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Although the option seems obvious to us, the truth is that we ourselves talked a lot, in the first approaches to this science, of “Preventive law“, Which has a simple explanation: it is exactly the lawyers who have the greatest role (and we do not mean” the best “, but only” the broadest “) in the development and implementation of Preventive Law techniques.
Later on, we will see that there is a phase in the “timeline”, as it is here that the Preventive Law is developed and perspective, in contrast to the “vertical line”, which corresponds to the traditional practice of advocacy, which is developed on a plan vertical, and instead of preventive, it is reactive – the fighter, oriented towards the exercise of power, from top to bottom, facing backwards, towards the past -, of Preventive Law in which the Lawyer is practically the only professional who can (and must) intervene.
But that does not prevent many other phases in which Preventive Law can (and should) be “cultivated” by many others: mediators, arbitrators, judges of peace, magistrates, etc., etc.
More important than this, there is no way to make “Preventive Advocacy” autonomous in the science of Preventive Law, since the entire method of work of the professional that prevents it implies the consideration, simultaneously, of all the phases of the “timeline” ”, They compete for professionals to compete.
Thus, although in Preventive Law the Lawyer is always the most “unjudicialized” element and, if acting in prevention, acting more distant from the conflict (current or potential), we have no doubt to call the theme that we cure here “Preventive Advocacy ”Would be to create insurmountable theoretical-practical difficultie
The big myth – and the great enemy – the Preventive Lawessentially present, it has to be said, on the most conservative fringes of lawyers, and, simultaneously, in all public opinion, is that prevention, or the search for friendly composition, is a sign of weakness, especially when it appears on its own initiative .
But, as we will see later, Preventive Law has extremely aggressive and intelligent techniques, to the extent that in some cases they remove all their scent of litigation, or, in some others, leave the other party without weapons.
The position of the “active prevented” is always superior, and clearly more comfortable, than that of the Plaintiff or Defendant, whose action always takes place in a reduced space, with few and inflexible weapons, and with a subjection to a system that they do not command (and if we think of a context other than Portuguese, where everything is controlled and hindered by corrupt powers, we can get an idea of where the weakness really is.
We have for us that the choices of the litigation route are what, more often than not, give deep signs of weakness.
Because there is a very big difference between the pure and tough warrior, and the person who solves problems. The former does not always strive to solve any problem, taking pleasure in the struggle for the struggle, and being able to go against the very function that he performs.
Because Preventive Law is also, or is essentially, a cultural and citizenship issue (not least because, in theory, anyone agrees with the principles of Preventive Law, but, in practice, few dispense with the winner-defeated logic of the system “ vertical ”), any good idea to involve citizens in the application of justice, using the horizontal system of Preventive Law, is a good idea.
We briefly address here the successful American experience of the Youth Courts of Peers, which, while not being a scientific application of Preventive Law, demonstrates that, in practice, its principles, even if not studied, are easily intuitive by all – which it shows, first of all, that Preventive Law is more natural to man than Reactive Law.
Youth Peer Courts are an opportunity for juvenile offenders to avoid effective arrest if they are linked to a rehabilitation program. They exchange a guilty plea for a clean criminal record, and must agree that their sentence is determined by a jury of peers, that is, by other juvenile offenders.
According to testimonies, the experience is profoundly remarkable, in the best sense, for all parties.
The Jury will normally include in the sentence the obligation of two future appearances in a court of the same type, and a letter of apology to the victims. The term given for compliance with the sentence is normally two months, and supervised by members of communities (parents, law students, probation officers, among others, always volunteers).
Research shows that the recurrence rate is much lower in these cases.
Almost all the principles of such horizontal / preventive justice can be seen here.
We have often seen great debates around justice, but we have not yet seen anyone defend that the problems and the failure of justice as it presents itself today, that is, in our words, Reactive Vertical Justice, can have profound, connected reasons to the conception of the current model.
It is one of those profound reasons, in our view, that we now briefly explain.
The Justice Vertical Reactiva it can never really work, because of the perfectly incoherent positioning – we will say even because of the impossibility of coherent positioning – of the so-called forensic actors. Actors who, being “collateral” to the matter, to the truth, end up distorting it decisively.
The explanation of this conceptual mistake is very simple. Let’s take as an example the Judges and Lawyers: the Lawyer is endogenous to reality, because he contacts directly with it, at least as it is exposed to him by clients, but he has an exogenous position to the judicial process that this reality can generate.
The judge is endogenous to the process, but clearly exogenous to reality, receiving it with dense filters.
Now, obviously, the dynamic movement of both is to counter the above inevitability.
But in order to counteract a dynamic movement, say, natural, it is necessary a dose of extraordinary energy, energy that is not always, we would say almost never, available from any of these “actors”, and when it is, the observed results are clearly superior.
Now, we have the entire Vertical Reactive Justice system dependent on “inevitabilities” like this. And if this system emerged, historically, because it was necessary, or because it revealed itself to be a cultural requirement, nowadays it has to be relegated to the field of exception.
Because, stuck as it is in the foundations of any society, it will always contribute to its malfunction, and not the other way around, no matter how much it mends here and there.
As already mentioned above, the Preventive Law movement is usually backwards, if we consider it in its absolute usefulness.
This takes us to a starting point, clean, almost empty, where we have to consider only the person, in his nakedness. At this point, law is just one more branch of knowledge, among many others.
As mentioned above, in the example of the Youth Peer Courts, the conflict, or the absence of it, or, even better, the way of dealing with it, is essentially a question of citizenship, a question of education, a cultural question.
That’s why the first point of the timeline of Preventive Law it can only be the formation of the person, summoning all the professions that deal with him (priests, doctors, teachers). Also called here are all branches of knowledge, from Philosophy to Medicine, from the Right to Theology, etc., etc.
The Lawyer, at this stage, has a marginal utility, although he has it, and in a fundamental point: the Lawyer is the professional who knows the manifestations of conflicts, and therefore knows, better than any other professional, the ways to avoid them, not least because the other professionals who deal with conflict, most of the time, cannot be consulted (magistrates, for example). You know or should know, because, as we will see in point 15, Preventive Law cannot be worked in a frivolous way, as it requires its own skills and knowledge, and not all lawyers have them.
In Portugal, there is simply no history of preventive law, not least because this is an instrument that has only recently begun to be studied and systematized.
Preventive Law is not to be confused with proximity Justice, but with some traditions in our country, which are now being recovered with the resurgence of Peace Judges – with a profile, however, markedly different from the Peace Judges of old – as if you know, the Judges of Peace came up with the 1826 Portuguese constitutional charter, marked the proximity justice for about 100 years, and were later abandoned by the Estado Novo, to resurface very recently, with Law 78/2001, of 13 August .
You can read, from time to time, some brief interventions on the topic, some interesting, others giving the clear idea that its author does not even know what Preventive Law is, which is often confused with ( or reduced to) alternative means of conflict resolution, arbitration or mediation, when these moments, although being an integral part (further ahead) of the prevention process, seen very broadly, do not fail to mean that the phases previous ones have not been summoned – and, if they sometimes cannot be, due to the nature of the “problem”, most of the times they can, and are not; or they were, and they failed.
The “recently” we mentioned in the first paragraph of this point is not Portuguese. Portugal can only have one “not yet”. The “recently” is from the United States, and will be about fifty years old, thanks to the work and grace of the one who is considered there as the “father of Preventive Law”: Louis M. Brown.
And if you are a father there, you are a father here, because in these more creative dimensions of law, the United States is kings and lords. In Europe, the science of law is dense, complex and somewhat gray, even in Anglo-Saxon systems.
Mr. Brown left his trail in this area for future generations, who are only now beginning to “wake up” to her, even where reflections and studies have gone further. In any case, the “Preventive Law program” was created in his image at the “California Western School of Law”.
Louis Brown (1909-1996) founded and was president of the National Center for Preventive Law at the University of Denver, and his work in this field goes back to the 1950s. He was a lawyer and university professor, and authored and co-authored 10 books, and more than 150 scientific articles on Preventive Law.
Professor Brown’s program, just over five years ago, was practically the only reference in American Preventive Law, and even worldwide.
Recently, however, there has been a considerable evolution, including in the terminology associated with Preventive Law.
We can only mention it as a curiosity, since detailing it and explaining it would mean walking the cart far ahead of the horse (if we are just beginning to get used to the expression “Preventive Law”): “Multidimensional lawyer” , “Prevention Designer”, “Youth Peer Courts”, Creative problem solving ”,“ Therapeutic Jurisprudence ”, etc., etc.
The rest of the world has the privilege of being able to observe the path taken by the pioneers, bypassing some of their mistakes.
We have already seen it written that one of the main mistakes of the pioneers of Preventive Law was the inadequacy of their theories to the social fabric of the time in which they appeared, proving the fact that it took more than fifty years to reach the center of the debate, but we, in all our insignificance, we must disagree.
As we will see below, Preventive Law is natural to man, and it was his primacy that created and developed the vertical system of Reactive Law that we use today, clearly in crisis for tens, if not hundreds of years, and which no longer responds to the “basic need” of man’s justice.
Because Preventive Law is also, or is essentially, a cultural and citizenship issue (even because, in theory, everyone agrees with the principles of Preventive Law, but in practice, few dispense with the defeated logic of the system itself ” vertical “), any good idea to involve citizens in the application of justice, using the horizontal system of Preventive Law, is a good idea.
We have briefly touched upon the successful American experience of the Juvenile Peer Courts, which, though not a scientific application of the Preventive Law, demonstrates that in practice its principles, even if not studied, are easily demonstrates, first of all, that the Preventive Right is more natural to man than the Reactive Right.
Peer Juvenile Courts provide an opportunity for juvenile offenders to avoid effective detention if they are linked to a rehabilitation program. They exchange a guilty plea for a clean criminal record, and they must agree that their sentence is determined by a jury of peers, ie by other juvenile offenders.
According to testimonies, the experience is deeply striking, in the best sense, for all parties.
The jury usually includes in the judgment the obligation of two future appearances in a court of the same type, and a letter of apology to the victims. The deadline for serving the sentence is usually two months and supervised by community members (parents, law students, probation officers, among others, always volunteers).
Research shows that the rate of recurrence is much lower in these cases.
Almost all the principles of such horizontal / preventive justice can be found here.
A very curious aspect of the emergence of Preventive Law and Horizontal Justice, not only as an alternative, but as the maximum common denominator, if not the present, the near future of Justice, is the inversion, in the case of lawyers, of the growing trend of specialization . Or the emergence of a new specialization in completely different ways, and very identical to the specialization in General Medicine (in fact, the Preventive Medicine metaphor is recurrent in the clarification sessions on this topic).
The fact is that, as we will see in more detail below, Preventive Law causes the professional to step back as far as possible in the timeline, in order to be able to structure the best solutions for the person who uses it. Now, this retreat makes it necessary to have a comprehensive view, however with solid foundations, about the whole Law. Practice will give you skills that, as all lawyers will surely have experienced, are more specific to these other branches of knowledge than to law.
But it is the curious idea of this other way to specialization, and comfort that there will be room for them to now dubbed “Law of General Practitioners.”
