The Law Commission of Canada has identified Social Relationships as one of its key research themes. As society becomes more diverse, Canadians are increasingly seeing themselves not just as individuals, but as members of groups.
Yet much of our law continues to be based on the assumption that only individuals matter. This is most evident in the way it addresses interpersonal relationships that give rise to conflict. Traditionally, judicial procedures have presumed that the goal of litigation is to discern the facts that relate to a particular situation of conflict, and then to identify the law that applies to these facts.
The adjudicative process is two-sided, adversarial and backward looking. It works to produce winners and losers. Many of our most important societal issues can be only imperfectly forced into this model. Frequently, there are multiple parties to a conflict. The issues that divide parties are often not twosided, but are multi-sided. And the remedies sought by persons in conflict are not necessarily just the reparation of some harm or the restoration of a previous situation; often they seek the transformation of a relationship gone sour.
The limits of the criminal and the civil law in responding to conflict have been well worked over by scholars and commentators. This is especially true in relation to the criminal law. A great deal of effort has been devoted to finding alternatives to punishment and incarceration as a way of rehabilitating offenders. The idea of restorative justice is one promising approach to recasting criminal law. In the law of civil disputes - contracts, property claims, family law, and so on - a like reassessment is underway.
Here the goal has usually been to consider alternatives to courts as a way of resolving disputes. Energy has not been invested either in reconceiving the theory and the practice of justice upon which these alternatives should be based or in evaluating the way in which these challenges evidence larger social transformations.