The Antithesis of Conflicts as Property

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Nils Christie proposes the concept of “Conflicts as Property” in his article of the same name, where he criticizes the theft of conflict from the involved parties by their professional representatives and the legal system. Christie claims that henceforth conflict becomes the property of others aside from the actual parties to the conflicts, which leads to conflict disappearing from society and thereby debilitating the development of society.[footnoteRef:1] Contrarily, the professionalization of litigators does not distance the involved parties from the conflict, nor does it reduce the amount of conflicts within an industrialized society, but it establishes a neutral third-party to impartially present the facts of the case pertinent to the law being raised in question. 

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The Truths and Flaws behind Christie’s “Distancing”

Christie begins his article by defining “conflicts as property” as a process amplified by criminology to withdraw the conflict from the concerned parties and make them the property of others.1 Thus, Christie claims that the establishment of lawyers as legal representatives of the involved parties essentially makes the conflict the property of the lawyers and no longer the property of the clients. Christie’s view of conflict as a “property” inherently assumes an entitlement by the parties to the conflict they were involved in. While there may be some truth to that, as in often cases victims of a conflict tend to seek compensation from the perpetrators, Christie fails to recognize that social standards and traditions also have an entitlement to resolve the conflict as it sets the precedent for future incidents that may take place between other members of that society.

Furthermore, Christie describes the legal system as an institution that alienates and distances the common people from the conflicts in a society. He outlines four elements that contribute to the distancing of Courts from society, with the first element being the physical location of the Court, which is typically in the “administrative center of the towns, outside the territories of ordinary people”[footnoteRef:2]. Through this, Christie claims that when courts are not situated nearby the places regular people frequent, it automatically distances them from the legal process as they do not encounter legal proceedings in their day-to-day routines. In addition to his observation of Scandinavian courts, Christie cites Peter Scott’s (1959) study of juvenile court, where young people were found to be uninformed about court proceedings and officials.2 [2: Stephen Tasson et al., Introduction to Legal Studies, 1st ed., vol. 1 (Concord, ON: Captus Press Inc., 2018), 10]

In order to rectify this, one would assume that it is necessary for young people or members of the community as a whole to frequently be present in court, but that would be impossible in a large and industrialized society; Courts have a limited capacity as to the amount of people they can carry, with priority given to officials and parties to the case. Regular people have duties and responsibilities to attend to, such as their own jobs and education, giving them less time to attend court matters especially since court operates during the same work hours as almost everybody else. Would Christie then propose to build more courts and have them situated next to each community in a city, increasing the need for court officials? Or would he propose for people to be able to take time off to attend a case they are interested in, while hindering the operations of industry necessary to the development of society? Christie is correct in his assertion that most parties to conflict are uneducated when it comes to legal proceedings and the various role of court officials, but that is precisely why professional lawyers exist; to guide and educate their clients about the legal process.

Additionally, the second element which Christie argues plays a role in distancing people from the courts is the complexity of the court’s architectural structure. Christie’s claim is that since only court officials are able to navigate the building with efficiency, it becomes a burden for the common people and the non-state lawyers or representatives to regularly attend court, which makes it feel like a strenuous task to them and asserts the dominance of court officials on the court.[footnoteRef:3] While Christie’s claim is not entirely incorrect, he manages to neglect the fact that there are officials designated or capable to help people navigate the court. Likewise, the professionalization of lawyers allows them to familiarize themselves with the structure of the building as the court officials have, since they too will regularly be attending court which also makes them capable of guiding their clients and other court visitors around the building. [3: Stephen Tasson et al., Introduction to Legal Studies, 1st ed., vol. 1 (Concord, ON: Captus Press Inc., 2018), 10-11]

Moreover, the third element which Christie contends is alienating to the parties involved in the conflict is the handling of the case by designated legal representatives and judges, which makes them feel like they cannot participate or have no role to play in the resolution of their conflict. Christie’s contention is flawed as while the parties to the conflict do not perform any of the litigation themselves, the sole act of reporting the conflict to the legal authorities with the power to manage and resolve them is their form of participation in the case. By doing so, the parties to the conflict declare that they are unable to resolve the conflict alone without the use of mediators or neutral third parties well-versed in the law or societal customs and convention, then they provide their accounts of the details of the event and authorize the designated officials to administer the case. Additionally, this claim portrays legal professionals and parties to the conflict as antagonists with opposing interests, when in reality they share the common social interest of rectification.

Finally, the fourth element which Christie believes is responsible for distancing the victim of the conflict from the legal proceeding is what he claims to be a “double victimization” of the party afflicted. The first victimization is done by the perpetrator of the conflict and is usually attributed to physical, emotional, and psychological harm, and financial loss. The second victimization is done by the state, which acts as the representatives of the victim in a criminal proceeding. He asserts that the intervention of the state in place of the victim denies them of their right to fully participate “in what might have been one of the more important ritual encounters in life”.[footnoteRef:4] [4: Stephen Tasson et al., Introduction to Legal Studies, 1st ed., vol. 1 (Concord, ON: Captus Press Inc., 2018), 11]

It is true that the victims in a criminal trial have no active part to play in the adjudication of their case, especially when they have been murdered, but it is in Christie’s own distinction between civil conflicts and criminal conflicts lies the reason for the state’s endeavor to represent the victim; “The key element in a criminal proceeding is that the proceeding is converted from something between the concrete parties and into a conflict between one of the parties and the State.”4 Criminal law is established by the state to regulate the affairs of its citizens and ensure no gross acts or violations are committed by them. Those who do not comply with the state’s criminal laws are essentially transgressing against the state, which is based on the collective consciousness of the people, thus the state should also be viewed as victims of the conflict. Additionally, one could argue that the state could be acting as representative of victims in order to advance their own interests, such as conflict reduction, but the state is responsible for protecting its citizens and by representing them in criminal proceedings, it could also be argued that it is fulfilling one of its fundamental duties; To shoulder the burden off of the afflicted victim, not to “distance” them.

The Universal Principles of Alternative Approaches

As opposed to handing away conflicts to become the properties of the legal system and professional lawyers (or even criminologists), Christie poses the Tanzanian case as the ideal model of arbitration or conflict resolution. The case basically entails the separation of two betrotheds, in which the woman ends her engagement to the man, who is asking for the compensation of all the investments he made during their engagement. Christie identifies five central elements that make this method of arbitration the most effective as to not diminish the importance of conflict in a society; 1. The parties to the conflict were responsible for representing themselves; 2. Associates of the parties were present and contributing to the arguments of their respective parties; 3. The community of the parties were present and asking questions pertinent to the events of the case; 4. The judges were present but not active in the adjudication of the case, the community was; 5. There was no need for reporters as every member of the community was present.[footnoteRef:5] [5: Stephen Tasson et al., Introduction to Legal Studies, 1st ed., vol. 1 (Concord, ON: Captus Press Inc., 2018), 10]

Christie intends for people to adapt this form of arbitration as it provides the involved parties with the complete opportunity to participate in the resolution of the conflict. It also strengthens social ideals and community ties as everyone in present in the process, thus increasing knowledge of customs and conventions. To Christie, this case exemplifies what it means to not be distanced and to retain control over one’s own conflict, but one could also argue these same elements are present in today’s legal system. For starters, the parties involved in the conflict are the ones who bring forth the conflict to arbitration and not anyone else; even if arbitration in criminal proceedings is involuntary, the state has no way to know of the conflict without the parties to the conflict declaring it to the state.

Secondly, their associates such as their family and friends are allowed to be present throughout the whole process, and even asked to participate as witnesses if they had direct or indirect involvement of the case that can add more information or context to the details of the conflict. This also ensures that no biased or distorted information is presented in the parties’ arguments. Thirdly, the community of the parties are also allowed to be present and even asked to participate as jurors should the parties to the party decide to proceed with a jury trial. They could also be involved in the process by voicing their opinions through social media or even demanding certain outcomes through protests or petitions.

Fourthly, the role judges play in the arbitration of conflicts is no different from the role members of the community played in the Tanzanian case. As a matter of fact, judges hardly ask any questions in today’s legal system as it is mostly the lawyers and legal enforcement agents who question the witnesses and parties to the conflict. The only difference is that judges are well-educated in the laws of the state, which is necessary for a fair and impartial verdict, whereas members of a society can favor one party over the other. Finally, the role reporters play in informing society about court trials is essential in an industrialized society as previously stated, people are preoccupied with their duties and responsibilities and are also not as personally invested in the lives of each other which makes it difficult for them to be present.

In conclusion, conflict should not be viewed as property like Christie suggests, since this perspective dismisses the various entitlements other parties aside from the involved parties have to the conflict. The current legal system and the various legal actors present are not meant to distance common people from the law, but instead guide and educate them as they otherwise would not be able to navigate it on their own due to the increase in complexity that comes with further industrialization and clashing interests.

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