Perspective on Conflicts and Disputes
Published 18 Jan 2017
Long before the rule of law and dispensed decisions that effectively dictated who is wrong and who is right, long before policies and procedures governed the way things were done, long before the principles with which we have to live by were set in stone, people used to rely on trust as the primordial and highly reliable standard by which order is maintained, and business is conducted. In this setting, sans a formal legal structure, one’s reputation is a valued characteristic.
In this particular structure, when relationships deteriorate, disagreements are settled either through violence — the proverbial “an eye for an eye” — or through the early biblical notion of justice as exemplified by King Solomon’s decision to settle who truly is the mother of the infant child. In earlier times, the leader of a group, clan, or tribe will be the judge, mediator, or arbitrator of any form of strife that may arise between and among members of the group. Clashes between members of different groups almost always resulted in violence. It was fairly basic then and formulaic: goods and even services were exchanged in fair value determined often by the contracting parties themselves.
Fast forward a few centuries and a formal legal structure should have been established to reinforce the ideals of trust, equality, justice and fair dealing. Conflict is a social phenomenon arising from personal as well as group relations and interactions. Depending on one’s perspective, it is both a deterrent and a facilitator of change and progress. In a civil society, reliance on a framework of order and governance has been instituted and enforced to limit the counterproductive effects that conflicts and disputes beget, if not its exacerbation, that can and may lead to the dissolution of relationships. Relationships between inpiduals are the glue that holds a society together. In the case of Albo and Jeder, it is an early symptomatic illustration of a burgeoning dispute between inpiduals and which can go deeper as far as splitting the clan itself.
The very structure by which a civilized society restricts conflict or its effects thereof is founded on the concept of Justice. It can be said that conflict brought about the need for the concept of justice or in other words, the concept of justice may never have been as fully established or defined as it is today if not because of the conflicts that has beset human history. Justice comes in many terms — fairness, moral rightness, etc. — and comes in a multitude of forms. The legal definition of Justice is the “proper administration of laws.” (Black, 1990, p. 864) More precisely, In Jurisprudence, it is “the constant and perpetual disposition of legal matters or disputes to render every man his due.” (Black, 1990, p. 864)
The role that justice plays in dealing with conflicts is that it “presupposes a world of scarce resources in which people are pressing conflicting claims for the protection of competing interests. One of the functions of a theory of justice is to offer normative criteria for arbitrating between such conflicting claims.” (Mautner, 1991, p. 103) Further, it is “comprised of three major types: retributive justice, concerned with criteria for the punishment of wrongdoers; corrective justice, concerned with the protection of entitlements from injury or appropriation; and distributive justice, concerned with the distribution of scarce resources to competing claimants on the basis of criteria such as equality, desert, or need.” (Mautner, 1991, p. 103)
These types of justice are important in the resolution of conflict. In the US Constitution, the concept of justice is embedded in the Bill of Rights, particularly, the 1st amendment, to wit, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The essential elements of justice, especially in dealing with conflict involving persons, are due process — which operates on the “fairness” of the creation and of the application of the law — and equal protection — which operates on the “fairness” of the treatment or rights accorded by the law to inpiduals. In the case of Albo and Jeder, there was a shift in the status quo when Jeder offered less of what was expected. The exercise of “giving every man his due” was perturbed.
Conflict is “the opposition of response (behavioral) tendencies, which may be within an inpidual or in different inpiduals.” (Coombs & Avrunin, 1988, p. 1) Conflict, moreover, “is a normal product of persity in beliefs and values, differences in attitudes and perceptions, and competing socioeconomic and political interests among inpiduals, social classes, ethnic groups and states.” (Rabie, 1994, p. 3) From these definitions, it can be derived that the backbone of conflict is social interaction. There are several types of conflict. However, one that is relevant to the Albo and Jeder case is the “Type II” conflict.
“In general, so long as the parties to a conflict want different things but seek a single option among the possibilities, one that is to hold for both of them, then the conflict is Type II.” (Coombs & Avrunin, 1988, p. 68) A dissection of the Albo and Jeder case indicate that there is clearly an imbalance. The imbalance stemmed from Jeder giving Albo a portion of meat that is less than what Albo is giving to Jeder resulting in Albo offering less to the community and Jeder offering more.
A rule of the clan of never rejecting any offering of food prevents Albo from repudiating Jeder’s insufficient contribution. The pertinent “law” of the clan, taken alone, can be perceived as tilted in Jeder’s favor and is somehow restricting the avenues of relief for Albo, that is, not accepting the inadequate portion. What are the options then for Albo? One possible solution, as mentioned in the case, was for Albo to match Jeder’s offer everytime they hunt separately. This would restore justice, as this would give every man his due. However, this may prove detrimental to the dynamics of the clan. Taking the premise of matching of offers a step further, what will happen then when Jeder decides not to give Albo any portion of his kill?
The solution put forth above will still hold but it will not be good for the propagation of social interaction among the members of the clan. Albo’s proposed solution may create a sort of pisiveness among the clan members – an Albo versus Jeder standoff. And when pisiveness creeps in, defection from the clan is not too far off. What alternative solutions are available to Albo then — one that can mitigate the foreseen drawback of the first solution? “Conflict resolution processes should emphasize reforming existing relationships through attitudinal, institutional, and structural changes as well as change in the laws that govern societal processes.” (Rabie, 1994, p. 22) A remedy that will not eventually break down a group should be sought. Conflict resolution must aim to expedite the long and often dangerous path from strife to peace and harmony.
The Israeli – Palestinian conflict has transcended time, religion, and international community intervention among others. The “proportion of meat” in question is land. Albo and Jeder are the Israelis and the Palestinians. One is not willing to give the other a certain portion of what the former may have and what the latter may not have. “Originating as potential conflicts (conflicts in the making), they go on to move through confrontation and contest into internecine violence involving army, paramilitary recruits and a civilian population voluntarily or compulsorily implicated.” (Whittaker, 1999, p. 10)
There are particularly three approaches to conflict resolution. “They are negotiation, mediation by a third party and authorised intervention.” (Whittaker, 1999, p. 4) Negotiation is oftentimes conducted by the parties involved themselves. When negotiation fails, mediation by a third party usually follows. Mediation is adopted “when violence tends to spill over into neighbouring areas.” (Whittaker, 1999, p. 4) Mediation is done usually by another state duly appointed or recommended by the two parties in conflict. The third option — authorized intervention — requires an enabling provision from a law giving the intervening body the power to resolve the issue.
The body that is authorized to resolve conflict between and among nations is the United Nations. Moreover, Chapter VI of the Charter of the United Nations — The Pacific Settlement of Disputes — enables the UN to engage and take over matters that cannot be resolved by the nations in conflict. “Three criteria have conventionally underpinned UN involvement in any internal crisis. Is an internal conflict becoming so dangerous that it constitutes a serious threat to international peace and security? Is the state in question willing and competent to deal with its internal conflict? Is there any feasible alternative to intervention by the UN?” (Whittaker, 1999, p. 112) These criteria are weighed by the Security Council of the UN.
The Security Council is a group of nations, elected by the UN members themselves and is the body that has the power to authorize remedial action. Before any action can be proposed and implemented, it is incumbent upon the Council that an “appraisal which must be objective and not excited by the public’s sense of frustration and futility at the scale of conflict and its violations” is carefully carried out. (Whittaker, 1999, p. 112) The conflict between the Israelis and Palestinians are far from over. Stop gap measures are being proposed, and will continue to be proposed to contain the violence — the primeval solution to conflicts — for the meantime as the resolution process , or the “peace process” as it is called, is being ironed out.
One of the resolutions put forth is the “shared homeland model.” (Rabie, 1994, p. 180) “The shared homeland would meet the need to address the legitimate rights of national minorities to freedom and self-determination, while posing no threat to neighboring states or endangering the rights of other minorities to similar entitlements. In addition, it protects the rights and properties of inpiduals living outside their own ethnic homelands, while allowing them to peacefully and voluntarily relocate as they may wish. As such, it facilitates cultural homogenization by choice, not “ethnic cleansing” by force.” (Rabie, 1994, p. 180)
Moving towards a more harmonious societal relations therefore require looking beyond seeking merely a resolution to a conflict. Reconciliation between the parties must be sought. Reconciliation, in this context, can be defined as “the process of promoting an integrated community consequent upon group and inpidual preparedness to make concessions for the sake of tolerance and civilized behavior.” (Whittaker, 1999, p. 114) In achieving a societal nirvana, a series of push-and-pulls need to be undertaken. Oftentimes, the number of pulls outnumbers and outweighs the number of push.
In the Albo and Jeder case, the approaches to resolve conflict mentioned — negotiation, mediation by a third party, and authorized intervention — can be applied. Albo can negotiate with Jeder to come to terms on the definite portion of their kill that they will give each other. They can seek the advice of the leader of their clan to mediate if they cannot agree on the portion and on the conditions of the agreement. Authorized intervention in this case would be the intervention exercised by an outside court, which should be within its jurisdiction to take on and adjudicate issues of this nature, to a sovereign, independent body such as Albo’s and Jeder’s clan.
If the clan’s legal structure is found inadequate, Albo can bring his issue to the court which has jurisdiction over the matter. Conflicts essentially expose a certain nation’s legal vulnerabilities or inadequacies to address a particular concern. It therefore, although indirectly, assists in strengthening the legal framework and keeping it as robust as possible.
Reconciliation will come in when the court which has proper jurisdiction over the matter has heard the issues, and have come down with a decision that is rooted in law. The case law, along with the ancillary laws that will be enacted pursuant to this matter, will then form part of the body of jurisprudence that hopefully, will prevent future conflicts of this nature as well as promulgate or facilitate a kind of healthy exchange of goods and services where parties are satisfied and more importantly, where their rights are adequately protected.
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