Community Relations Council

Doing justice in a society in transition: challenges, opportunities and steps

Duncan Morrow

Community Relations Council

Delivered at the Stakeholder Conference, Criminal Justice Inspectorate, Hilton Hotel, Belfast, 19 January 2005.

Surprisingly, it is not conflict as such which marks Northern Ireland out as distinctive.  There have been and are conflicts elsewhere which claimed more lives or which did even more lasting damage.  Nor is Northern Ireland particularly remarkable for the level of killing or the amount of hatred which fuelled conflict and flowed from it.  What makes Northern Ireland of particular interest to social scientists is that a bitter and apparently insoluble inter-communal conflict took place in a country with western European standards of material living. 

Indeed, in many ways what happened in this corner of Ireland exhausts many of the normal 'reasons' put forward for violence: we are not, on a global scale, poor.  Sure, we have our poor, but they are a rich poor, just as we are a rich middle or a rich-rich.  If everyone has to become as rich as we are before conflict can no longer be justified, the world is in one hell of a mess.  Neither are we ill-educated: our rates of qualification and literacy are distinctly western. Nor do we suffer from exclusion from the global language or the global electronic evolution or the global bias against people who do not have a white skin.  Finally, we do not suffer from a lack of exposure to the rules and procedures of liberal democracy and we are not strangers to private ownership and the rules of supply and demand.  The north of Ireland is a pebble in a pond between western Europe an north America, the cradle of democracy and free enterprise and our people or people have made their contribution to the evolution of both.

Northern Ireland is interesting because it suggests that it is not merely a question of things – objects, which can be measured and doled out – or of quantities but a question of relationships – and the quality of relationships between competing and often violent claims to power which is ultimately decisive in conflict.  No amount of quantity of goods or treats or resources which does not pay attention to the quality of what is done with them will do the business in the long run. Only a concern for the qualities of trust, of a presumption of a lack of threat, of a presumption that the welfare of both myself and the other is a legitimate concern of our common institutions can take us along the road to peace. For my money, the prosperity model of peace, which suggest that peace will be possible when we all become millionaires but not before, is running out of road.  Nor is the social inclusion model, which suggests that the particular experience of this or that specific group is sufficiently adverse in Northern Ireland to justify ongoing violence, particularly convincing. Of course we have to build a society in which the welfare and prosperity of everyone is a real and permanent concern, and in that we do not differ from anywhere else in the world.  In a context where violence begets violence rather than victory, the unavoidable political challenge is finding a way to make a future with one another rather than against each other.  The decisive political challenge is to unequivocally commit to a future in which the citizenship of the other is taken for granted and to work through the consequences of such a reversal of traditional norms for the whole of society. 

Machievelli warned that the moment of constitutional change is the most dangerous, because the opponents are vested and the supporters are disparate and weak.  And make no mistake, the move to a Northern Ireland or a North of Ireland or any jurisdiction in this territory in which the citizenship and behaviour of everyone is based on the presumption of our mutual belonging and our safety in each others hands is a radical change to the constitution of this place.  Because nearly every institution in this place has been infected by presumption of mistrust.   Normal law required emergency back up.  Peace walls made sense.  Wearing the wrong football top somehow 'asks for it'.  Large numbers of people presume, without thought, that it is normal, understandable or even desirable that people should live in distinct ghettos according to homogeneous political or religious allegiances or that violence exercised by us against them is somehow understandable and that anyone who suggests that the measure of success should be the degree to which we can work, live and play together without fear is somehow not realistic or infected with new age quackery.  The difficulty is that after years of conflict, treating our neighbours with a degree of wariness makes perfect sense, in a way that the idea of a shared future does not.

Northern Ireland has the additional challenge, that the peace is not based on the decisive victory of one side over the other.  No-one can dictate terms, we all have to come to terms.  This makes peace slow and drawn out, not a matter of a single conference.  Peace processes in which all parties lay down their arms and agree to work together into the future require an altogether different courage, consisting of choosing the unpalatable to the disastrous ( JK Galbraith) over and over again.  Victory and defeat ultimately impose a clear logic on the construction of the future. The need to share imposes the much more demanding task of constantly and repeatedly choosing to work together in the face of tempting alternatives, not merely deferring victory but choosing something else instead.  Without the incentive of 'must', the incentive is mostly 'should' or 'could' and the temptation to believe in alternatives is much more present, creating huge problems of political discipline.  Where there has been a history of violence, such a decision is never easy  politically, socially, psychologically or anthropologically, because it requires that the foe become the partner, yesterday's perpetrator to become tomorrow's partner at law.

I said that Northern Ireland had its conflict in a Western European context.  We should remember this when we judge others, because few sites of bitter and prolonged conflict have been able to call on such resources, or such a broad consensus in the neighbouring, at times competing, powers about the acceptable face of peace.  There is a tendency in Northern Ireland to bemoan the British and Irish input into Northern Ireland, from all sides.  Nonetheless, the distinctive British and Irish contribution has been to prefer partnership and containment to proxy war, and to mitigate the worst elements of Northern Ireland's conflict by money and diplomacy. 

And we need to look at the alternatives – Croatia and Serbia in Bosnia, Serbia in Kosovo, Russia in Chechnya, Greece and Turkey in Cyprus, Israel in Palestine, Israel and Syria in the Lebanon – the list goes on. 

Britain and Ireland did not resolve what happened here, and no doubt often denied their own complicity in generating our predicament, but they also mitigated and attenuated it.  Conflict in Western Europe was not ended but limited and attenuated, so that all of its madness became visible, even to most of those fighting it.  Peace walls were part of the answer, as were containment into ghettos and specific security force – population interfaces was the answer, equality and human rights law, attempts to generate power sharing and a willingness to absorb vast costs to taxpayers in both jurisdictions.  Direct Rule and intergovernmental co-operation were part of the answer.  Emergency law, was also part of the 'answer' but it never lost its exceptional and ultimately shaming nature for democracies.  All of them were interim answers, mitigating consequences and buying some time, but always partial and ultimately unstable.  Northern Ireland learned in a remarkable way how to adapt and survive.

Nonetheless, from the point of view of political science, thirty years of conflict followed by a peace process looks like survival and a miracle rather than a disaster, without taking one iota away from those who suffered.  The point is not that all was perfect, but that a sufficient and emerging partnership between Britain and Ireland and from there to the USA and Europe ultimately ensued that Northern Ireland did not disappear down the hole of the war of all against all, or the them or us that led to Rwanda or Srebrenica but to a slowly emerging consensus that the future must draw on some of the fundamentals underpinning western democracy like freedom, justice, peace and democracy before asserting the rights of any particular group.  The attempt to define freedom, justice, peace and democracy as equivalent to victory never quite stuck.  International partnership sat alongside national war.  All of them were going to make real demands n us as well as them.  Law did not simply blend with one side or another but remained distinctive, if constantly fighting to establish full acceptance.  But the fact that every party in Northern Ireland continued to define their cause in terms of wider western goals, meant that they could be appealed to in the construction of a shared future after conflict.  Ultimately, the political goals of all protagonists can be called to account to a transcendent core beyond the mere assertion of one national project over the other. 

Why does all of this matter in a conference on criminal justice?  Because it sets the backdrop against which change in Northern Ireland is taking place and sets in place the compass by which we might begin to measure progress or the lack of it towards the shared goals of a peaceful, inclusive, prosperous, stable and fair society firmly founded on the achievement of reconciliation, tolerance and mutual trust.  And there is no area which is more critical to this, including political agreement and shared future, than the administration and implementation of justice.   As early as 1890, the German sociologist Max Weber noted that the very definition of the state is the monopoly of legitimate violence (force) within a territory, and the way in which law is exercised is the critical determinant of the quality of a democracy in any territory.   This is especially so where the legitimacy of the state has been the critical axis which has defined political life since the outset of Northern Ireland.

A successful peace process will ultimately depend on two core elements:  a credible and sustainable belief that each and every citizen will enjoy the full rights and responsibilities of citizenship and the monopolisation of all force by the law and its servants.  In both parts, the criminal law is intimately involved.  Furthermore, no matter what the precise choreography and agreed timing, neither element can be in doubt in the minds of all the key actors in the process –political, diplomatic, or social.  That, I suppose, is what John Hume meant when he said 'Nothing is agreed until everything is agreed', because in a climate of mistrust, nothing will survive being undermined by persistent or growing fears about the destination or the intentions of others.  The difficulty is that agreeing on visions is one thing, doing the hard work of changing, with all of its resistances and fears is quite another, especially when it comes to reshaping institutions which are critical to our sense of safety and security.

The process by which legitimacy is established and consolidated was always going to be a complex and difficult task, even if there had been complete political agreement.  But the step by step process through which trust is established – a process of building relationships, of a new and clear consistency of behaviour and performance – does not wait for anyone.  In the midst of uncertainty, the possibility of the visionary future depends largely on decisions by key people and institutions to begin to create the future by acting differently.  The time for adaptation to our difficulties is over, the time for generating alternatives is now. 

The ending of conflict is not a theory it is an experience of newness whose key indicators are all about doing things in a previously unthinkable way and learning to be comfortable with it: but it is always learning to do what we do not know quite how to do.   The emergence of a new culture depends on having different conversations, involving old partners and new partners in unexpected juxtaposition and in a willingness to think creatively as each institution or relationship has to make room for new realities.  This is not an easy process, as Machiavelli knew, especially where these institutions have been central to our sense of security.  It is therefore at its most critical in the area of justice and in a new dispensation around force and violence in which the law monopolises the use of force.  The opportunity of the new beginning in policing ultimately depends on this, which is why the transformation of the police into a service at home in every area in Northern Ireland is so important.  Its key markers are in new possibilities which were impossible before:  freedom of movement everywhere, open engagement with people in every community in problem-solving, a new confidence and transparency around controversial issues and a broad consensus on values and methods.  All of which is clear enough but needs to take account of some of the difficulties which remain.

The fragility of relationships continues to be demonstrated in the speed with which people return to type in their reactions to events and developments.  There is no simple way to avoid this in a society where deterrence is common sense, except by accepting that vestiges of old injury will continue to coexist alongside the emergence of the new.  What is critical, is that those responsible for criminal justice continue to measure progress not against short term political imperatives, but against external standards and values.  If there is ever to be a new future, then the first requirement is that people become convinced that the past really is the past and not the present.  We can complain about over-regulation, but the existence of methods for legitimate complaint and evolutionary change are central to the establishment of a new consistency. 

Second of all, those involved with criminal justice are charged with the difficult task of both asserting the absolute importance of non-violence outside the law and with encouraging improvement in areas here violence has become an acceptable way of dealing with problems.   Only thus can the twin imperatives of treating all citizens equally be reconciled with the requirement to ensure a monopoly of violence under the law.  New partnerships in areas with a history of illegal violence will entail risk.  This is not a task for the faint-hearted and will require the judgement of Solomon at times, which is why the choices of partner should be the subject not of instruction but of clear guidelines and of decision making processes which are subject to regular review.  This is true in restorative justice, in youth justice and in policing.  Ultimately the challenge of moving from conflict to sustainability is not in the manuals; we are learning to do what we do not quite know how to do.  For some years to come, much of our work will be characterised by story telling, with progress measured by the extent to which new experience becomes established practice and by risk taking which is not always successful, but where risk is managed and learning is paramount even in failure.  Thirdly, the road to equal citizenship will not be an equal one in Northern Ireland.  Consistency of principle – full and equal citizenship – will require different emphases in different communities and contexts.  Paradoxically, equal citizenship will required tailored initiatives, all of which are geared to establishing an equality of service and expectation.  Again, the critical requirement will be mechanisms for support and learning.  Fourthly, and perhaps most importantly, the aspiration to a monopoly of legitimate violence is being won against a backdrop that it has not been presumed in Northern Ireland in the past.  Conducting our public relationships through violence will involve increasing steps towards separating those who are willing to engage in a common project from those who will not.  There will be a time for invitation and a time for imposition and it requires a broad public consensus in determining time and place.  Creative ambiguity which allows for people to change over time can quickly become a kind of moral indifference to violence.  Knowing the difference is not only a matter for criminal justice, but for politicians and increasingly for communities and societies at large.  Finally, the process of moving from a past characterised by antagonism to a shared future will entail a doggedness and determination.  Change has not been imposed by decisive victory but is happening slowly by offering alternatives to the past.   It is for this reason, that in spite of political setbacks, I remain an optimist.  It is not possible to transform a society through voluntary change except by gradually engaging ever more difficult subjects.  The bottom line is that each new subject risk reopening old wounds.  Progress is measured by the degree to which, however slowly, old presumptions give way to new patterns.    In this regard, much has already happened, and the difficulties we now face are the difficulties of reaching decisive and irrevocable change.  None of this will happen overnight, but pragmatism in practice must be made the friend of principle in the future if we are to move forward together.

Change from conflict to stable legitimacy will not simply 'happen'. It cannot be achieved by the stroke of a bureaucrat's pen, or even by an international commission of the status of Patten.  Ultimately, legitimacy and credibility are established not only by claim, but by participation.  The cliché of justice being seen to be done is not a matter of passive observation from afar but of engagement.  Thus while change may be arrested by political difficulties, there are many opportunities to continue to embed different relationships in the real world.  Legitimacy cannot be established by the system on its own, but through real experiences across society that the rule of law and citizenship are meaningful concepts.  Patten already recognised that policing is far more than the police.  Likewise justice cannot be a matter for courts alone.  For justice to be a common endeavour, partnerships should not be seen as a dilution but as an enhancement of ownership, especially in a community where the absence of real partnership was an emblem of mistrust rather than of deeply embedded relationship.  The role of agencies for key groups, of politicians on the policing board, of academics in engaging in debate of voluntary and community organisations from all walks of life is essential not only as a tick boxing effort but for the effectiveness of the system itself.  Simultaneously, real success in this area, is central to the pursuit of quality of life and real security in a community riddled by fear.  And while political difficulties will continue to make partnerships difficult, the possibilities of making progress continue.

For this to happen, a number of things are required.  First of all, the strong international consensus against violence in Ireland and in favour of partnership and citizenship based on clear international standards is critical to generating a baseline for norms beyond immediate party interest.  Recourse to these wider standards is essential in creating legitimacy around change with or without a final political settlement.  In the area of criminal justice this has been the crucial driver of renewal over recent years.  Second of all, there needs to be a widespread acknowledgement that the inconsistencies of transition will continue in a context where peace is unstable.  Ongoing violence is going to continue to force pragmatic choices on all public agencies.  What is critical is that opportunities for change where they are offered are actually taken.  Problems in one place, driven by practical necessity should not stop change in another, because it is change that provides the evidence of possibility even in the hardest districts.  Thirdly we need to pay far greater attention to mechanisms to promote learning and development both within organisations and across the whole criminal justice sector. In a context of rapid innovation, change is driven from the margin and the role of leadership is to integrate and support new opportunities in a way that creates safety around risk.  This is particularly true in the area of new partnerships where suspicion has to give way to co-operation.  Fourthly, change has to be consistent and persistent in spite of set backs.  Leadership will require a consistent willingness to move beyond the comfort zone of adaptation to conflict into the unknown world of generating something different.  In the area of criminal justice is will be crucial.  Finally, political authority in Northern Ireland must be clear and unambiguous about the core goals – equal citizenship for all, no matter what our differences and a monopoly on all legitimate force for the law in a shared future.  Whatever choreography is required, there can be no doubt about the final destination.  And until this is established, everything will remain 'in transition'.

What is critical is that the direction of criminal justice in Northern Ireland does not deviate, and grows in practical and small ways as well as in great gestures.  A legitimate and established criminal justice system is the prerequisite and the evidence for a civilised society.  In a society where conflict has been normative, the system must extend far beyond trusted professionals into the making of new partnerships, new advocates and new presumptions.  There is a lot to do, but it will always be a goal worth pursuing.  I hope this conference plays its part.