
Social Control vs. Human Needs: 
the Practice and Promise of RADRS

by Richard Taylor

The changed form and substance of law is rather like what a jailer
might do who shifted a prisoner's chains...or removed them and 
substituted bolts and bars.

-Tolstoy


I.               The judicial alternatives movement is seen by some as a
opportunity for individuals and communities to recover or assume a
certain degree of control over the administration of justice in their
own lives. Others have raised the criticism that it amounts to a high-
tech way for the state to exert control over citizens. I will examine the
issue of social control relating to ADR, and hope to develop the
reader's ability to make statements regarding ADR's putative
liberatory potential; ie does ADR enable people to manage their needs
for social order independently of the formal judicial system? Can it? If
not, how might the emancipatory vision be realized? Evidence from
sociology, legal scholarship, and primatology will be considered.

II. 	Joseph Scimecca, in his paper _Conflict Resolution and a
Critique of RADRS_, first chooses to define ADR in a certain narrow
sense as being Rthose processes which are alternatives to the formal
legal or court system, in particular, Neighborhood Justice Centers or
Community Mediation Centers.S He then names a number of social
control criticisms. ADR, like formal law, is embedded in
individualism. This enhances the capacity for its use as social control
by diverting attention to the grievance of the individual and away
from the critique of social structures. ADR practitioners attribute
failures of their processes to the disputants' recalcitrance and not to
any theoretical inadequacies in the structural premise of the processes.
	Also, ADR seeks to breach misunderstanding rather than
redress power imbalances, and this limits the role of third parties to
conducting discussion rather than providing insight into
underlyingissues. This is tied into the question of neutrality. Where
imbalances occur, a neutral third party is necessarily an apologist for
the status quo. Scimecca remarks that the stated ideal of providing
wider access to justice may have been lost to the need to carve out
institutional turf and create jobs for professional practitioners, but has
mixed feelings about this insofar as he believes that a forty-hour
training period is insufficient to practice conflict resolution. His final
critique, linked to the one on individualism and perhaps the most
important, is that ADR represents not so much an alternative to the
courts as an alternative to community organizing and to politics itself,
lacking, as it does, organic connection to communities.
	Christine Harrington, in _Shadow Justice_, provides more
specific evidence of ADR's social control function. She begins her
work by discussing the modern court reform movement and its
motivation. This movement is variously known as "ADR,"
"informalism," or "delegalization." She considers its motivation to be:
the criticism of lower courts for inhibiting minor offenders' access to
justice and the claim that some disputes are so complex as to require a
more flexible response than that provided by the adversarial system.
Images of the state withdrawing its supervision over minor disputes,
and of local communities asserting control over their own affairs are
presented as the idealized portrait of informalism, but she contends
that the sociological evidence, particularly the Kansas City
Neighborhood Justice Center experience, shows otherwise. The
"target community" of the KCNJC, interestingly enough, is defined in
terms of a certain police jurisdiction. She remarks, "The coercion and
authority of police, prosecutors, and judges are essential elements to
the institutional existence of neighborhood justice centers."
	The "alternatives" movement has transformed traditional legal
ideology (formalism) by creating a new basis for legitimacy
(functionalism) in the processing of minor disputes. The movement
thus represents a change within the mainstream ideology and not a
departure from it. The effect of this new basis for legitimacy expands
the social control capacity of the judicial system by subsuming the
resources and capacities of the disputants themselves, freeing the
system to deploy resources elsewhere. Early ADR debates between
grass-roots organizers and those who were out mainly to reform the
court appear to have gone to the reformers. Discussion now centers
around issues of professionalization and certification. Harrington
quotes the Justice Department Ad Hoc committee's characterization of
ADR as a movement of "anxious professionals and unwilling
participants" and maintains that this is so because how-to issues of
actually running dispute resolution programs have taken precedence
over demands for social justice. She closes by remarking that the
alternatives movement seems to have turned away from a social-
change strategy based upon legal rights and abandoned the courts as a
resource for political struggle.
	Richard Hofrichter, in his _Neighborhood Justice in Capitalist
Society_, says much the same as Scimecca and Harrington in his
demonstration that ADR is social control, but distinguishes himself by
placing ADR within the context of a social control rationale. He sees
ADR as a response to the limits of the capitalist state's order-
maintenance function. Private institutions for moderating conflict and
reducing tension (families, churches, unions, etc.) are destablized by
capital's needs for a liquid labor supply and ease of disinvestment. But
capital (the social class exercising ownership of the means of
production) has at the same time a contradictory need for politically
stable and orderly communities so that a reliable consumer/labor
pool can be reproduced. Traditional forms of order-maintenance are
reaching the limits of their applicability for a number of reasons. First,
social destabilization induces a shift in the nature of disorder to which
the adversarial system is ill-constituted to respond (family fights being
a prime example from the NJC perspective) and in which it would
prefer not to involve itself. Second, destabilization leads to greater
claims by working-class citizens on court resources. Since the courts
are socialized to maintain middle- and ruling-class interests, these
working-class claims on the resource are themselves a form of
disorder, especially if a collective challenge to capital might reveal the
class bias of the law. Third, people resist forms of order-maintenance
which they recognize as alien to the community, such as direct force
or bureaucratic control. In order for the social relations of capitalism
to survive, they must be secured without the open exercise of power
or promotion of class interests. The challenge to the capitalist legal
system, given its social control contradictions, is to translate the
problems of exploitative social relations into some kind of individual
pathology, ie getpeople to focus on each other and not on their
conditions.
	This crisis, the need to legitimate social control, gives rise to a
new technique that Hofrichter calls the Rinformal state.S Elements of
this Rinformal stateS include: providing the appearances of everyday
life, providing people with a sense of control by actively involving
them in a process, inculcating values of cooperation rather than
confrontation, moving the normative locus of problem solving from
public life to private, and engaging in a proactive rather than reactive
policy. ADR is a development which embodies these characteristics,
and is being used as a way for the state to bypass the limitations of
formal law.
	Law, in the liberal tradition, is the attempt to bring objectivity
to social relations, to construct unity from competing private desires,
to juxtapose freedom and order, and enable rational, objective
decisions. It is, Zenon Bankowski claims in _An Anarchist Critique of
Law Exemplified_, a fruitless project. The rule of law is morally
suspect in that it locates the responsibility for important decisions
outside the individual and gets her to do things outside the range of
decisions she is allowed to make. This makes her into what he calls an
Rautomatic mover,S a person of debilitated moral agency. The
objective generalization of norms (law-making) seeks to connect
people by abstract contractual relations and not through any basis in
love or community. The opportunity to live in a world where one can
act out of rational feeling and not out of a priori contractuality is
important to satisfying the human moral instinct. As Tifft and Sullivan
put it in The Struggle to be Human, to expect law to give meaning to
the human struggle for a moral existence is to state that the human
person is superfluous. Law becomes unstable as individuals seek to
realize their true selves and exercise agency.
	Since norm generalization must take place at particular
instances of legislative and judicial decision, it cannot determine all
possible outcomes and so must remain susceptible to the exercise of
choice in application of the norms. This choice is, of course, a locus of
subjectivity. The universalizing of consequences is seen by some as a
means to escape this. Much as Karl Popper describes scientific
objectivity as the internal coherency of the scientific universe, so is it
held that juridical objectivity can be attained through
consequentializing rules and selecting among alternate competing
rules to ensure the internal coherency of the legal universe. However,
Popper's standard for that coherency is the acceptance of hypotheses
by the scientific communityQhis famous "science is what scientists
do" and the juridical theory is similarly reducible to "law is what
judges do." For the sake of coherency, the system of generalized
norms must be operated only by the professionalized few; the so-
called "rule of law" is dead-ended into the rule of men by inherent
subjectivity.
	The moral necessity of subjective sovereignty and the
inauthenticity of objective authority combine to disqualify law as a
producer of real community. Bankowski suggests the embryonic
egalitarian social formations that appear in times of revolution
(communes, soviets, etc.) for the study of group settings which
mitigate social harm and allow people to lead morally authentic
individual existences.  Another   sort of inquiry is recommended by
Frans de Waal. He has for years studied conflict and conciliatory
behavior among chimpanzees, rhesus monkeys, stump-tailed
macaques, and bonobos in social settings, and stresses in Peacemaking
Among Primates that no similar observations have been collected on
human conflict. The chief lesson drawn from his work is that primates
regularly make up after they have fought. Chimpanzee females
knowingly act to mediate male-male conflicts and bring adversaries
together. These creatures also appear to understand the principle of
the collective lie and use it to create compromise situations which
avoid defining winners and losers. Aggression has such a long
evolutionary history that one must expect such coevolved
countervailing and buffering social mechanisms to accompany it.
	Human society is structured by this dialectic between
aggression and affiliation; social differentiation, role division, and
cooperation are its syntheses. Differentiation leads to the possibility for
disunity, and the oldest and most widespread method primates have
for maintaining social cohesion is, of course, hierarchy. Unity and
equality are hard to mix in a social formation, but some creatures do
resolve conflict and tension in egalitarian ways. Bonobos, given their
long hair, nearly upright gait, face-to-face mating posture, and other
features, are thought by many to bear a close relationship to humans.
Bonobo females maintain a unified intra-female social order without
resorting to a rank structure. Their intense homosexual contacts have
been implicated as a possible mechanism (cf. "Feminism is the theory,
lesbianism is the practice" from recent human history.) Such examples
suggest avenues for exploring the principles of unification without
subordination.
	The sociobiological raw material for peacemaking appears to
be the same for all five species discussed. The extent and manner of its
exploitation may be accounted for by developmental and
speciocultural differences. Scientific generalizations about this raw
material's manifestation in humans, unfortunately, are lacking. de
Waal cites two factors hindering the realization of human conflict-
resolution potential. One is that people become self-conscious and
attempt to modify their behavior when it is being recorded. New
methodologies for making controllable observations are needed. The
second is that most conflict research has the agenda of finding ways to
stamp out aggression rather than finding ways to canalize or integrate
it into life. Just as animals are not slaves to instinct, humans are not
automatons of reason; so, reconciliation should not be viewed as the
triumph of reason over instinct. The evolved psychological
mechanisms for peacemaking must be studied and made accessible.
	For Scimecca, ADR is not conflict resolution. In using his
narrowed definition of ADR, he is able to differentiate between
alternate approaches to conflict itself, something which both
detractors and supporters of ADR have failed to do. In seeking to
elucidate a theoretical base upon which the resolution of conflict may
rest, he cites the work of the Center for Analysis of Conflict in London
which takes the premise that there are certain universal human needs
which, when unmet, form the roots of conflict. Conflict, so it seems,
will persist until these needs are analyzed and addressed. Its research
has shown them to be:

1. A need for consistency in response	
2. A need for stimulation
3. A need for security	                                    
4. A need for recognition                      	
5. A need for distributive justice	                  
6. A need to appear rational and develop rationality
7. A need for meaningful responses
8. A need for a sense of control
9. A need to defend one's role

	He points out ADR's lack of any theoretical understanding of
conflict. This, indeed, is why it is calledRdispute resolutionS rather
than conflict resolution. The justification for its use stems from the
legal tradition and not from a human-needs perspective.
III. 	Quotation is a linguistic device for showing that a thing exists
in a world apart from the reality of its textual surroundings, and this is
why I have followed Scimecca's lead in writing RADR.S The term
"alternative" makes sense only within the purview of the state, since
the state holds a monopoly on the legitimation of what conflict is and
how it is handled. Labelling a thing as RalternativeS instead of framing
it in its own positive terms is a containment strategy, a way of
linguistically encapsulating potentially oppositional thought and
leaving it stranded in the mainstream. Scimecca all but spells this out
when he describes the range of practices referred to as ADR by the Ad
Hoc committee, and this is what prompts him to offer his own
definition. The definition itself does not quite go to the heart of the
social-control question, because it does not consider what social
control is, how it is exercised, or offer a rationale as to why ADR is
preferred to more overt forms. He passes up the opportunity to
identify the state as the ultimate agent of social control, sparing that
criticism perhaps out of his regard for the trained professional
intervenor. His reservations on professionalism clash both with his
own critique on individualism and with the capacity for mediation
evidenced by primate nonprofessionals. But Scimecca's definition does
what he says it does. It allows him to critique ADR in a way that
serves as a springboard for presenting needs-based conflict resolution,
and this is his greatest contribution.                        
	Harrington plays a familiar role as the good little liberal trying
to make the best of a bad system by working for change within it. She
seems to view ADR as a good idea gone awry, and neglects to
explore the dynamics that necessitate this Rinformalism.S There is
certainly room for her to be more inquisitive; has the alternatives
movement Rturned awayS from political struggle, or has the state
turned it away? It is not clear how she would like to see the situation
rectified, but she appears to favor a politicization of legal activity on
behalf of lower-income people. Perhaps this would not be a bad
development. Placing cogent, class-based demands on the judicial
resource could serve to stress the system further and clarify its
contradictions.
	For Hofrichter, of course, ADR is itself a contradiction in that
its forms seem autonomous but must remain beholden to the
legitimating sufferance of the state. It is unclear to what extent
Hofrichter is critical of the state qua state, or sympathetic to true
autonomy for social-ordering tasks. He makes it clear, though, that
capital is in an awkward position with ADR, as it might contain the
seeds of a credible threat to the legitimacy of its use as social control.
	Law and the state obviously predate capitalism by a few
centuries, so their features are not always imputable from capitalist
economics. Capital restructures or subsumes features of both as it
encounters the need. The law, we are told, is an objective means
whereby individuals can resolve their disputes, and this idea is still
prevalent and valid in the minds of most people. Capital, on the other
hand, needs the order-maintenance capacity of the state and its legal
apparatus to protect itself from the reality of the unstable economic
environment that it creates. Role differentiation
(formalism/functionalism) resolves this impasse. Subsumption is
effected by relegating dispute resolution tasks to various informal
processes (labor arbitration and other ADR forms, while not
specifically discussed here, are nevertheless unifiable under this
analysis) and by consolidating the role of the courts as the means for
processing actual enemies of the state. In short, private disputes are
farmed out to non-court agencies and the court itself becomes more
and more of a cop shop.
	Is that bad? A fair question. One would certainly think so,
arguing from a liberal perspective that the state's job is to help resolve
problems and not just contain them. More productively, one could
view functionalism/informalism both as an opportunity to create a
basis for community consciousness and as a chance to develop
resistance-minded social formations that could lead to more lasting
change.
	The anarchist critique of objective authority parallels the
primatologists' descriptions of hierarchical order-maintenance.
Bankowski does more than simply underscore the realization that
instruments of the state are ultimately instruments of the class that
operates the state. He declares that law's contractualized social order
would be unacceptable even if it could exist. The crux of the anarchist
attack on law is, quite simply, Rwho wants to live in a world where it
doesn't matter if you are good?" Legal linkage has an insidious
implication for the integrity of informal processes. The deprivation of
the disputants' agency threatens the original self-ordering premise and
leaves personal responsibility for moral choice unfulfilled. This raises
suspicion as to the true ownership of the agreements reached. 
	de Waal's evidence on the extent of peacemaking behavior in
stateless and lawless social formations does not provide us with all we
need to know, but it does effectively put the lie to the Hobbesian "war
of all against all" and serves to undermine the so-called "social
contract" which law is constantly citing as its rationale for unification
through subordination. At present, one cannot generalize intelligently
about the possibilities for human conflict resolution which might
come from the type of further study advocated by de Waal. Hopefully
the emancipatory trappings of ADR will help set a direction for truly
productive inquiry. 
	The social-ordering practices which come forth from
revolutionary, conflict-resolution, and anthropo-primatological
research will probably not be classed as ADR. We should hope not.
So long as Alternative Dispute Resolution retains the status of a proper
noun, or worse, an acronym, it mocks the meaning of the three
English words. Properly speaking, formal law itself is an alternative.
Informal practices, as presently constituted in "ADR," not only are
susceptible to the social-control criticism, but must continue to be as
long as they remain creatures of the state, as long as they lack positive
definition rooted in self-ordering autonomous communities.
	


Bankowski, Zenon 
		An Anarchist Critique of Law Exemplified
		 Legality, Ideology, and the  State Sugarman, David (ed)
		London; New York: Academic Press, 1983

Harrington, Christine B.
		 Shadow Justice: the Ideology and Institutionalization of Alternatives to Court
		Westport, CN: Greenwood Press, 1985

Hofrichter, Richard
		Neighborhood Justice in Capitalist Society: the Expansion of the Informal State
		New York: Greenwood Press, 1987

Scimecca, Joseph
		Conflict Resolution and a Critique of RADRS
		 Criminology as Peacemaking Pepinsky, Harold (ed)
		Bloomington, IN Indiana University Press, 1991

Tifft, Larry and Sullivan, Dennis
		The Struggle to be Human: Crime, Criminology, and Anarchism
		Sanday, Scotland: Cienfuegos Press, 1980

de Waal, Frans B. M.
		Peacemaking Among Primates
		Cambridge, MA Harvard University Press, 1989

