criminal court’s chief judge in which the defendant was acquitted. The judge tells them that he informed the family of the deceased to take the matter to the local tribe for further redress, as they are unhappy with the outcome. The attorneys are torn: they respect the culture and its capacity for alternative dispute resolution, but feel this may undermine the government’s legitimacy and the very rule of law they are attempting to enable. The judge further explains that the court is overwhelmed by the current caseload and that the judge would like the attorneys to encourage tribal dispute resolution in some cases to alleviate prison overcrowding and trial backlog at least until the judicial system is more robust.. . .For the purposes of this article, CJS refers to those dispute resolution mechanisms outside the formal justice system, including traditional, tribal, religious, indigenous, and informal systems. However, they sometimes possess an official connection to a state by recognition or regulation.
Thanks Phil. I can't wait to read the article. However my first thoughts are this: the whole purpose of the rule of law is to obviate the need for private causes of action also known as revenge-- what I railed against in the sex assault debacle recently--private, subjective justice.
ReplyDeleteThe whole purpose of the rule of law concept is that society would determine when punishments were, necessary, objectively; when punishments were appropriate; and how they would be performed; by whom they would be performed; and upon whom they would be executed.
The rule of law concept is supposed to resolve the anti-social, private bias and generally objective injustice and mercilessness issues that are part and parcel of private redress, blood feuds and other forms of personally satisfying conduct which largely undermine the concept of "society."
I look forward to reading her article and seeing how she addresses those issues.
I am also curious to see what she recommends to resolve the judge's comments--which to me should be as follows: the family that is unhappy with an offical judicial outcome is warned that justice has been served and if they take any private action--any so-called "alternative resolutions" (nice euphemism for "private justice")--they will be investigated, charged and tried as appropriate.
No society can or will long endure endless private disputes circulating throughout it where everyone can behave in any manner that they perceive as subjectively "just."
Indeed, it seems to me that there is a mass movement AWAY from the concept of "rule of law" because too many people don't understand that subjective justice is NOT justice. The legislative or social moves to make trial results more personally satisfying to one of the parties in a dispute over the other party is an abandonment of the rule of law as a blind justice concept or practice.
And that trend is as bad as is the practice of recognizing "individual religious exceptions to generally applicable but religiously neutral laws" unleashed by the Religious Freedom Restoration Act (RFRA) and the SCOTUS' Hobby Lobby decision. But that is another discussion entirely! :)