Complexity and reconstruction as contemporary legal thought: Law-conflict interactions and judicial work

INTRODUCTION: LEGAL SCHOOLS OF THOUGHT, CONFLICT SCHOOLS OF PRACTICE One of the marks of contemporary legal thought is a proliferation of legal reform projects that offer institutional alternatives to conventional top-down, rights-based legal practices. In the criminal law arena, we have therapeutic jurisprudence, including problem-solving courts, and restorative justice. The older field of alternative dispute resolution (ADR) continues to play an important – and now often globalizing – role in the realm of private law. The socialization of legal conflicts as practiced in contemporary movements carries a new ideal of law which is in relationship with a new context – that of the conflict – and entails particular nuances given to detailed case-by-case analysis. This “conflict perspective” crosses the boundaries of civil and criminal law and transcends divides of common law and continental systems. Another mark of contemporary legal thought is the proliferation of critical and reconstructive schools of thought that change the formal attributes of legal rules. Projects such as legal realism, The legal process school of law, and the law and economics movement, as well as public law scholars, offer challenges for the possibility of a pure application of legal rules without reference to policy, politics or economics, and offer new ways for understanding the judge's role when making decisions in legal conflicts. The grand narratives that inspire the critique of formalism are often the same which inspire evolving perspectives of conflicts (Alberstein 2016). These all reflect Western critiques of liberalism, and their use in judges’ activity is reconstructive and usually implicit. The message these two parallel developments may suggest for contemporary legal thought and practice is that it occasionally involves capturing critical perspectives about legal formalism, all while operating in the shadow of capturing varying social reconstructive perspectives about conflicts. This chapter portrays judicial decision making and legal administration as complex critical praxis that considers some imperative ideas of law seriously, and considers some aspects of the constructive processing of social conflicts as relevant for legal decisions. This understanding of contemporary administration of justice as caught between both legal and conflict considerations, as well as adopting critical theories and working with them, is innovative in terms of conceptualizing a new utopia for the role of law in society.