Les modes alternatifs de résolution des conflits
Writing legal history, just like history, depends on the sources we read and the questions we ask. If we ask old questions to the same noble sources, we shall have old answers and the narrative of history will remain as we found it, an image, admittedly respectable, made more than a century ago, whe...
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| Format: | Article |
| Language: | fra |
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Association Clio et Themis
2012-06-01
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| Series: | Clio@Themis |
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| Online Access: | https://journals.openedition.org/cliothemis/1746 |
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| Summary: | Writing legal history, just like history, depends on the sources we read and the questions we ask. If we ask old questions to the same noble sources, we shall have old answers and the narrative of history will remain as we found it, an image, admittedly respectable, made more than a century ago, when the white man readily bore his burden. If we want another outlook, we must, as said Marcel Detienne, “venture to compare the incomparable”. We must not be contented with a mere reflection of our commonplaces, but seek the dim image that may help us to understand our nowadays. Global history does not only mean trespassing geographical or political boundaries and exploring every areas of human activity and thoughts, but also trying to overcome our mental framework.The concept of “restorative justice” was introduced by anthropologists : in the small communities they looked at, – the face-to-face groups of exotic societies – it was indeed the main way of resolving conflicts and it had been so for centuries. Transferring and spreading ADR as a model for the time being is no simple matter and that explains the uneven acceptance of alternative justice in modern societies. Because it relies on mediation and consensus, alternative justice involves a group. It means that this kind of justice can exist only if there is a strong solidarity which ensures a fair resolution of the dispute. Therefore the question may be asked : is it possible to enforce alternative justice in societies where communities are weak, and where the State has long claimed to be sole guardian of the citizens’ rights ?Anthropology inspired historians as well as lawyers. Could it be that our ancient societies do share elements with exotic societies ? Could it be that in our european past, beside the trial, existed other ways to settle a dispute ? As for Roman antiquity, considering the possibility of alternative justice may seem unorthodox. Rome created res publica and ius, State and the model of State justice. But was this model really and completely implemented in all the provinces of the Roman Empire ? One may question if the disputes were everywhere resolved according to this law, that is in court of the provincial governor, or for the lesser cases, in the cities’ courts. In Great-Britain, a documentation, one could call “alternative”, gives a negative answer.In conclusion, we can say that because the conflict belongs to the parties, it cannot always be solved by a judgment ; it needs meetings, words, rituals and divine’s verdict, all that cannot be captured by any law. |
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| ISSN: | 2105-0929 |