New Configurations of Justice and Services for the Vulnerable: Panacea or Panegyric?

Abstract

Accessible justice (tribunals), integrated justice (drug courts), community justice (sentencing circles or “conferencing”), group justice (ulysses agreements), and contractual justice (private “settlements”) are new ways of tackling old problems; often ones involving vulnerable groups. Vulnerable groups pose particular challenges about whether the state should intervene, in what ways, and whether through the legal, medical, or welfare systems. New programs, with new objectives and new sectoral boundaries, necessarily raise new questions. Questions about ethical foundations. Questions about implications for “citizenship”, or for the rule of law, or for distributional equity. And questions about program “effectiveness”. This paper identifies common themes and patterns in the reforms, including “active” rather than passive adjudication, judicial commitment to realisation of identified goals, intersectoral collaboration, community in-put or control, and use of privatised “contractualist” metaphors. It considers the extent to which this reflects globalisation (harmonisation with civil law experience), or is emblematic of “postmodernism” (better attuning programs to diversity and fluidity), or other theoretical positions (such as contractualism and republican citizenship). It is argued that these experiments should be cautiously welcomed, subject to rigorous assessment of their merits, since their over-enthusiastic adoption risks breaches of fundamental ethical, civil citizenship, or medico-legal precepts, and may allow theory to outstrip its evidentiary base.