Acta Juridica - Volume 2007, Issue 1, 2007
Volume 2007, Issue 1, 2007
Source: Acta Juridica 2007, pp VII –XIV (2007)More Less
In the past decade-and-a-half or so, the resolution of deep social conflict in a number of countries has been accompanied by a concern for ensuring 'transitional' justice. The shape such a goal has taken on has frequently been phrased in terms not of simple punishment of the old regime's worst offenders, but of a process of bringing about some form of reconciliation or harmony between both injurers and injured. Leaning heavily on the paradigm of 'restorative justice', quite ambitious endeavours of a public, formal kind have been made to cleanse the collective memory and mitigate individual hurt. In this respect the South African Truth and Reconciliation Commission (TRC) is widely regarded as one of the compelling examples of restorative justice-in-action, its many imperfections notwithstanding. As a transitional justice mechanism, the TRC remains one leading model, both symbolically and practically, to which others look in seeking ways for engaging with processes aimed at the public acknowledgement of past abuses; the redress for survivors through reparation; the creation of appeasement between former protagonists, and the delivery of a measure of justice. As with other transitional justice mechanisms, the TRC has contributed to our appreciation of the linkages between truth, reconciliation and restorative justice - both at the level of abstract principles and at the level of routine social practices.
Situating restorative youth justice in crime control and prevention : Part I - international trends in restorative justiceAuthor Adam CrawfordSource: Acta Juridica 2007, pp 1 –21 (2007)More Less
Restorative justice has been one of the most significant developments in criminal justice practice and criminological thinking to have emerged over the past two decades. It offers both a philosophy of conflict resolution and a model of justice. It is said to have implications for governance at local, national and international levels, and relevance in guiding the settlement of non-criminal quarrels, minor infractions and serious interpersonal violence, as well as international disputes, state violence and cases of mass genocide in societies in transition. Yet, in large part it constitutes either a practice (often at the margins) in search of a theory or alternatively, a philosophy desperately seeking implementation. Despite important steps to reconcile theory and practice, the 'gap' between ideal and reality remains a considerable one.
Victim-offender dialogue in violent cases : a multi-site study in the United States : Part 1 - international trends in restorative justiceSource: Acta Juridica 2007, pp 22 –39 (2007)More Less
From its beginnings in Kitchener, Ontario in the mid-1970s, victim-offender mediation in North America has been largely utilised in situations of property crimes and minor assaults, and often focused on juvenile delinquents. With thousands of cases in more than 1 500 programmes in 17 countries, victim-offender mediation with property offences and minor assaults is the most widespread and empirically grounded expression of restorative justice in the world. Numerous studies have found the process of victim-offender mediation in less serious crimes to have a positive impact on victim and offender satisfaction, perceptions of fairness related to the mediation process and outcome, successful completion of restitution, and reduction of recidivism.
Crime control developments in post-modern societies and in societies in transition : looking for possible common features between seemingly unrelated discourses and practices, also with regard to the implementation of Restorative Justice : Part 1 - international trends in restorative justiceAuthor Hans-Jurgen KernerSource: Acta Juridica 2007, pp 40 –55 (2007)More Less
The reflections presented in this contribution pertain primarily to Europe, and in particular to Germany. They are based on personal experience in the field of crime control and criminal justice (policy), apart from some 40 years in academia as a researcher and teacher.
There are some commonalities to the various ways and means of crime prevention, crime control and administering (criminal) justice in societies, which have to a greater or lesser extent been described and discussed in texts or books on, for example : legal anthropology; systems of informal versus formal social control; policing cultures or styles; procedural rules in general or evidence-gathering in particular in adversarial versus inquisitorial penal procedure models; common law versus civil law systems; and systems of sanctions broadly defined compared to structures of formal penalties and so-called penal measures narrowly defined.
The institutionalisation of restorative justice : justice and the ethics of discourse : Part 1 - international trends in restorative justiceAuthor Barbara HudsonSource: Acta Juridica 2007, pp 56 –72 (2007)More Less
The starting point for this paper is that restorative justice is based on the idea of examining and reconciling different claims on justice and different perspectives on undesired (criminal) events through discourse. Terms such as 'dialogue', 'deliberative debate', 'conference', occur repeatedly in discussions and descriptions of restorative justice, but these words remain largely unexamined, they are the taken-for-granted dimensions of restorative justice. This paper focuses on the 'discourse' of restorative justice; the discussion rests on three main arguments.
An ethical justification for the theory of Law as Peacemaking : Part 1 - international trends in restorative justiceAuthor Robert E. MackaySource: Acta Juridica 2007, pp 73 –90 (2007)More Less
This paper states the theory of Law as Peacemaking. It describes some of the methodological issues associated with developing the theory, it gives reasons for the need for such a theory and finally attempts to provide a justification for it in terms of ethical theory.
Restorative justice through networking : a report from Europe : Part 1 - international trends in restorative justiceAuthor Ivo AertsenSource: Acta Juridica 2007, pp 91 –112 (2007)More Less
Restorative justice does not stand on its own. Its practices and organisations are part of a context of ongoing interaction with both the formal and informal environment. Restorative justice initiatives can only survive in a partnership with related organisations and institutions, such as victim support organisations, probation services, social work organisations and the criminal justice system. The relationship of restorative justice providers with their adjacent partners, however, is not the subject of this contribution. The main focus will be on co-operation between restorative justice organisations, in particular at the international level.
Development, social justice and global governance : challenges to implementing restorative and criminal justice reform in South Africa : Part II - restorative justice, crime and (in)security in AfricaAuthor Tony Roshan SamaraSource: Acta Juridica 2007, pp 113 –133 (2007)More Less
Attempts at implementing institutional transformations in criminal justice systems face a number of, thus far, nearly insurmountable obstacles. This paper examines one specific set of challenges having to do with governmentality and the practice of urban governance in the post-Cold War era. It is my contention that governmentality and its practice, as they are constituted today, act as impediments to the implementation of restorative justice in South Africa. The paper is divided into two sections. The first is a discussion of governance and governmentality at the global scale. The second addresses the importance of examining these as they are expressed at the level of the city. It begins with a case study of urban renewal in Cape Town that is meant to illustrate a particular manifestation of post-Cold War governmentality at the local / municipal level, and concludes with a discussion of the challenges this governmentality poses to the implementation of restorative justice.
Exploring the impact of gated communities on social and spatial justice and its relation to restorative justice and peacebuilding in South Africa : Part II - restorative justice, crime and (in)security in AfricaAuthor Karina LandmanSource: Acta Juridica 2007, pp 134 –155 (2007)More Less
One of the urban development forms that has received increasing public interest since the late 1990s is privately organised and secured housing developments. The spread of these neighbourhoods (often called 'gated communities') in many countries in the world has been represented frequently as the privatisation of public space and has been associated with growing local security problems and the importation of commodified neighbourhood values and technology, especially from the USA. Webster distinguishes between several forms of private governance, including private residential communities (cooperatives, homeowners' associations and condominiums), retail communities (leisure complexes) and industrial communities (industrial parks). These private or micro-governments encompass a wide range of functions. For example, they supply civic goods and represent those individuals who voted for a management body to manage and control affairs. They thus start to embody a new form of collective local power that facilitates new mechanisms of local control. These mechanisms raise several questions regarding urban governance and security and the role of the state and non-state institutions at different levels.
Back to the future in South African security : from intentions to effective mechanisms : Part II - restorative justice, crime and (in)security in AfricaSource: Acta Juridica 2007, pp 156 –170 (2007)More Less
Recently the South African Minister of Safety and Security, Charles Nqakula, argued that local and municipal police should be thought of as 'co-owned' by communities. To enable the realisation of this vision Nqakula was reported to be considering 'changes to the Police Services Act and the laws governing municipal policing'. In this report the Minister is quoted as saying that 'no police force, no matter how big it is, can ever effectively deal with crime' alone. In the Sunday Times, also of 6 May 2007, the Minister is reported as arguing for the importance of forging a closer relationship between the police and the private security industry.
'He must buy what he stole and then we forgive' : restorative justice in Rwanda and Sierra Leone : Part II - restorative justice, crime and (in)security in AfricaAuthor Bruce BakerSource: Acta Juridica 2007, pp 171 –192 (2007)More Less
The emphasis on resolving disputes collectively through the interaction of victim, offender and members of their communities has a long history across Africa. Indeed it is still a dominant focus in justice structures outside of the formal state sector. And since most Africans use non-state justice systems, restorative justice is how most civil and criminal disputes are handled. The agencies using elements of the restorative approach include : customary courts, justice community-based organisations (CBOs), local government structures and work committees. All use restorative justice to varying degrees to resolve both minor and serious disputes within their governance contexts.
Author Carl StaufferSource: Acta Juridica 2007, pp 193 –208 (2007)More Less
If one were to take a cursory glance at the discourses that dominate the studies of religion and justice, one might conclude that both of these disciplines lend themselves to 'worldviews' of polarities. Hence, some readers of this paper may already be feeling a discord when the conceptions of 'spirit' and 'justice' are joined together. The division between that which is secular (non-religious) and that which is sacred (religious) is often presented as compartmentally definitive and therefore, separate. Thus, in many circles of thought, the process of satisfying human 'justice' is conceived of as a public, secular undertaking and the process of spiritual 'transformation' is relegated to a private, sacred happening that occurs within the confines of specific religious strictures.
Is punishment the appropriate response to gross human rights violations? Is a non-punitive justice system feasible? : Part III - retribution and restoration in critical perspectiveAuthor Ezzat A. FattahSource: Acta Juridica 2007, pp 209 –227 (2007)More Less
Let me start by telling a personal story. It is the story of how, more than three decades ago, I was converted to the idea and principles of restorative justice. Thirty-five years ago, in the heated struggle to get Canada to abolish capital punishment, I decided to test the popular and widely-held, though unproven, belief that the death penalty is a unique deterrent. To do so, I conducted a study of the quantitative and qualitative regional variations in criminal homicide rates across Canada. The results showed that the faith placed in the deterrent effect of the death penalty lacked any scientific or empirical support. One of the lessons the study taught me is that homicide research can, in many ways, be very enlightening for the discipline of criminology, much more so than other offences against the person or against property. So when shortly afterwards I was visiting the Ivory Coast as a guest professor at the University of Abidjan, I decided to do a study of African homicide to gain a better understanding of the impact culture has on the rates, the nature and the types of criminal homicide.
Tapping indigenous knowledge : traditional conflict resolution, restorative justice and the denunciation of crime in South Africa : Part III - retribution and restoration in critical perspectiveAuthor Ann SkeltonSource: Acta Juridica 2007, pp 228 –246 (2007)More Less
South Africa is viewed as being a country that understands and engages with restorative justice. Indeed, South Africa's indigenous knowledge base of traditional justice practice is an enormous advantage in explaining restorative justice in South Africa, and a description of the principles of restorative justice to audiences in South Africa is generally met with a nodding of heads confirming that the concepts are familiar. Modern restorative justice and indigenous justice practices share many similarities, and those are discussed in this article, as well as certain differences. Despite this positive foundation, restorative justice has not really taken root in the criminal justice system in South Africa.
The antinomies of restorative justice : Part III - retribution and restoration in critical perspectiveAuthor Raymond KoenSource: Acta Juridica 2007, pp 247 –271 (2007)More Less
Restorative justice is easily and indisputably the most exciting and fascinating recent development in the criminological field. As a self-consciously new way of doing justice, it is hardly more than 25 years old. Yet, it has captured the imagination and won the approval of large numbers of criminal justice analysts and practitioners who see in restorative justice a practicable and promising solution to the international crisis of criminality. One discerns a collective sense of relief - and belief - that finally, after so many false starts and blind alleys, there is a real possibility that the answer to one of the most intractable problems of contemporary society has been discovered. Indeed, if the proponents of the restorative justice are to be believed, their project may hold the key to solving all the serious socio-economic problems of our time. Certainly, restorative justice has rapidly acquired an imposing presence in and dramatic influence upon the world of criminal justice, and demands to be taken seriously. Whether we like it or not, this is the era of restorative justice.