Analytical Models of Alternativity in Legal Systems
Unit 6: Analytical Models of Alternativity (cont.)
Model of Transformation of the State Order
This model aims to overthrow the existing legal system, which is seen as an instrument of domination that protects the interests of the powerful. It seeks to formalize the demands of marginalized groups and make the state responsive to their needs. This model has two aspects:
- Alternative Use of Law: Judges challenge the neutrality of the judiciary and advocate for the interests of marginalized groups.
- Alternative Practices of Law: Grassroots organizations create and enforce their own legal systems.
Model of Parallel Alternative to Official Law
This model emerges in the absence of a functioning state legal system. Communities create their own legal systems to regulate social relations. This often leads to the application of arbitrary and harsh punishments.
Model to Complement Traditional Justice
This model seeks to make the justice system more accessible and efficient. Special courts, such as small claims courts, are established to handle minor disputes and reduce the burden on traditional courts. However, these courts have limited effectiveness and do not address the root causes of the justice system’s problems.
Falbo’s Analysis
Falbo identifies two key models:
- Model of Transformation of the State Order: Judges use their interpretive power to create new legal standards that reflect the demands of marginalized groups.
- Model to Complement Traditional Justice: Special courts are created to handle minor disputes and reduce the burden on traditional courts. However, these courts often lack resources and are not able to effectively resolve conflicts.
Conclusion
None of the models discussed provide a complete solution to the problem of societal regulation. The state has failed to effectively regulate society, and society has not been able to effectively regulate itself. This creates a gap in legal systems that leaves many people without access to justice.