Ethnographic data suggest that the mediator role transcends that of the neutral third-party intervener described in the literature. The mediator becomes part of the mediated negotiation process, at times separate from the parties, aligned with the parties or in opposition to the parties. This is analysed in this article in relation to concepts of neutrality and procedural justice, two concepts much discussed in the mediation literature, often recognised as core features of the mediation process. The justice consciousness of the parties to the process is also explored through ethnographic data for what it reveals about concepts of justice from the parties’ perspective. The article concludes by challenging the dictum of the mediation literature that the process offers procedural justice to its participants.
This article explores legal consciousness in contemporary British theatre. It is concerned with the messages conveyed about law in society as experienced through participant-observation and textual analysis. The interpretation of meaning will take place within the legal consciousness framework of collective dissent developed by Halliday and Morgan. Using this framework, this article will show that dissent is a reoccurring theme in these performances, with the legitimacy of state law under challenge. Alternative visions of law are pluralistic in nature. By applying a collective dissent narrative to this study, the article tests and further develops collective dissent as an analytical tool for examining legal consciousness for cultural legal studies. Through this framework, it also advances the study of theatrical performance for cultural legal studies in terms of what dramaturgic images, observational and textual, say about the relationship between law and society; specifically, to determine what theatrical performance of British contemporary theatre says about the law in this snapshot of time and place.
The attainment of justice through a private dispute-resolution process, such as the mediation process, is an elusive objective. With the prominent place mediation has been given in civil justice, debates about the ability of mediation to deliver substantive justice are relevant, particularly when proponents of the process argue that mediation offers some form of justice to its participants, while critics argue that it provides no justice. This paper explores the issue of justice in the private dispute-resolution process of mediation and its ability to deliver a substantive form of justice (rather than procedural or popular justice, which is often seen as the type of justice, if any, that is provided by mediation). It does so through an analysis of ethnographic data of the mediation process using Amartya Sen's justice framework set out inThe Idea of Justice.
Abstract:In recent literature on the restitution of Nazi-looted art, reference can be found to notions of morality as impetus for the return of cultural property to claimants who, although they may be able to evidence their ownership to an object, are stymied by onerous legal frameworks. With such claims, it is often the recognition of a moral entitlement or obligation that leads to a resolution regarding restitution. This conflation of morality with justice seems to have taken hold, in particular, with the articulation of the Washington Principles in 1998, which call on nation-states to create alternative dispute resolution processes for the fair and just resolution of Nazi-looted art claims. In determining what is fair and just in the resolution of these looted art claims, regard is often made to the strength of a party’s moral claim to the property. The exercise of notions of morality is often seen as resulting in a fair and just outcome, linking morality with the fair and just solution of such cultural property claims. But, it is justice on what ground? Is morality the proper yardstick by which to determine whether outcomes of restitution claims are just and fair? This article explores the use of morality and offers an argument that it should not be the basis on which entitlement should be determined, primarily due to its amorphous nature and undefined relationship to justice. This is further supported by a claimant narrative suggesting that concepts of reconciliation and procedural fairness are of concern to claimants rather than recognition of moral entitlement. Having regard to these concerns, the article recognizes a need for a new conceptual framework from which to assess the delivery of the just and fair solution and that reflects these concerns.
Equal Justice: Fair Legal Systems in an Unfair World begins with a reference to Socrates who went to his death in the belief of the integrity of legal procedures carried out by legal institutions as opposed to a belief in the integrity of and obedience to the laws that condemned him (1). Legal institutions and access to them form the heart of this book. Laws are not its concern; access to them is. It speaks of the need for a 'just justice system'providing equal access for all citizens, primarily through an exploration of the impact of wealth in creating injustices, and the resulting barriers to such access. It is not an ideal form of justice that is sought, but one which reduces injustice. Equal Justice offers a timely and fresh take on injustices in the legal system.For Wilmot-Smith, economic disparity is a root cause of injustice. Wealth's power needs to be neutralised. Seeing legal resources as a public good, he posits that the distribution of legal resources should occur in a way that allocates the benefits and burdens of the legal system fairly across the citizenry -not a condition in evidence currently. A fair distribution procedure through state intervention is necessary. This involves two aspects of system design which are considered in Equal Justice: the equal distribution of legal resources and the primacy of the public forum for claims resolution.Controversial positions are taken in Equal Justice. It proposes the state should intervene in the market distribution of legal resources. It challenges the efficacy of private dispute resolution processes (primarily arbitration), arguing the state should not support such processes. It advocates for general taxation to fund its proposals. While the proposals set out in the book may challenge the institutional establishment, the points advanced are made in a way that broadens perspectives on justice deficiencies of the legal system. Bringing the impact of wealth into the conversation yields timely and astute comments on the (in)ability of citizens to take their disputes to a forum which will dispense justice. Arguments are made in a deceptively simplistic manner. Discussion is couched in philosophical terms. This philosophical approach to injustices of the legal system makes the book unique and a significant addition to scholarship.The chapters systematically build the argument. Chapters 1 and 2 set the stage. The nature of the legal system, its purpose and relationship to justice are explored. The right to equal liberty must mean equal protection of those liberties through a just legal system (36). Equal justice, it is argued, requires sharing the institutional benefits and burdens equally among citizens which depends on an equal distribution of legal resources (25)(26) 33). Market distribution of legal resources and wealth's contribution to its unequal distribution are explored in
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