individual responsibility over collective responsibility. In New Guinea, if my male cousin is deserted by his wife, I would be angrily demanding from the wife’s clan the refund of the portion of her bride-price that I paid to acquire her for my cousin; as an American, I am glad not to share responsibility for the success of my cousins’ marriages.
A promising approach towards bringing emotional closure in some cases, to both a criminal not condemned to death and to the surviving victim or the dead victim’s closest relative, is a program called restorative justice. It views a crime as an offense against the victim or community as well as against the state; it brings the criminal and victim together to talk directly (provided that both are willing to do so), rather than keeping them apart and having lawyers speak for them; and it encourages criminals to accept responsibility, and victims to say how they have been affected, rather than discouraging those expressions or providing little opportunity for them. The criminal and the victim (or the victim’s relative) meet in the presence of a trained mediator, who lays down ground rules such as no interrupting and no abusive language. The victim and the criminal sit face-to-face, look each other in the eye, and take turns relating to each other their life stories, their feelings, their motives, and the crime’s effect on their subsequent lives. The criminal gets a flesh-and-blood view of the harm that he has caused; the victim sees the criminal as a human with a history and motives, rather than as an incomprehensible monster; and the criminal may come to connect the dots in his own history, and to understand what set him on a criminal path.
For instance, one such encounter in California brought together a 41-year-old widow, Patty O’Reilly, and her sister Mary, with a 49-year-old prisoner, Mike Albertson. Mike was serving a 14-year prison term for killing Patty’s husband Danny two and a half years previously, by striking Danny from behind with Mike’s truck while Danny was bicycling. Over the course of four hours, Patty told Mike her initial feelings of hatred towards him, the details of her husband’s last words to her, how she and her two young daughters were brought the news of Danny’s death by a sheriff’s deputy, and how she was still reminded every day of Danny by such seeming trivia as hearing a song on the radio or seeing a bicyclist. Mike told Patty his life story of sexual abuse by his father, drug addiction, a broken back, running out of painkiller pills on the night of the killing, phoning and being rejected by his girlfriend, setting off drunk in his truck to check himself in at a hospital, seeing a bicyclist—and confessing that he may have hit Danny on purpose, in rage against his father, who had repeatedly raped him, and against his mother, who hadn’t stopped it. At the end of the four hours, Patty summed up the process by saying, “Forgiving is hard, but not forgiving is harder.” Over the next week she felt unburdened, empowered, and strong from having watched across a table her husband’s killer see the devastation that he had caused. Thereafter, Mike felt alternately drained, depressed, and uplifted by Patty’s willingness to meet and forgive him. Mike kept on his bedside table a card that Patty had brought him from her daughter Siobhan: “Dear Mr. Albertson, Today is the 16th of August and I will be 10 years old on September first. I just want to make sure you know that I forgive you. I do still miss my Dad, I think that’s a life-long thing. I hope you’re feeling OK. Bye bye, Siobhan.”
Such restorative justice programs have been operating for up to 20 years in Australia, Canada, New Zealand, the United Kingdom, and various American states. There is still much experimentation going on—e.g., as to whether the meeting should involve just the criminal and the victim or should also involve relatives, friends, and teachers; whether the meeting takes place at an early stage (soon after arrest) or at a late stage (in prison, as in the case of Patty and Mike); and whether there is an effort at restitution by the criminal to the victim. There are many anecdotal accounts of outcomes, and some control tests that randomly assign criminals to one of several alternative programs or else to a control group with no such programs, and that then evaluate outcomes statistically. Favorable results reported in cumulative statistical analyses of cases by some programs include lower rates of further offenses being committed by the criminal, less severe offenses if any are committed, a decrease in the victim’s feelings of anger and fear, and an increase in the victim’s feelings of safety and closure. Not surprisingly, better results are obtained in cases in which the criminal is willing to meet the victim, actively participates in the meeting, and realizes the harm that he has done, than in cases in which the criminal unwillingly participates in a court-mandated meeting.
Naturally, restorative justice is not a panacea for all criminals and victims. It requires a trained facilitator. Some criminals do not feel remorse, and some victims would feel traumatized rather than helped by re-living the crime in the criminal’s presence. Restorative justice is at best an adjunct to, not a substitute for, our criminal justice system. But it holds promise.
Advantages and their price
What conclusions can we draw from these comparisons of dispute resolution in states and in small-scale societies? On the one hand, in this area of dispute resolution as in the other areas to be discussed in succeeding chapters of this book, we should not naively idealize small-scale societies, view them as uniformly admirable, overstate their advantages, and castigate state government as at best a necessary evil. On the other hand, many small-scale societies do possess some features that we could profitably incorporate into our state societies.
At the outset, let me prevent misunderstanding and reiterate that dispute resolution even within modern industrial states already contains areas that utilize tribal-like dispute resolution mechanisms. When we have a dispute with a merchant, most of us don’t immediately hire a lawyer or sue; we begin by discussing and negotiating with the merchant, perhaps even asking a friend to contact the merchant on our behalf if we feel too angry or helpless ourselves. I already mentioned the many professions and groups within industrial societies that have their own routine procedures for dispute resolution. In rural areas and other small enclaves where everyone knows everyone else and expects relationships to be life-long, motivation and pressure to settle disputes informally are strong. Even when we do resort to lawyers, some disputants expecting an on-going relationship—such as some divorcing parents of children, or business partners or counterparts—end up using the lawyers to reestablish a non- hostile relationship. Many states besides Papua New Guinea are sufficiently new or weak that much of the society continues to function in its traditional ways.
With that as background, let’s now recognize three inherent advantages of state justice when it functions effectively. First and foremost, a fundamental problem of virtually all small-scale societies is that, because they lack a central political authority exerting a monopoly of retaliatory force, they are unable to prevent recalcitrant members from injuring other members, and also unable to prevent aggrieved members from taking matters into their own hands and seeking to achieve their goals by violence. But violence invites counter-violence. As we shall see in the next two chapters, most small-scale societies thereby become trapped in cycles of violence and warfare. State governments and strong chiefdoms render a huge service by breaking those cycles and asserting a monopoly of force. Of course, I don’t claim that any state is completely successful at curbing violence, and I acknowledge that states themselves to varying degrees employ violence against their citizens. Instead, I note that, the more effective the control exercised by the state, the more limited the non-state violence.
That’s an inherent advantage of state government, and a major reason why large societies in which strangers regularly encounter each other have tended to evolve strong chiefs and then state government. Whenever we find ourselves inclined to admire dispute resolution in small-scale societies, we have to remind ourselves that it consists of two prongs, of which one prong is admirable peaceful negotiation and the other prong is regrettable violence and war. State dispute resolution also has its own two prongs of which one is peaceful negotiation, but the state’s confrontational second prong is merely a trial. Even the most horrible trial is preferable to a civil war or a cycle of revenge murders. That fact may make members of small-scale societies more willing than members of state societies to settle their private disputes by negotiation, and to focus those negotiations on emotional balance and the restoration of relationships rather than on vindicating rights.
A second advantage or potential advantage of state-administered justice over do-it-yourself traditional justice involves power relationships. A disputant in a small-scale society needs to have allies if his bargaining position is to be credible, and if he really wants to collect those cattle that the Nuer leopard-skin chief has proposed as appropriate compensation. This reminds me of an influential article about Western state justice, entitled “Bargaining in the Shadow of the Law”—meaning that mediation in states takes place with both parties aware that, if mediation fails, the dispute will be settled in court by the application of laws. By the same token, compensation negotiations in small-scale societies take place “in the shadow of war”—meaning that both parties know that, if the negotiation is unsuccessful, the alternative is war or violence. That knowledge creates a non-level playing field in small-scale societies and gives a strong bargaining advantage to the party expected to be able to marshal more
