community justice as contemporary reality bases for an analysis of public policies

8/12/2019 Community Justice as Contemporary Reality Bases for an Analysis of Public Policies

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Community Justice as Contemporary Reality :Bases for an Analysis of Public Policies

Edgar Ardila Amaya*

This article notes that the mechanisms of community justice are the result of var-

ied and even antagonistic social dynamics. While the appraisal thats made and

the expectations these generate tend to be positive, there is concern that they may

turn into a factor for reproducing and accentuating social inequalities or that they

may serve to co-opt any in-depth transformation of society. The author, who has

worked in this field for several years and favors the promotion of mechanisms of

community justice, proposes different possibilities for the analysis, an understand-

ing of the relation between the context in which the current emergence of varied

instruments of community justice and the role they may play in the transformation

of society. The bottom-line is to clarify why and to what extent processes of com-

munity justice may participate in a dynamic of progressive transformation in our

societies. To this end, the author explores the identifying elements of the politico-

legal scenario in which the contemporary dynamics of community justice are in-

scribed and analyzes the factors that cause their expansion while suggesting the

ways in which the tendencies presented by the administration of justice in com-

munity settings interact with the political wagers that converge in the current pro-

cesses of this type of justice.

The assessment of and expectations for the mechanisms of community justice tend to be posi-

tive. The authors who refer to the concept in general, or to different forms in particular, start fromdifferent perspectives yet tend to paint a picture of a suitable path for improving the administration

of justice. In Colombia, community justice always gets off easy when it is presented as a more or lessefficient alternative to the dynamics of generalized violence or to the gaps in the judicial system.

There are numerous and varied advantages attributed to it. Some staunchly maintain that it ischeaper, quicker, more efficient and more accessible than the justice offered by the judicial system.

Others use solid arguments to claim that it helps in the construction of peace or, at least, in thwart-ing people from resorting to direct violence as a way of resolving disputes.

Nobody appears to be in a position to firmly and definitively adopt a negative position vis--

vis these mechanisms. Nonetheless, there have been several voices of caution regarding certain

worrisome elements, especially with regard to the mass promotion of the mechanisms of commu-nity justice in recent years. For example, the fact that many cases of community justice lack the

balancing mechanisms present in the judicial system means that community justice may contribute

to the reproduction and accentuation of social inequities, which should be cause for concern. It isalso disturbing that these mechanisms can also limit the transformations at the social base, since

they can prevent the different underlying interests in the conflict from joining, maturing and gath-

* Professor of Law, National University of Colombia. Member of the Red de Justicia Comunitaria

(Network for Community Justice).

ILSA - Instituto Latinoamericano de Servicios Legales Alternativos. http:/www./ilsa.org.co/


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ering forces. One must caution that ultimately [these mechanisms] could end up as a veiled modalityfor the expansion of the central power structures through forms that are autonomous only in ap-

pearance.I am a supporter of the push toward mechanisms of community justice, as evidenced by sev-

eral years of work in this field. But that does not mean that I fail to consider these disturbingelements, nor does it lead me to determine that the mechanisms of community justice are positive

for society as a whole. I hold that the mechanisms of community justice are the result of diverseand in many cases antagonisticsocial dynamics. Community justice can transform or conserve

society and, as a factor in social change, can participate both in broader processes of regressivetransformation and in the progressive transformation of social relations.

With the aim of analyzing the different possibilities, this text seeks to propose a path towarda greater understanding of the relationship that theoretically exists between the current context in

which the various instruments of community justice are implemented, and the role that these mightplay in the transformation of society. The fundamental question is to clarify why and to what extent

processes of community justice might contribute to a dynamic of progressive transformation in oursocieties. With this immediate aim, this text attempts to explore the element that might identify the

political-legal setting in which the contemporary dynamics of community justice are described. In

so doing, we are both analyzing the factors which may cause the expansion of mechanisms of com-munity justice, and reflecting on the ways in which the trends in the administration of justice inter-act in community arenasboth based on a reflection on the political strategies which converge in

the current processes of community justice.

A NEW ERA IN COMMUNITY JUSTICE

The most visible part of this stage of the administration of justice can be perceived in the following

three points: (1) In the first place, the change of conflict intervention strategies on the part of thestate system; (2) secondly, the diversification and expansion of mechanisms outside of the state

which participate in the processes of justice administration and regulation; (3) finally, the formal

retraction of the state from certain realms of the administration of justice.With regard to the first aspect, the changes in state-based conflict intervention are manifest in

the multiplication both of the state bodies which are called upon for this purpose, as well as in the

methods for addressing controversies brought before such bodies. The former occurs because thejudicial system is continually ceding ground to other state bodies, mainly to the executive branch.1

As methodologies for dealing with some conflicts multiply, state intervention incorporates proce-dures that are based on the consensus of the parties involved and focus on the construction of the

social fabric;2 meanwhile other conflicts remain subject to judicial procedures and submitted to thedecision of a judge according to the law. With regard to this second aspect, there is also diversifica-

tion and expansion of the actors in conflict regulation and management who operate both withinand apart from the state system.

1 With regard to the executive branch, there is a wide range of actors who are involved in the field

of conflict, from police authorities to governmental actors. The administration uses various agents

to intervene in conflicts ranging from the purely private, individual type, to those which are col-

lective by nature and of the public interest.2 Moving beyond the generalized model of conflict intervention adopted by the states adminis-

trative bodies, the adaptation of judicial procedures occurs primarily in two ways. On the one

hand, informal procedures are incorporated into the task of the formal administration of justice,

principally as a pre-tr ial process that is, in many cases, obl igatory. This strategy has been most

developed in the fields of family and labor law, although it has also been attempted in criminal

law. On the other hand, in cer tain types of cases, new mechanisms are created with an ent irely

new procedural structure.



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Thus, mechanisms with organic ties to business sectors increasingly participate in conflictmanagementwith an unprecedented presence in all areas, from the local to the transnational, and

in aspects ranging from general regulation to the negotiation of particular conflicts. In the samevein, new forms of managing criminal justice are being implemented which attempt to prioritize

reconciliation over punishment, but still under the direction of the state judicial system. There arealso, of course, the instruments of conflict management which stem from community and social

movements, which gain extra momentum at this stage.With regard to the third aspect, the state is retreating from several realms of justice adminis-

tration, formally ceding ground that it cannot practically control. Due to this phenomenon (al-though not in any mechanistic or necessary way), non-state mechanisms for justice administration

and regulation find fertile ground to take root and grow. The state sets up a complex relationshipwith these mechanisms, which cannot be fully considered a substitute of the state system by another

regulatory system nor the simple transformation of state structures.In the following sections I offer some elements of analysis which may help us to approach the

complexity of these changes. In the first place, to attempt to understand the interplay between thedifferent regulatory principles in the new processes of justice administration and, in the second

place, to understand how the new processes operate in the regulatory realms that are currently

recognized in our societies.

PRINCIPLES OF JUSTICE ADMINISTRATION AND REGULATION

The complexity of these changes can be better understood if we first understand what precedes andsurrounds them. In order to do so, we rely on the existing theoretical tools. In his most recent

work, Boaventura de Souza Santos (2000) proposes a conceptual construction with which to under-stand modern societies in general and the administration of justice in particular. Paraphrasing the

professor from Coimbra, we could say that the paradigm of modernity is complex and full of inter-nal contradictions. That is, it does not easily submit to logic. On the contrary, is can be understood

as the interwoven and competing confluence of three principles of regulation: the principle of the

state, the principle of the market, and the principle of the community.3

The first is defined as thevertical political obligation between the state and the citizenry, the principle of the market is thehorizontal and antagonistic relationship between commercial agents, and the principle of the com-

munity is the horizontal relationship based on the solidarity between members of a common envi-ronment of unity and belonging. The most renowned authors of each of these regulatory principles

are easily identifiable. While the state-based principle of regulation recognizes first and foremostHobbes, in the principle of the market we find Locke, and in the principle of the community, Rousseau.

All of these focus on freedom as the corresponding principle to regulation. For Rousseau (1983: 27-ff), freedom is part of human nature and is only realized in the social context in which the commu-

nity fulfills its collective interests. In Locke (1995: 36-ff.; 52) and in Smith, what determines freedomis simply the possibility to choose. For Hobbes (1994: 215-ff.), freedom is determined by what the

state allows an individual to do; the citizen is free within the realm of what the state allows.It is therefore necessary to point out that even though the state is the fundamental factor of

organization and rationalization within its territory, it is not the only entity regulating social rela-tions. The well-known phrase the invisible hand of the market highlights the fact that in modern

societies the regulatory capacity of the market has always existed. Underlying Adam Smiths pro-posal is the fact that the market continually regulates social relations. And, to the extent that they

are submitted to principle of the markets, these very relations are regulated by the dominant fac-

3 Here I partially (in order to temporarily avoid delving into the pillar of emancipation) take up the

system of analysis widely developed by Boaventura de Souza Santos (Santos 2000).



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tors which the market is able to regulate in a way that is complementary, competitive or alternativeto state regulation. As we will see below, this is especially apparent in contemporary societies that

undergo a process of the state retreating from regulation in multiple sectors. This is supposedly thephenomenon of deregulation, but in reality what is occurring is a process of commercial regulation.

The state retreats, but instead of the deregulation of social relations, what generally occurs is thatmarket norms take its place. Market norms become the dominant norms. And when this involves an

oligopolistic market such as currently exists in many realms, the rights which previously existed inthe realm of state regulation start to be transformed into services, and what we once had as guaran-

tees disappear simply because we cease to be citizens and instead become customers. If we are notcitizens, we do not have rights. As customers we have other prerogatives that do not allow one to

obligate another to satisfy his or her interest, as is allowed under the principle of the state.

The community also acts as a principle of regulation and has been present throughout all of

modernity, determining broader or narrower sets of social relations surrounding conflict. A funda-mental element of community cohesion is having rules. If one loses a sense of what is correct and

does not know what is good and what is bad, one starts to lose his or her human nature. It might besaid that culture is human nature. In this sense, each community has its own nature. Taking the rules

away from a community would be equivalent to taking away its nature because it means telling the

community to be something that it is not. Community building is, to a great extent, about regula-tion. Rules are the skeleton of a culture. The skeleton is not the animal, yet without it, the animalcould not exist. And to the extent that a community has the possibility of self-regulation, it can

produce its own identity. It is also through rules that the complementary dynamic of belonging isestablished. The meaning of belonging is linked to being submitted to the rules of the group to

which one belongs. My initiation into a group consists in my submission to the rules of that group.In this sense, the self-management of conflict through cultural linkages is a form of community

building.

Very extensive social environments (with intense dynamics surrounding identity and belong-ing) and very broad relational groupings (with relatively greater weight on non-state-based iden-

tity dynamics) have always relied on the principle of community to determine conflict relations and

management. In concrete contexts, systems of social regulation have to be read as the convergenceof the principle of community with the principles of the state and the market. This is so often thecase that even in the most politically and economically integrated sectors, most conflict is resolved

according to the principle of the community, even when state norms are invoked to solve the case.In spite of this, the regulatory capacity of the principle of the community has suffered a process of

undermining throughout modernity, to the extent that a constant process of urbanization is under-way and the presence of the mass media has intensified in daily life.

The community has always been secretive about regulating what is defined as unimportant

in terms of the modern context. Its place has always been defined as subordinate or redundant inthe face of the other principles of regulation, even though it is always called on to play a legitimat-

ing role. The market has interacted in many ways with the principle of the state as a determinant

factor in social regulation. Apart from the present era, in the 19th

century the market enjoyed highlevels of predominance in most Western countries. Yet the principle of the state has been the axis ofthe paradigm. This principle is the basis for the discussion over social order and organization, while

the other two principles participate in a complementary or competitive way in the establishment ofthe rules that determine social behavior. Yet the relationship between the three principles and the

set of dynamics around regulation tend to change fundamentally in the current era.

As a consequence, we can see substantial changes in the administration of justice with regard

to the principles of regulation. To the same extent that the principle of the state is receding in theface of the advance of the other two principles, their operating logics and the factors that make up

these principles act as vectors for the conflict management that generally occurs in modern society.



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The administration of justice is differentially affected by each of the three principles. The vector ofthe principle of the state operates in the direction of sovereignty and legal certainty; the vector of

the principle of the market is directed toward the generation of appropriable individual gains, andthe vector of the principle of the community is oriented toward identity and belonging.

With this analytical framework, we can explain the concepts of legal certainty and sovereignty,

which are central to the modern conception of justice and which are intensely affected by the cur-rent stage. State law is tending to lose efficiency as a mechanism for assigning rights, and as thisbase is weakened, the legal certainty offered by the modern order begins to totter. The reduced

efficiency of the legal norm as a guide for social relations precipitates talk of a crisis of law; whilethe fact that the legal system is overwhelmed in its ability to deal with conflict precipitates discus-

sion of a crisis in the administration of justice. 4 With regard to the judiciary, the crisis is manifestedin its structural inability to attend to all conflicts: the courts are congested, the processes are in-

creasingly slower and impunity is on the rise. With regard to the legal system, the crisis is mani-fested in the inability of the law to resolve many conflicts. This is what has been termed the crisis

of the paradigm of state monist legality (Wolkmer 1994: 91). Due to this crisis, many issues havecome to be treated by the regime as extrajudicial.5 The illegitimacy of the judicial apparatus and the

state legal system are manifested in the increasing tendency toward the use of outside mechanisms

for conflict management. Under such conditions, to reduce the administration of justice to the judi-cial system and the law to the state, would be going against available evidence and would beentirely unrealistic.

The statistics on impunity and legal inefficiency seem to show that the judicial system disap-pears from the scene in most social conflicts.6 This takes on even greater significance when the state

is limited to offering purely symbolic protection on issues that might be of the highest interest forlarge sectors of society,7 essentially gutting rights that are fundamental for the majority of the

population.8 In practice, the state tends to concentrate its resources where the needs of capitalistaccumulation require them. In a stage of globalized capital accumulation, [these resources] are in-

creasingly controlled by vectors farther and farther beyond the control of national governments.This being the case, what we could characterize as a scenario of the full exercise of citizenship

is deteriorating (Habermas 2000: 104) to the extent that the state finds itself ever more limited in itsability to guarantee the rights which establish its internal laws. There appear to be a series of

overlapping causes for this, among which the following might be highlighted: (i) The tendencytoward reduced efficiency of [civic] ties or links given the advancement of an individualistic

4 There are various texts on the crisis of the legal system that are particularly pertinent to this

study: the first chapter of Bonaf (1991) and the work of Santos (1998B). In spite of the differ-

ences between them, those two works undertake an analysis of the elements that define the

structural tension within legal conflicts with respect to the law and the legal system.5 For example, as Wolkmer points out, the most common strategy for removing collective issues

from the legal sphere is to link non-judicial entitiessuch as those from the executive branch

to the management of the conflict.6 The case of Spain, in which only one-fifth of all new cases seen in 1990 were resolved, may be

indicative (Pastor 1993: 65).7 In this framework, Fara wonders about the Brazilian legal system: Within a highly complex,

unequal and contradictory society, in which a large par t of the population doubts the concept

of reliability, could [the state] possibly have the technical, functional and institutional conditions

necessary to assure its monopoly over conflict resolution? (Faria 1995: 85).8 As occurs in Colombia. Contrast the available information on the high level of impunity in homi-

cide cases with the high levels of overpopulation of prisons (exceeding 300% of their capacity),

which are increasingly occupied by those accused of drug trafficking and production, who have

much less of an impact on Colombian society.9 Perhaps provoked by the confluence of three types of factors: (i) the dissolution of social, com-

munity, and association-based structures due to processes of urbanizat ion, mig ration and trans-

formation of productive spaces; (ii) the impact of the cultural work produced by the increasingly

globalized mass media, and (iii) the development of technologies that foster work, consumption

and leisure in conditions of isolation.



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attitude among sectors that have historically enjoyed the full exercise of citizenship;9 (ii) the orien-tation of public resources towards priorities defined to be outside the sphere of democratic institu-

tions and increasingly independent of national borders; (iii) the search for competitiveness at theexpense of public spending, which translates into the contraction of social spending and of some

bureaucracy, whichamong other thingslimits the response that the judiciary can have to situa-tions of conflict.

Correspondingly, while this phenomenon of crisis in the state judiciary and in the administra-tion of justice occurs within the realm of citizenship, it also produces noticeable effects in the other

settings of social regulation. In the first place, because it excludes and marginalizes greater andgreater sectors of society. In the second place, because the full incorporation of a broad segment of

the population into the ranks of citizenship is substituted by an offer of limited citizenship in whichonly certain rights count in practiceprincipally the right to voteleaving the other rights rel-

egated to the margins and subordinated to a politics of investment, fiscal equilibrium, competitive-ness, and security. And it is to this margin that the legal defense of rights is confined. Thirdly, forms

of conflict regulation and management that are developed in settings with their own, independentlegal structures have a greater chance of being truly accessible media for guaranteeing communal

living in different segments of society. [These forms] are potentially strengthened byamong other

causesthe resurgence of identities and the flow of community dynamics which are becomingapparent in different parts of the world. Finally, the state is reconsidering its relationship to theseforms of legal pluralism. In so doing, it is opening itself to ways of recognizing other forms of

lawfulness and providing institutional, state-based validity to extra-state mechanisms and decen-tralizing the administration of justice to allow for the introduction of new actors. The new attitude

of the political system, as we shall see, is defined by a path of adaptation to the new realities whiletaking care to rely on mechanisms that allow the state to remain in control.

DYNAMICS OF REGULATION, COMMUNITY,

AND THE ADMINISTRATION OF JUSTICE

In the previous section, I stated that strong tendencies can currently be identified which promote aretraction of the state as a principle of regulation. This retraction, as I have affirmed here, is ex-pressed equally in the local, transnational and national. In the face of this retraction, there has been

an expansion of the other principles of regulation. The market has broadened as a space of regula-tion and the community has expanded as well. An important, corresponding transformation is also

occurring from an ideological perspectivethe state already recognizes that it is not the only regu-lating entity. It never has been the only entity, but it is only now that the state recognizes it. This

represents an enormous shift in that the state now considers the need to link itself to the newreality. What the state is now attempting to do is to ensure that its means of regulationthough

essentially modifiedremain as much as possible a central component in the complex dynamic ofprinciples of social regulation and order. However, for many (for example Santos and Vallespin)

this merely amounts to the state organizing its own retraction.The marketwhich is increasingly transnational at the cost of internal and national mar-

ketsis expanding and starting to occupy the dominant position. In each case the market has adifferent way of becoming the dominant factor in regulation. It is not simply that there is a broadening

of the fields in which market rules are replacing state rules; rather, there are mechanisms throughwhich commercial actors directly affect state policies and actions. To a certain extent, what the state

bodies are doing is adjusting to the new reality in a primarily subordinated fashion.

The communitywhich had been eclipsed as a principle of regulationfinds new strength inthe current era to the extent that it appeals to identity-based ties to shape and enforce behavior by

using the solidarity of those who feel that they are part of a common whole. Yet, the development



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of this strength is debated in terms of: its development as a principle of regulation, its developmentof the ties between the genuine needs of individuals and groups, the development of identity dy-

namics, and the development of the processes of self-regulation in the face of the needs imposed bythe market and the state. The community is effectively expanding, but perhaps it is doing so not

only based on the principle of community, but also perhaps interpenetrated with the state andprinciple of the markets.

Hence, it is from this complex dynamic that the trends in the administration of justice must byread. The community appears to be a social realm regulated by the state. In this scenario, the state

intensely interpenetrated by the marketputs limits on the community. Here we can see certaindynamics of decentralization and of participation that have been propelled since the 1970s, and

which at this point define the community to a certain extent. [These include the ideas that] there arecertain times for participation and certain ways in which to participate, and that one is a community

member in order to have access to certain services, but not to make transcendent political decisions.The state regulates the gains in the communitys ability to manage itself. For example, the state

limits its capacity to act in criminal cases and establishes fields in which the communitys self-regu-lation is proscribed, thereby recognizing a limited and subordinated capacity for self-regulation. In

the judicial field, forms of administrative justice have been organized such that the communitys

own structures tend to become an extension of the state regulatory structures, particularly of thestates justice system. From the perspective of the principle of the state, the justice of the peace is atool for the expansion of the state system and is presented as part of the judicial system. In effect,

what would be a mechanism for community justice becomes a mechanism for the expansion of thestate within the community using the communitys own structures. This is what Boaventura de

Souza Santos calls the expansion of the state in the shape of civil society (Santos 1991: 139-140).

The state appropriates the communitys own structures and, in so doing, changes the essence

of the system of regulation. Hence, the notion that a substantial number of the mechanisms forcommunity justice are actually mechanisms to accede to the administration of justice as a system. It

is therefore believed that there is one system for the administration of justice, to which a certainsector of the populationthat sector catalogued as the communityhas access, which to a certain

extent denies full citizenship. These members are offered a type of administration of justice that isreduced to conflict resolution. As such, it can offer no guarantees, no respect for human rights and

appears to have no concern for the formal equality among parties that is demanded by formaljustice, which seems to rely on a political link that is more precarious than citizenship. Nevertheless,

and in spite of being managed by some non-state entities, what it does offer is an attempt to keepthe process subordinated to the judicial system by establishing more or less efficient measures for

keeping the process submitted to state law.

From the market perspective, conflict can be seen as an area of the market in which demandfor a product is generated. This product is the service of justice, which must be submitted to the

rules of supply and demand and for which, therefore, the maximum value lies in productivity,which must necessarily be translated into efficiency in the production and distribution of the ser-

vice. Hence, given a scenario in which a large company (the state judicial system) cannot sufficientlyand adequately address a conflict in all of its forms, the need arises to increase the supply. In this

sense, the increase in local and community mechanisms for the administration of justice can easilybe associated with the dynamics of commercial decentralization in the diffusion of justice.

The principle of the community can act as both a determinant of and a specific instance for theprocesses of the regulation of a specific social space. It functions as a determinant factor in that

identity and belonging form the basis of conflict management and help to orient behavior. It worksas a specific instance of the process in that the dynamics of social regulation are a path for the

creation and recreation of feelings of identity and belonging. Under this principle, regulation isbased on the relational fabric that both exists and is produced by this process.



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Starting from the principle of community, we must recognize the dynamics of widely varyingintensity in which the more autonomous communities establish the norms and mechanisms that

regulate them and serve to manage their conflicts. Yet, this does not mean that all of the dynamicsof justice present in the community environment operate under [the community] principle. Even

though we can use the principle of the community to speak of functional mechanisms of communityjustice, we could just as easily do the same thing based on the principle of the state or of the market.

In each of the cases, the community actions may have a different meaning in terms of externalregulation and self-regulation, heteronomy or autonomy, subordination or empowerment, the broad-

ening of the state or the market and the development of the community.

THE NEW MAP OF REGULATION

AND THE STRATEGIES IN COMMUNITY JUSTICE

The new map of regulation and the administration of justice is sketched according to the competi-tive or cooperative ways in which the different principles of regulation operate in different regula-

tory settings. Thus, the dynamics surrounding the development of mechanisms of community jus-tice might be more intelligible if we analyze the political strategies that are pursued through them.

I believe that each experience of community justice implies a combination of the principles ofregulation, depending both on the specific contextual determinants and on the particularities in the

definition of each setting of conflict management, such as the interaction between the actors in eachcase. Thus, our role in this part of the formulation is to identify the political strategies that might

come together in a specific case and to relate them to the principles of regulation. Then, by analyz-ing each case in particular, we can evaluate how each of the different principles operates within it.

An inventory of the principle political causes for the current development of mechanisms ofcommunity justice might spring from a combination of the following elements: communal coexist-

ence, wholeness, the decongestion of legal channels, access, autonomy, identity or belonging. All ofthe political trends in community justice are based on at least one of these strategies and, in the

majority of cases, a combination. Let us see what this entails.

Communal Living

Given that the immediate task of the administration of justice is the generation of conditions for

peaceful coexistence among people who belong to a social environment, an attempt is made toguarantee that the mechanisms in place precisely meet this task. That is why two main paths have

been preferentially chosen in the administration of justice: the imperative path and the constructivepath. The first refers to justice as the rule of law. From this perspective, peaceful coexistence is the

result of order and the administration of justice happens to be one of the principle ways of guaran-teeing social order. Thus, its role is to specify, in each case, the norm that guarantees the enforce-

ment of the legal order. The constructive path refers to the administration of justice as a mechanismfor the construction and reconstruction of the social fabric. From this perspective, the existing legal

norms are not a straight jacket, but rather a tool to be used alongside others to create conditionsfavorable to repairing those social vehicles affected by a situation of conflict. Thus, while the first

paththe imperativelooks to the past to define who is acting according to what is ordered bylaw, the second path looks to the future to find a way to create more fluid [social] relations.

The first pathwhich we here call imperativeis predominant in the modern West, and hasrevealed several important fissures. As a result, there is a search within mechanisms of community

justice for modalities of constructive justice that offer better conditions for the production of co-existence. This search does not, in most cases, assume the substitution of one model of justice for

another, but rather their articulation and complementarities with the ways of dealing with conflictthat continue to be offered by the judicial system.



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Holistic Treatment of Conflicts

We have already noted the limits of state law in terms of giving a full account of socially relevantconflict. Such limits are manifested in both the impossibility of the state legal system to attend to

non-legal conflicts, and in [the legal systems] approach to the non-legal dimension of those con-flicts that are covered by the normative structure of state law. These are vectors that continually

mark in an evident manner the limits of state mechanisms in the face of conflict, as well as the statesdeclining ability to shape and order reality. In the face of this situation, we find the need to search

within community justice for instruments not found in the states legal mechanisms that allow for aholistic treatment of conflict.

A holistic approach to the treatment of conflicts can be achieved from two perspectives: spe-cific and contextual. The first essentially relates to the way in which the parties involved directly

manage their process and the behaviors that frame that process. Thus, beyond attending to the legalaspect of the conflict, it is also necessary to contemplate its economic, cultural, and other dimen-

sions. On the other hand, from the contextual perspective, a holistic approach to conflicts does notsimply contemplate these dimensions with regard to the parties involved, but also with regard to

the social environment in which the conflict unfolds. From a cultural perspective, the conflict canneither be considered nor treated as independent of the social structures in which it exists.

The mechanisms of community justice present themselves as an effective channel for the holis-tic treatment of conflicts given the fact that, in many cases, they rely on modes of intervention that

allow for the penetration of different dimensions of the controversies (see Ardila 2000). However,of course, the practitioners [of mechanisms of community justice] range from those who concentrate

more on inter-party conflict to those who intensely link the controversy and its treatment to thecontext in which they arise.

Decongestion of the Legal System

The legal system tends to be overwhelmed by the conflicts thataccording to the state legal norma-

tive structureit must attend. This trend is expressed in several ways: (1) The backlog of issues tobe resolved, as expressed through the increasing rate of procedural delays; (2) increasing slowness

in processing cases that are underway, which also results in many cases in inappropriate judicialdecisions because the timing of the decision does not line up with the unfolding social reality; (3)

the expansion of impunity, in which many of the rights guaranteed in criminal cases tend to receiveonly purely symbolic support from the state. In other words, the congestion of the judicial system

means that those who execute legal justice are less and less able to respond to societal demands forconflict management and less able to provide the necessary legal aid to help uphold rights as a

reality for the entire population of the state.Faced with this problem, one can recognize a very influential trend that promotes, among

other things, the mechanisms of community justice as an adequate way to clear out the judicialoffices. The creation and use of these mechanisms helps to relieve the pressure of conflict on judicial

offices. In effect, it becomes necessary to transform the system of the administration of justice into[a system] which ties together different non-legal modalities (often called alternative mechanisms

of conflict resolution), including the mechanisms of community justice. What this involves, then, isa division of the responsibilities surrounding conflict management between legal and other actors.

This means that many of the conflicts covered by the states legal regulation come to be served bymechanisms of community justice.

Access to the Administration of Justice

The problem of access to the administration of justice is, ultimately, the problem of the effectiveguarantee of the rights established under the legal order. Without access to protection through the

administration of justice system, the aid that the states legal structures offer to certain interests andwhich is part of the essence of citizenship becomes null and void.



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Nonetheless, there are certain reasons why judicial structures have historically lacked theconditions for offering access to more or less broad segments of society, and why the trend is

getting worse. (1) One reason is geographical, in that the justice system is not able to locate itself atreasonable distances in order to attend to cases in areas far removed from the economic and politi-

cal centers of power. (2) Another reason is economic, in that procedural costs are high (there arecertain legal procedures that are prohibitively expensive for certain sectors of the population) and

regressive (meaning that the poor end up paying more relative to their income). There are severaltypes of expenses: those that the parties have to pay for the procedures themselves, the costs in-

volved in terms of personal energy and work hours dedicated to following ones case, and thosethat, because of the [nature of] the judicial process, cease to be noticed (in which case the slowness

of the process becomes more and more aggravating with each passing day). (3) A third reason iscultural in two respects: knowledge and identity. Knowledge of ones rights and how to protect

them is not evenly distributed across society, meaning that for some sectors of society it is muchharder to make use of the judicial system in order to protect ones interests. With regard to identity,

here I will only mention the feelingso common in popular sectorsthat the law and the justicesystem are foreign and rely on incomprehensible logic and values.

Different strategies have been developed to provide access to the administration of state

justice, from the reorganization of the legal system to advocacy of popular legal education pro-grams, to legal assistance programs of all ideological stripes. Regardless, to the extent that the gap

between the processes of legalization and judicialization continues to grow, such strategies tend to

become obsolete because they do not attend to the fundamental imbalance between the two. Thus,mechanisms of community justice are seen as tools that allow for geographical, economic and cul-

tural access: geographical due to the proximity practitioners can have to the conflict; economicbecause the procedural costs can be reduced to ridiculously low levels, and cultural because the

parties involved are more familiar with the procedures and rules used to manage conflicts in acommunity environment and can more easily identify with them.

Empowerment and Autonomy

The policies that advocate mechanisms of community justice tend to be located within fields thatpromote participation. Participation is identified as the opposite of representation in political action

at different levels of public action. While in a representative system power is exercised by a minor-ity in the name of the majority, in the participatory model, the majority takes part in the exercise of

power. This being the case, it becomes important to estimate to what extent we can expect commu-nity practices of conflict management to empower people. There are three different settings in

which power might feasibly develop: among the functionaries of justice, among the parties in dis-pute, and within the community. The functionaries of justice use the available mechanisms to de-

velop some powers to affect the reality in which they operate, while simultaneously gaining theability to be interlocutors with the outside world. The parties have the power to direct the manage-

ment of the very conflicts that they themselves are involved in. They tend to act on their own behalf

in matters of community justice and it is they whounder many mechanismsretain decision-making power throughout the process. The communities rely on forms of internal and externalempowerment through the mechanisms of community justice: internal power is reflected in the

ability to define the norms according to the ways in which their issues will be handled, as well asthe ability to designate and control functionaries. At the external level, by acting more cohesively,

developing dynamics of participation and controlling their own issues (Ingvesson 1993: 381-ff.)and by being able to guarantee all of this through their own mechanisms, communities gain strength

for the advancement of their interests in other social environments, particularly vis--vis the state.This question of external power brings into consideration the problem of autonomy. Although

mechanisms of community justice do assume the development of a certain autonomous power, it is



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worth wondering where that power lies. It is possible for the autonomy to lie within the communityor to simply be in the mechanism. This is ultimately a question of who controls the mechanism. If

the community itself controls it through its political structures, we might say that autonomy lies inthe community. If [control] comes through legislation and state bodies, then we cannot properly

talk about autonomy. If the community [controls the process] through diffuse mechanisms such assupply and demand, we might be faced with a mechanism that is very autonomous, but with little

connection to existing structures.

Identity and Belonging

Community justice is also proposed as a tool for community-building. This derives from something

that I have been defending since the beginning [of this text], which is that the structures of regula-tion are the skeleton of a community. That being the case, the production of collective identity (and,

in each case, of individual identity) is the consequence of the construction and consolidation ofnorms that make each community unique with respect to other [communities]. To the extent that

these norms are enacted and reproduced through mechanisms of community justice, they partici-pate in identity production as sources of rules for a specific community in which such concepts have

a place.

In the same way, community justice can be seen as a tool for community-building, to theextent that it produces and reproduces a feeling of belonging. On the one hand is the excitementwhich is common to conflict management [when people recognize] those aspects that are common

to both parties and which make them members of a larger whole. But also, as highlighted through-out this reflection, belonging to a group is related to acceptance of its norms. A person belongs to

the community whose norms he recognizes and he expects that those norms are the basis fromwhich issues will be considered and decided in matters of controversy. Belonging feeds community

justice and community justice feeds [a sense of] belonging.

PRINCIPLES OF REGULATION AS THE BASIS

FOR POLITICAL STRATEGIES IN COMMUNITY JUSTICE

Each one of the strategies that we have just seen can be the grounds for interaction between theprinciples of the state, market and the community. And if we wish to approach the mechanisms of

community justice in all their richness, we cannot be unfamiliar with the complexity that they entail.Because, undoubtedly, the particularity of each mechanism is affected by the strategies that are

developed around it, among other reasons because often the strategies change their essential mean-ing when determined by one principle or another. There are many strategies in which the central or

near-exclusive presence of a single principle is easily identifiable. The state or community or marketalmost completely determines a bet and the other principles merely assist or dialogue with the

dominant principle. Yet there are also strategies in which the three principles concurin differentforms and often competitivelyas vectors that pull the mechanisms in different directions.

The principles of regulation intervene in different ways when faced with the processes ofcommunity justice. The differences between one principle and another can be better understood if

one takes into consideration the way in which strategies are made from each principle with a viewtowards the existing mechanisms of community justice. This seems like an extraordinary task, which

it may well be. Yet, it seems to me that it is a path one must take in order to understand theuniqueness of each mechanism of community justice. This should not stop us from attempting an

approximate sketch of some of the general elements of analysis that help us to study the interplay ofvectors that influence each mechanism.



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Politics and Principles of Regulation

The first element is perhaps the most general and has the most to do with what we understand to bethe politics of community justice. We start from the basis that an understanding of politics tran-

scends the obligatory reference to the state and includes actions that can be explained from a mar-

ket or community point of view, and which take on a new definition with regard to processes ofregulation and conflict management in the current stage, which is characterized as a crisis in theadministration of justice.

Hence, in attempting an approximation of the trends that are defined by each of the principlesof regulation, we can say that the development and expansion of the dynamics of community justice

are explained as the complementary and competitive confluence of the three principles of regulationin the face of the most general processes of justice administration. This is characterized on the one

hand by the exhaustion of a paradigm (through changes in the settings of regulation and the rela-tionship between conflicts and litigation), and on the other hand by a change in context (through

transformations in the spacing of power and of law as well as the ways in which resources for theadministration of justice are socially assigned).

The trends that can be explained using the principle of the state are largely directed towardhelping the state to control social environments through the subordination of social orders that arenot part of the states legality. The mechanisms of community justice are a shortcut to allow the state

to grow in its capacity for regulating the dynamics that cannot be directly controlled by the instru-ments on which the state legality normally relies. Thus, faced with the reductionist and conformist

rigidity of the normative structure of the political system, a model is erected in which the complicat-ing diversity which is made possible through mechanisms of community justice, is subordinated

and limited through legal regulation.

The principle of the market-based trends that are found in the push toward community justice

can be identified because they attempt to promote and consolidate a system of supply and demand

Strategies and Principles of Regulation

Principle State Market Community

Bet Subordination of non-legal

orders to the state realm.

Consolidation of a system

of supply and demand in

the service of justice.

Development of the commu-

nity through its regulatory

structures.

Co-existence Subordination of construc-tive mechanisms to the

state order.

Accumulation of resolvedconflicts.

Construction of the socialfabric.

Empowerment and Au-

tonomy

The subordinated function-

ary.

The parties. The social whole and the

regulatory system.

Identity and Belonging Subordinated community. Individual. Community.

Holism Codification of variables. Treatment of the different

variables within the conflict.

Internal, contextual vari-

ables.

Decongestion Reduction of issues to be

handled by the judiciary.

Distribution of responsibili-

ties toward communityjustice.

Broadening of the supply

of the administration of

justice.

Access Increase in state-related

resources of conflict

management.

Increase in resources of

conflict management.

Resources of justice

administration according to

community norms.



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in the service of justice. This translates into the subordination of the rules and practice of justiceadministration before the laws of the market. The identification of the service of justice adminis-

tration with merchandise, the functionaries of justice as agents of the market and the parties of theconflict as users or consumers, assumes a direction which tends to impose itself on all mechanisms

of justice in our age, community justice being no exception.

This means that, from this perspective and given the criteria of efficiency and efficacy (withregard to private interests), users (the parties in conflict) are guaranteed freedom of choice between

products (procedures, results in conflict management) offered by a range of providers (functionar-ies of justice). This reduces the dynamic of justice administration to a relationship between clients

(provideruser) and the processes of justice administration appear to lose their ties to the socialenvironment in which they are inscribed. The efficiency of the administration of justice is reduced

to the satisfaction of the parties, independently of the way in which each case influences the largerdynamics of community regulation. It is hard to find community figures who possess a blatantly

commercial bent, but it is not so hard to recognize the commercial principle in figures who tend toidentify with the state and principle of the community.

With regard to the trends in which the principle of the community is recognizable, the mecha-nisms of community justice are subordinated to the broadest processes of regulation that occur

within a specific community. Community justice participates in a process of community develop-ment through the construction, reaffirmation and re-creation of the regulatory structures that exist

within it. Thus, each case of conflict management essentially acts out the institutional basis of thecommunity by activating local social norms. Given a controversial case, the mechanism of justice

places the regulatory structures of the community before that specific case. As a result, conflictmanagement translates into a medium for community self-regulation to the extent that (1) the entire

social groupand not just the parties involvedparticipate in the construction and enforcement ofnorms, and (2) the process strengthens community institutions in that it reaffirms the communitys

norms and the outcomes generated through its regulatory processes.

Community Justice, Conflict, and Communal Living

The mark of a given principle of regulation can be seen through the different visions for howmechanisms of community justice contribute to peaceful co-existence. Beyond the evidence thatmechanisms of community justice contribute to social order (Ingvenson 1993: 379-ff.), the state,

market and community can concur in the bet for community justice as instruments of communalliving, for attenuating violence and for peace-building. Moreover, [the different principles] can

influence the development of this bet through two elements: constructivism and holism. Yet thereare fundamental differences between the strategies of each principle.

There are, first of all, significant differences with regard to constructivism. The momentum

towards constructive community justice is seen by everyone not as a tool to be imposed, but aboveall as a way to find convenient paths toward managing conflicts in the future. Nonetheless, there is

a fundamental difference. In the principle of the market, there is no recognition of a specifically

social realm of regulation, so that the task of conflict management tends to be focused exclusivelyon the conflict itself, the parties involved and the respective functionary, while the state and prin-ciple of the community cannot afford to ignore the social realm of regulation (the former preaches

the justness of the community, the latter the adjustment to legal norms). As a result, understandingwhat constitutes communal living changes from one principle to the next. Hence, from the [perspec-

tive of] the market, communal living is the result of the accumulation of constructively resolvedconflicts. Meanwhile, the community perspective must be primarily understood as the construction

of the social fabric and the re-establishment of social links; while the principle of the state impliessome form of subordination to state-based legality.



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These differences are also expressed in the momentum behind the bet for holistic conflictmanagement in community justice mechanisms. From the principle of the market, attending to the

different dimensions that affect the parties involved is a matter of quality improvement in theservice of justice administration. Within the principle of the community, holism means including the

social environment in which the conflict occurs. This means that not only can those directly affectedhope for a means towards peaceful conflict management, but also that the community will improve

the conditions for communal living and co-existence.

From this point of view, conflict management should be aimed at repairing not only the ties

between the parties; but rather the entire community and the social links that have been affected bythe conflict. This involves improving conditions for the structures of regulation that might have

been seen as harmful to the conflict (or revealed their inefficiency when faced with budding cases).Finally, the principle of the state tends to take the different variables in the conflict that are not

covered by its normative structures and subordinate them to the rule of state law.

Community Justice, Power and Community

Empowerment, autonomy, identity and belonging can be seen at first glance as community strate-

gies. Nevertheless, it is important to point out that, even though the [community] principle mightbe present in all of them, the state and market should also be considered as part of each as we

complicate our analysis. In the first place, it is important to point out that the market bet can bemore respectful of the parties in that it provides them the freedom to choose between different

mechanisms and greater decision-making ability over their own conflicts. Meanwhile, the principleof the state can tend more towards empowering the functionaries of justice by providing them with

a greater ability to determine behavior in the conflicts in which they participate and in the socialenvironment in which they operate.

Meanwhile, the principle of the community assumes the complex empowerment of differentfactors within the community itself: community norms and authorities. Hence, the principle of the

community empowers regulatory structures that strengthen both community appeals (in which normsare produced on a case-by-case basis) and the functionary (who embodies the institutional aspect of

the community to which he or she belongs and to which he or she is submitted).This concept can be better understood if we relate it to the bet of autonomy. The market tends

towards an ideal situation in which the partiesrepresenting the demand sideand the function-

aries of justicerepresenting the supply sideboth approach the market as subjects who, throughtheir own free choice, establish a relationship in which the latter assumes the task of managing the

conflict of the former. This being the case, each side has the autonomy to choose its client. In themeantime, in the principles of the state and the community, autonomy can be seen through the

functionaries and the mechanisms of justice. In spite of this, the types of autonomy preached byeach side are contradictory. The autonomy of the mechanism from the point of view of the principle

of the state should be compatible (or else it would not be state-based) with the subordination ofrules to state law. The community-based autonomy of the mechanism is outward-oriented, with an

eye towards other actors such as the state, and should be part of the communitys own structures ofregulation and institutions.

In the same vein, it is important to distinguish the way in which the principles of regulation

use community justice to advocate for identity and belonging. Identity, as seen from the principle ofthe market, is essentially individualistic, such that processes of community regulation serve prima-

rily to determine the conditions under which it would be desirable to provide the service of justice.In this sense, a cultural environment might be viewed as a portion of the market in which the supply

and consumption of the services of justice take place.

Meanwhile, in the other two principles there is a recognizable sense of the collective in thestrategies surrounding identity and belonging. In the principle of the community, the community



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rules are, as mentioned above, the setting for and the result of the mechanisms of justice. Theprinciple of the state also makes use of this principle. It attempts to achieve the strongest possible

link between community justice mechanisms and the community processes of regulation (there istalk of putting the community first and having equity as a criterion of primary importance before

the law), while still establishing instruments that tend to guarantee the subordination of commu-nity-based structures of regulation to state-based structures. [These structures include:] (1) the

states right to intervene in the community to support the national legal regime, and (2) legal con-trol over the actions of the functionaries of community justice.

Community Justice and the Legal Justice System

The two main strategies that emerge from the principle of the state in the push toward mechanismsof community justice are: the decongestion of the justice system and access to the administration of

justice.10As we have seen, the states interests (in combination with some other strategies) broadlysupport the development of different mechanisms of justice within the community. The two strate-

gies must be related to each other and analyzed in terms of the unique potential they have in thecontext of the administration of community justice.

With regard to the first, we must say that the two strategies diverge with regard to their

underlying interests, and in most social settings in which they are both present, they have beencontradictory. On the one hand, the bet of decongesting of legal channels is rooted in the need forthe state system to effect its supremacy through the imposition of its norms. The concern over

congestion comes from the notion that there is social disorder when the state system for adminis-tering justice is unable to enforce state norms.11

On the other hand, the bet regarding access to the administration of justice comes from aninterest in expanding citizenship by generating conditions to incorporate those whose legal rights

have not been protected. The need for access has been highlighted by intense social movements;movements that have developed at different points in time, but that have all found a particularly

propitious space in the societies of the welfare state. In these societies, access to legal protection ofones rights became essential to guarantee the main objectives of such states.

These two strategies, although they appear to harmonize in many cases, must be seen asopenly contradictory in the context of the administration of legal justice. In the first place, because

of the costs involved. While decongestion is directed toward reducing the costs of the legal opera-tion, access tends to increase costs because it increases coverage and distributes more resources to

the weakest parties. In the second place, [the contradiction] is due to the measures involved in thisprocess. Decongestion implies measures whose practical significance is: (1) reduced coverage of

legal protection; (2) reduced guarantees of the formal equality promised to each party by the mod-ern justice system.

Meanwhile, the measures toward achieving access involve: (1) a qualitative and quantitativeexpansion of services; (2) an expansion of the ways to help excluded people overcome economic,

cultural, and geographic barriers that impede equal access to the administration of justice. These

differences and contradictions are in some sense the basis for the principle movements that haveoccurred within the different branches of law throughout modernity.What is especially notable right now is that community justice is most often described as

effective in satisfying the two sides, with no apparent contradiction. Evidently, the development of

10 The expansion of access to justice coincides with the democratic-administrative rationalization

of the judicial process (Harrington 1982: 62).11 This is why Abel (1982: 267 and ss.) points out that the community institutions that join with the

existing institutions of formal control neither replace them nor imply their reduction. Therefore,

rather than talking about decongestion, it might be more appropriate to talk about reinforcing

the judicial system.



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mechanisms of justice in the community lightens the burden on the judicial system while at the sametime it facilitates access to the administration of justice. What has happened? Is the change in the

setting of conflict management enough to guarantee that the contradiction that previously appearedunsolvable should find a solution that is acceptable and satisfactory to all? Evidently what has

happened is that there has been a change in the setting (from state to community institutions) formanaging some controversies, but not all. It is clear that decongestion is attempted through reduc-

ing the issues to be dealt with by the judicial system, by turning over part of the responsibility (forcertain issues) to community actors. It is clear that this state interest has been fully achieved.

However, what happens with access to justice administration through mechanisms of commu-nity justice? There is no doubt that these mechanisms constitute a tool that is more accessible in

economic, geographic, and cultural terms than the conventional judicial system for the administra-tion of justice. That being the case, the mechanisms of community justice have a clear tool for man-

aging conflicts. But it does not necessarily solve the problem of access to the administration ofjustice. What remains clear is that community justice offers a type of justice administration that

cannot be achieved through conventional legal justice. Yet there is disagreement over the quality ofthis offer.

It is clear that, in the principle of the state, the distribution of responsibilities between the

judicial system and the community mechanisms creates a division between those conflicts that haverecourse to all of the guarantees of protection of the parties rightsas established by the lawandthose that dont. That being the case, we will have a system of discriminatory access (in which we

can talk about first- and second-class justice), in which the state bows out of its obligation to protectall legally recognized rights in order to concentrate on only a few of them. 12 With regard to the

existence of mechanisms of community justice, given the absence of guarantees from the state, it isapparent that we can only talk about access to the administration of justice to the extent that there

are reliable guarantees offered through the communitys own institutions. When community insti-tutions cannot be relied upon to manage conflicts, it is difficult to see a mechanism of community

justice as a mechanism for access to the administration of justice.13 It can perhaps only be an alterna-tive mechanism for dealing with conflicts.

SETTINGS AND STRATEGIES:

KEYS TO STUDYING COMMUNITY JUSTICE POLICIES

Following this line of thought, the analysis of policies in the field of community justice must be

linked to the principles of regulation from which each one of these policies is developed (and whichthey benefit). Thus, we can recognize the principle of the state in policies whose actions are directed

at the development of mechanisms of community justice as a medium for strengthening the statesability to shape social reality. We can identify the presence of the principle of the market when the

axis of the policy revolves around the satisfaction of demand through the advocacy of mechanismsof community justice that improve the quality and diversity of the existing supply of justice. And we

can recognize the principle of the community in the policies that focus their attention on strengthen-

12 Abel points out that, although it can be deduced that there is a public demand for non-state

institutions of conflict management, given the generalized distrust that tends to exist toward a

judiciary that tends to privilege the interests of big business, the creat ion of informal alternatives

accentuates discrimination because, under certain circumstances, the speed and the economy

of costs undermine the construction of a fair and acceptable solution (Abel 1982: 8).13 According to Abel himself (1982: 297), the existence of mechanisms of community justice in-

creases the disadvantage between parties with opposing interests and actually deprives the

weaker parties of the advantages offered by the states legal institutions. The states protection

of legally consecrated rights is subjected to the different factors that operate in informal mecha-

nisms.



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ing local institutions and the self-regulatory processes of the community. Thus, a policys deepestnature may be found in its emphasis on the strategies that can be constructed from a given principle

of regulation.

Yet the analysis will always require a deeper level of complexity, given that the principles of

regulation cannot act efficiently with the same policies in any given context. Thus, it is then neces-sary to specify the particularities that each principle might need to develop in the different regula-

tory settings in which it will have to act in contemporary society. In the settings that can be charac-terized as involving full citizenship, the state order is a reality and the supremacy of jurisdictional

laws and authorities is recognizable. The main goal of community justice in such a scenario lies inthe attempt to surpass (in opportunity and quality) the procedures and decisions that are produced

in conflict management. The most important tension here appears to be between the state andprinciple of the community. While in the first, the fundamental objective is to guarantee the integ-

rity of the legal order, in the second priority is given to the reconstruction of the social fabricaffected by the conflict. Thus, in the first case more importance tends to be given to the rules that

the state defines for the mechanisms and their actions, while in the second greater importance isgiven to the relationships, the rules, and to the [social] ties that the mechanisms try to attend to.

We can also, to a certain extent, identify a tension between these two principles of regulationin settings of restricted and marginalized citizenship. Only here, the state and community compete

as options for [social] order in the face of a reality which lacks recognizable rules in specific socialcontexts. The tension is therefore between the tendency to build ones own, self-regulating institu-

tions, and the tendency to produce social order by developing regulatory processes that are subor-dinate to the state and the states legal order and that rely on institutions thatdespite being

located in the communityare to a greater or lesser extent submitted to the centralizing normativestructure of the state. The tension in this situation is expressed in the environment in which efforts

and resources are concentrated. The principle of the community determines a policy in which actionis directed toward the construction and strengthening of its own norms and institutions, while the

principle of the state may concentrate on the production of an institutional system thatdespitebeing located in the community and having links and referents thereinis subordinated to the state

power. Its subordination is produced through organic mechanisms (statutes of state order that arenamed, regulated and controlled by state bodies) and functional mechanisms (in the determination

of the most general norms to define the realm of action, the procedures and the limits to the deci-sions that can be made).

The main tension in the settings that are ruled by non-state legal structures, even when lo-

cated within the same principles of regulation, is essentially different. The confrontation centers onthe existence of a social order within the community that is different from the [order] linked to the

state. As a result, there exists an institutional system that uses normative structures and bodiesbased on different centralities. Faced with this reality, the state intervenes as a principle of tension

in an attempt to establish more or less intense mechanisms for subordinating the communitys nor-mative system to the normative system of the state. This tension can be seen in the states policies of

recognizing the communities and their legal structures. While [the state] is saying that it accepts thefact that a human group is ruled according to its own norms and procedures, it is also saying that

these are to a certain extent subordinate to the laws of the state.

In light of the above, it is important to point out that the most evident tensions are thosebetween the state and the community. Although the other principle, the market, competes with the

other two in each of the scenarios, it generally does not reach the point of becoming antagonistic.On the contrary, what we can observe is that the principle of the market integrates elements of the

other two principles into its regulatory structures and offers the result as an improved product,through which both the state and the community continually permeate more and more. Thus, start-

ing out from a limited foundation for handling conflict, [the market] incorporates into its product



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part of the principle of the statesuch as the legal efficacy of its actionsand part of the principleof the communitysuch as a certain degree of holism in managing controversies or appeals to

community fairness. That being the case, a subtle tension exists between the principle of themarket and the other two. The social environment of regulation assumed by the other two tends to

be downplayed by the market. This has repercussions with regard to the type of actions that [themarket] develops. While the contradiction between state- and community-based policies has to do

with which regulatory setting each principle preferentially develops and fortifies (i.e., state or com-munity norms), the tension between the market and the other principles is expressed through the

fact that the principle of the market concentrates on the quality of the product. In this manner, itconcentrates on strengthening the techniques of conflict management.

Finally, I wish to underscore something that has already widely surfaced. There are no purepolicies. Without community, there is no community justice because the principle of the community

is always needed as an indispensable path that allows the policies to arise from other principles. Thestate is an undeniable reality with regard to each of the principles in each of the settings. Even legal

pluralism, which is the most commonly cited policy with regard to the principle of the community,requires a part of the state in order to operate in a world in which the total isolation of the commu-

nity is impossible. The market has permeated and continues to permeate the policies that arise from

the other principles.

All of this means that when we say that a policy is rooted in a given principle, we are neces-sarily highlighting the principle vertex of a triangle in which the other vertices exist in some form as

a guide for the processes of community justice.

REFERENCES

Abel, Richard (1982a). The Politics of Informal Justice,Vol. I. London: Academic Press.

_________ (1982b). The Politics of Informal Justice, Vol. II. London: Academic Press.

Ardila, Edgar (2000). Justicia Comunitaria: Claves para su comprensin, in Pensamiento Jurdico, 1. Bogota: LawSchool of the Universidad Nacional de Colombia.

Bonafe- Schmitt, Jean Paul (1991). Las Justicias de lo Cotidiano, Translation by F. Caballero Harriet and A. Irizar Gmez.San Sebastin: Laboratorio de Sociologa Jurdica.

Faria, Jos Eduardo (1995). El poder judicial en Brasil: Paradojas, desafos y alternativas, in El Otro Derecho, VII, 2.Bogota: ILSA.

Habermas, Jrgen (1998). La Constelacin Postnacional. Barcelona: Paids.

Harrington, Christine (1982). Delegalization, Reform movements: A Historical Analysis, inRichard Abel, ed., ThePolitics of Informal Justice ,Vol. I. London: Academic Press.

Hobbes, Thomas (1994). Leviat. Mexico: Fondo de Cultura Econmica.

Locke, John (1995). Segundo tratado sobre el gobierno civil. Barcelona: Altaya.

Pastor, Santos (1993). Ah de la justicia! Poltica judicial y economa. Madrid: Civitas.

Rousseau, Jean Jacques (1983). El contrato social. Madrid : Sarpe.

Santos, Boaventura de Sousa (1998). De la mano de Alicia: Lo social y lo poltico en la postmodernidad.Bogota: Universidad

de Los Andes.

_______ (2000).A crtica da razao indolente, Volume I. Porto: Edicoes Afrontamento.

Vallespn, Fernando (2000). El futuro de la poltica. Madrid: Taurus.

Velsquez Ruiz, Enrique (1985). La comunidad una imagen o un concepto? in Rev. Procesos y Politicas Sociales, 22.

Wolkmer, Antonio (1994). O pluralismo jurdico. Fundamentos de uma nova cultura no direito. Sao Paulo: Alfa-Omega.

Yngvesson, Barbara (1993). Local People, Local Problems and Neighborhood Justice: The Discourse of Commu-nity, in Sally Merry, ed. San Francisco Community Boards: The Possibilities of Popular Justice. Ann Arbor: TheUniversity of Michigan Press.

community justice as contemporary reality bases for an analysis of public policies

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