An ethical justification for the theory of Law as Peacemaking

• Jurisdiction: South Africa
• Author: Robert E Mackay
• Citation: 2007 Acta Juridica 73
• Pages: 73-90
• Published date: 15 August 2019
• Date: 15 August 2019

An ethical justif‌ication for the theory of

Law as Peacemaking

ROBERT E MACKAY*

Perth College – UHI Millennium Institute

I INTRODUCTION

This paper states the theory of Law as Peacemaking. It describes some

of the methodological issues associated with developing the theory, it

gives reasons for the need for such a theory and f‌inally attempts to

provide a justif‌ication for it in terms of ethical theory.

This endeavour is a result of a continuously evolving study of

theoretical justif‌ications for restorative justice. This was initiated by an

assessment, derived from developing a victim-offender mediation pro-

gramme, that it was necessary to convince lawyers, who have been the

main gate keepers for the introduction of restorative justice, to support

restorative justice developments in the criminal justice system.

1

The

project required engagement with contemporary ethical theories that are

relevant to the theorisation of law. Two of the strongest theoretical

traditions are the neo-Aristotelian natural law school represented in the

Anglophone tradition by John Finnis and Alasdair MacIntyre, and the

neo-Kantian ethical tradition represented by Juergen Habermas. The

project took as its starting point the axiom that law has to be justif‌ied by

ethical propositions external to law itself. However, as the project

developed, particularly within the ‘school’ of the COST Action A21

‘Restorative Justice Developments in Europe’,

2

it became clear that the

practice of restorative justice was itself evolving to a point at which it

became necessary to redef‌ine the f‌ield. This has presented a new

challenge because restorative practice, as it is spoken of, is not one, but

several entities linked together with a common vision, but practically

diverse. It thus became necessary to def‌ine a new f‌ield, namely law as

* MA (Oxon) MSc (Edin); Honorary Research Fellow Perth College UHI Millennium

Institute.

1

R E Mackay ‘Restitution and Ethics: AnAristotelian Approach’ in H Messmer and H–U

Otto (eds) Restorative Justice on Trial (1992) 569; R E Mackay ‘A Humanist Foundation for

Restitution’ (1993) 6(3) Ratio Juris 324; R E Mackay ‘Restorative Justice: Natural Law,

Community and Ideal Speech’ inA J Arnaud and P Koller (eds) Challenges to Law at the End of

the 20th Century vol Law, Justice and Culture(1998) 99; R E Mackay ‘Ethics and Good Practice

in Restorative Justice’ in The European Forum for Victim-Offender Mediation and

Restorative Justice (eds) Making Restorative Justice Work(2000) 49.

2

The European Co-operation in the Field of Scientif‌ic and TechnicalResearch (COST) is

an inter-governmental framework supporting collaboration between researchers in Europe.

Action A21 being in 2002 and off‌icially ended in 2006.

73

2007 Acta Juridica 73

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peacemaking,

3

and adapt the arguments of justif‌ication to this f‌ield. This

paper is a sketch for that new step.

II LAWAS PEACEMAKING – THESIS AND

METHODOLOGICAL ISSUES

(1) Thesis

The basic purpose of law is the creation and maintenance of the

conditions of peaceful life between citizens.

(2) Methodological issues

This thesis is advanced as a general theory for law, and not simply as a

means of making sense of certain problematics arising from the

interaction between restorative justice, its practices and objectives, and

the legal system. However, the process of developing the theory follows

an inductive path, which was suggested by these problematics. An

analysis of the conceptual world of restorative justice and its relationship

with law poses a number of questions. As will be seen below, the analysis

does not lead us towards a unif‌ied theory of restorative justice, rather it

demonstrates the limited utility of restorative justice for making sense

either of the aims of the criminal justice-penal archipelago (hereafter ‘the

archipelago’),

4

or of the legal system as a whole. Restorative justice, in all

its forms, collectively poses challenges, but it does not change the f‌ield of

law. It will never be possible to speak coherently of a general ‘restorative

theory of law’ because, on any def‌inition one could choose, it could only

3

R E Mackay ‘Beyond the Concept of Restorative Justice – Law as Peacemaking’ in M

Bosnjak et al (eds) Images of Restorative Justice Theory (forthcoming).

4

The criminal justice-penal archipelago is a metaphor coined to capture a number of

points. The agencies of the criminal justice and penal ‘system’ are connected, usually by

statutory arrangements, but they each have their own separate aims, objectives and culture. So,

to speak of a coherent criminal justice-penal system is inaccurate. They are to some extent, as

Luhmann would say, ‘autopoietic’; cf N Luhmann (trans by KA Ziegert ) Law as a Social System

(2004). These agencies are not only connected by function, their relations are also governed by

a system of exchange; cf B Malinowski Argonauts of the Western Pacif‌ic: an account of native

enterprise and adventure in the archipelagoes of Melanesian New Guinea (1922). In the case of the

criminal justice-penal archipelago, this exchange is between people (judged or subject to

judgement of criminality), and documents (charges, indictments, warrants, sentences,

discharges etc) In the course of their migration from one island to the other, and as a result of

the authority conveyed by the bill of exchange, the people traded are subjected, like

commodities to various processes: arrest; trial; sanctions such as incarceration and rehabilitative

measures; and even restorative processes. Of course, the shadow of Solzhenitsyn’s Gulag looms

in this metaphor, but sometimes the Gogol’simage of the sale of ‘Dead Souls’ seems as apposite.

The metaphor also alludes to the suggestion that the archipelago is part of the greater continent

of Law. Restorative justice could be seen as an atoll that has emergedfrom the sea between the

islands of the archipelago as a result of some seismic activity, or possibly it has emerged on the

boundary between the continents of Law and Society.

74 RESTORATIVE JUSTICE:POLITICS,POLICIES AND PROSPECTS

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