Toward a Jurisprudence of Law, Peace, Justice, and a Tilt Toward Non-Violent and Empathic Means of Human Problem Solving


This essay asks questions about whether there can be a jurisprudence or legal theory of peace and non-violence. Based on a talk at a symposium at Harvard, hosted by the Unbound journal, the article suggests that law should promote peace, non-violence and human flourishing, as much as it currently acts in "violent" (Robert Cover) and prohibitory ways. Suggesting some avenues for further theoretical development in "positive" rights and jurisprudence with an enabling and creative set of legal rules and processes, the essay builds on personal encounters with legal struggles that have proven inadequate to meet basic human needs and suggests we could refocus, or at least "add" to more conventional ideas about the purposes of law and legal institutions to service human needs. The difficulty of building a theory of peace, non-violence and process pluralism in a world that remains violent, focuses on past injustices, and remains state-based, is lamented, even while dilemmas continue in our responses to human cruelty to other humans. But law should be harnessed for more humanely positive, creative, and restorative goals and processes as well as the more common punitive and brittle categories and processes we have now. The essay reports (briefly) on some restorative justice and other process possibilities.