Introduction
‘Justice according to the law’ – proper operation of a given system, its external standard is being advanced by reference to which the operation of a legal system may be evaluated.
A claim that a law is ‘unjust’ is doomed to fail if it is indeed a ‘law’. The claim of a system to be ‘just’ is ultimately a claim to comply with a standard of evaluation standing outside the forms of law as such.
Using the Lang of justice’ in formal legal Lang is an attempt to give legal proceedings the sense of an external standard of justice…
If it is accepted that even ‘justice according to law’ is a claim referring indirectly to an expectation of absolute justice there still remains a significant problem of defendant. ‘justice’ is usually contrasted with ‘injustice’. Is the latter simply an absence of the former? Are both polar extremes with a large intermediate grey area?
Justice is ultimately a q of the relations of humans in society. Ideas of justice played imp role in the development of naturalistic legal theory- legal order held to conform to the criteria of evaluation advanced by the varieties of naturalistic theory was held to be ‘just’ in nature. This isn’t to say that naturalists argue that a just society can be attained through legal mechanisms alone. St Augustine of Hippo argued that positive law can never be more than a corrective for wrongdoing and that a just society can result only from a quite different and much higher order. Justice, for naturalistic theorists, is a matter of equitable relations between people in society. Such ideas are implicit in Aristotle’s concept of human beings as social or political animals and was stated by Aquinas in his view that justice is concerned with maintenance of the common welfare in a society composed of interactive individuals. Same idea can be argued implicitly to underlie the general Social Contraction notion of social order which fundamentally concerns the jointure b/w individual claims and collective entitlements.
Prof. Salmond: He defined jurisprudence “The science of the first principles of the civil law.”
Prof. Austin: “The science of jurisprudence is concerned with positive law with laws strictly so called”. Austin divided the subject into general and particular jurisprudence.
General jurisprudence includes such subjects or ends of law, which are common to all systems where particular jurisprudence is confined only to the study of any actual legal system of law or any portion of it.
Prof. Holland: “The formal science of positive law”. By the word positive law he defined the general rule of external human action enforced by a sovereign political authority.
Prof. Keeton: “Jurisprudence is the study and systematic arrangement of the general principles of law.”
Prof. Allen: “Jurisprudence is the scientific synthesis of all the essential principles of law.”
Prof. Pound: “Jurisprudence is the science of law”. Using the term law in judicial sense as denoting the body of rules recognized or enforced by the public or regular tribunal in administration of justice.”
Prof. Gray: “Jurisprudence is the science of law, the statement and systematic arrangement of the rules followed by the courts and the principles involved on this rules.”
Prof. Clark: It gives the general ideas, conceptions and fundamental principles on which all or most of the systems of law of the world are based.
No single uniform concept of ‘justice’ in naturalistic thinking but there is an identifiable concern with human relations in a social order and the need to balance their particular needs with the claims of the collective order in which they live. Therefore justice is concerned, in some way, with distribution. In modern world this is treated as a matter of distribution of wealth and whether this should be ‘rights’ or laissez-fairre’ based.
Clear that properly ordered society must involve some principles by which the relations of its members and with the society itself will be regulated.
Not just about distribution of material goods. Locke referred to the security of ‘property’ as a social goal, he included not only material goods but also entitlements which can be classified as HR. this shouldn’t be any less of a concern in the context of modern justice theories. We are then concerned with concepts of individual relations in a social order. This means that questions of distribution and distributive justice arises as well as whether distribution is a relevant criterion of ‘justice’.
The Role of the Judge
Judges play many roles. They interpret the law, assess the evidence presented, and control how hearings and trials unfold in their courtrooms. Most important of all, judges are impartial decision-makers in the pursuit of justice. We have what is known as an adversarial system of justice – legal cases are contests between opposing sides, which ensures that evidence and legal arguments will be fully and forcefully presented. The judge, however, remains above the fray, providing an independent and impartial assessment of the facts and how the law applies to those facts.
Many criminal cases – and almost all civil ones – are heard by a judge sitting without a jury. The judge is the “trier of fact,” deciding whether the evidence is credible and which witnesses are telling the truth. Then the judge applies the law to these facts to determine whether a civil claim has been established on a balance of probabilities or whether there is proof beyond a reasonable doubt, in criminal cases, that the suspect is guilty. Anyone who faces five years or more in prison if convicted of a crime has the right, under the Charter, to request a jury trial, and many defendants facing serious offences such as murder opt to have a jury hear their case. The jurors become the triers of fact and assess the evidence while the judge takes on the role of legal advisor, explaining the law to the jurors. The jurors then retire to deliberate on a verdict. In criminal cases the jury’s verdict, either “Guilty” or “Not Guilty” must be unanimous.
If the defendant is convicted of a crime, the judge passes sentence, imposing a penalty that can range from a fine to a prison term depending on the severity of the offence. In civil cases the judge decides whether a claim is valid and assesses damages, grants an injunction or orders some other form of redress to the plaintiff, unless a jury has been empanelled to make these decisions.
An Independent and Impartial Judiciary
Judicial Independence:
The judiciary is independent from other branches of government. In every country have the personal constitutional laws and jurisdiction and also the different jurisdiction for the international law those are constituted by the ICJ, ICC, and UN.
In the words of a former Canadian prime minister, Arthur Meighen, judges are in “a place apart” from the other institutions of our society. Governments appoint and pay judges, but once appointed judges are shielded from bureaucratic control. Judges must be able to make courageous, even unpopular decisions knowing that no one – a chief justice, another judge, a government official or even the most powerful politician – can fire them or cut their salaries as retaliation. Justice is not a popularity contest, and judicial independence also protects judges who make controversial decisions that spark public outrage. The concept of judicial independence is enshrined in the Charter, which guarantees everyone accused of crimes that their case will be heard by “an independent and impartial tribunal.” Independence is vital to fostering public confidence in the fairness and objectivity of the justice system. The Supreme Court of Canada has described judicial independence as “the cornerstone, a necessary prerequisite for judicial impartiality.”
A number of measures are taken to protect this independence. Judges oversee the administration of the courts and the government does not set hearing dates or assign a judge to a particular case. An independent body, the Judicial Compensation and Benefits Commission, reviews judges’ salaries, benefits and retirement annuities and recommends improvements and changes. Judges also enjoy security of tenure – superior court judges can remain on the bench until age 75 and can be removed from office only after an independent investigation determines they are unfit or guilty of misconduct and both houses of Parliament vote to remove the judge from the bench. Finally, judges enjoy legal immunity and do not have to worry about being sued for something they say or do while carrying out their duties.
Impartiality:
It is not enough for the judiciary, as an institution, to be independent – individual judges must be seen to be objective and impartial. In their personal lives, judges must avoid words, actions or situations that might make them appear to be biased or disrespectful of the laws they are sworn to uphold. They must treat lawyers, clients and witnesses with respect and must refrain from comments that suggest they have made up their minds in advance. Outside the courtroom, judges do not socialize or associate with lawyers or other persons connected with the cases they hear, or they may be accused of favoritism. Judges typically declare a conflict and withdraw from a case that involves relatives or friends. The same is true if the case involves a former client, a member of the judge’s former law firm, law partners or a former business associate, at least until a year or two has passed since the judge was appointed and those ties were severed.
Judges often choose to avoid most forms of community involvement. A judge may undertake community or charitable work but cannot offer legal or investment advice. Judges cannot take part in politics, either as a party member, fundraiser or donor, and many choose to relinquish their right to vote. While judges have been more willing in recent years to make public speeches or agree to media interviews, they refrain from expressing opinions on legal issues that could come before them in a future case. Judges are forbidden from being paid to do anything other than their judicial duties, but can accept appointments to serve on royal commissions, inquiries and other official investigations.
The Qualities Required of a Judge
The judge is “the pillar of our entire justice system,” the Supreme Court of Canada has said, and the public has a right to demand “virtually irreproachable conduct from anyone performing a judicial function.” Judges must strive for the highest standards of integrity in both their professional and personal lives. They should be knowledgeable about the law, willing to undertake in-depth legal research, and able to write decisions that are clear and cogent. Their judgment should be sound and they should be able to make informed decisions that will stand up to close scrutiny. Judges should be fair and open-minded, and should appear to be fair and open-minded. They should be good listeners but should be able, when required, to ask questions that get to the heart of the issue before the court. They should be courteous in the courtroom but firm when it is necessary to rein in a rambling lawyer, a disrespectful litigant or an unruly spectator.
Judges come to the bench after making a significant contribution to the legal profession and their communities. Many have been active in law societies and have done volunteer and charitable work. Others have been active in politics or won elected office. Judges who have served on a lower court are sometimes promoted to a higher court, such as a provincial court of appeal or the Supreme Court of Canada.
How Judges Make Decisions
In the course of a single case, a judge may make countless decisions interpreting the intent of the Charter or a piece of legislation, or applying legal principles and precedents established under the common law. If there is a Supreme Court of Canada or other higher-court ruling in that province or territory that interprets the law or deals with a similar dispute, the judge is obligated to make a ruling that is consistent with this precedent. The details of every case are different, however, and the judge may be able to “distinguish” the rulings of other courts and make a decision that breaks with precedent. And, of course, if a novel issue arises and there is no precedent to follow, the judge must craft a decision that breaks new ground but is consistent with the principles laid down in common law. Judges also consider common law precedents from other jurisdictions and countries. While not binding, these may offer guidance as to the best way to resolve a dispute. Because of the law is constituted for the human beings with their right to live in the earth for their life and family.
A similar approach is taken when deciding the sentence to impose on someone convicted of a crime. The Criminal Code sets out the maximum prison term for each offence and sometimes a minimum sentence that must be served in custody. The maximum penalty is reserved for the worst crimes and the worst offenders, and there is a wide array of sentencing options – discharges, fines, probation or conditional sentences served in the community. The judge must take into account the seriousness of the offence, the offender’s background and prospects for rehabilitation, and the need to deter others from committing crimes. Judges also review the sentences other judges have imposed for similar crimes, to ensure the punishment is fair and fits the crime. In Canada, sentencing is not based on revenge but rather on the fundamental concepts of protection of the public, fairness, deterring others from committing crime and reforming the individual offender.
The judge has to decide the question of law and the jury to question of fact.
Social control and social morality:
The criminal law represents the rules of social control within a society. The court of law prescribes punishment for the wrongdoer. Punishment is used as an instrument for social control.
Different types of punishment: Why punishment is given:
I. Deterrent theory
II. Preventive theory
III. Retributive theory
IV. Reformative theory
* Probation
* Parole
V. Theory of Expiation
1. Capital punishment 4. Corporeal punishment
2. Deportation 5. Fine
3. Imprisonment
Deterrent Theory:
This punishment makes the criminal an example and warning to other like minded people to think about the consequences of committing crime and to push them to think that they will get like fate if they do wrong.
Preventive Theory:
There the purpose of the punishment is to prevent a repetition of crime by disabling or depriving the wrong doer of the opportunity of repeating or committing any more crime.
Retributive Theory:
When somebody commits wrong, some emotions and instinct of vengeance or retaliation acts in that man to whom wrong done or in the relatives of that man. The state by punishing that man gratifies that emotion of vengeance of the wronged man or his relatives.
Reformative Theory:
According to this theory crime is identified or considered as disease. So the purpose of punishing the offender will be only to cure his disease. Probation and parole system is prescribed by this theory.
By the case reference of in Indian, it will be easier to understand about it:
The Concept of Social Justice
The term social justice was first used in 1840 by a Sicilian priest, Luigi Taparelli d’Azeglio, and given prominence by Antonio Rosmini Serbati in La Costitutione Civile Secondo la Giustizia Sociale in 1848. It has also enjoyed a significant audience among theorists since John Rawls book. A Theory of Justice has used it as a pseudonym of distributive justice.
The concept of social justice is a revolutionary concept which provides meaning and significance to life and makes the rule of law dynamic. When Indian society seeks to meet the challenge of socio-economic inequality by its legislation and with the assistance of the rule of law, it seeks to achieve economic justice without any violent conflict. The ideal of a welfare state postulates unceasing pursuit of the doctrine of social justice. That is the significance and importance of the concept of social justice in the Indian context of today.
The idea of welfare state is that the claims of social justice must be treated as cardinal and paramount. Social justice is not a blind concept or a preposterous dogma. It seeks to do justice to all the citizen of the state. Democracy, therefore, must not show excess of velour by imposing unnecessary legislative regulations and prohibitions, in the same way as they must not show timidity in attacking the problem of inequality by refusing the past the necessary and reasonable regulatory measures at all. Constant endeavor has to be made to sustain individual freedom and liberty and subject them to reasonable regulation and control as to achieve socio-economic justice. Social justice must be achieved by adopting necessary and reasonable measures. That, shortly stated, is the concept of social justice and its implications. Citizens zealous of their individual freedom and liberty must co-operate with democracy which seeks to regulate freedom and liberty in the interest of social good, but they must be able to resist the imposition of any restraints on individual liberty and freedom which are not rationally and reasonably required in the interests of public good, in a democratic way. It is in the light of these difficult times that the rule of law comes into operation and the judges have to play their role without fear or favor, uninfluenced by any considerations of dogma or isms. The term social justice is a blanket term so as to include both social justice and economic justice.
The Problems of the Poor in India:
This vice of social inequality assumes a particularly reprehensible form in relation to the backward classes and communities which are treated as untouchable; and so the problem of social justice is as urgent and important in India as is the problem of economic justice. Equality of opportunity to all the citizens to develop their individual personalities and to participate in the pleasures and happiness of life is the goal of economic justice. The concept of social justice thus takes within its sweep the objectives of removing all inequalities and affording equal opportunities to all citizens in social affairs as well as economic activities. The problem of poverty and unequal distribution of wealth may be confined to the bigger cities and towns in India but the problem accentuated by the vice of social inequality existing in a gross form prevails in all of our villages. For instance, the harijans constitute a large class of landless laborers who are treated as untouchables by the rest of the community, who have no house to live in, generally no clothes to wear, who do not get food to eat & sometimes even decent drinking water is beyond their reach. The poor also have no access to legal assistance. Poor people are vulnerable to injustice. Poverty fosters frustration, ill feeling and a brooding sense of injustice. Democracy realizes that this problem which concerns a large number of citizens cannot be successfully met unless law is used wisely to restore balance to the economic structure and to remove the causes of economic inequality.
The Constitution of India and Social Justice
The Constitution of India has solemnly promised to all its citizens justices-social, economic and political; liberty of thought expression, belief, faith and worship; equality of status and of opportunity; and to promote among the all fraternity assuring the dignity of the individual and the unity of the nation. The Constitution has attempted to attune the apparently conflicting claims of socio-economic justice and of individual liberty and fundamental rights by putting some relevant provisions.
Article 19 enshrines the fundamental rights of the citizens of this country. The seven sub-clauses of Article 19(1) guarantee the citizens seven different kinds of freedom and recognize them as their fundamental rights. Article 19 considered as a whole furnishes a very satisfactory and rational basis for adjusting the claims of individual rights of freedom and the claims of public good.
Articles 23 and 24 provide for fundamental rights against exploitation. Article 24, in particular, prohibits an employer from employing a child below the age of 14 years in any factory or mine or in any other hazardous employment. Article 31 makes a specific provision in regard to the fundamental right to property and deals with the vexed problem of compulsory acquisition of property.
Article 38 requires that the state should make an effort to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice social, economic and political shall inform all the institutions of national life. Article 39 clause (a) says that the State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular provide free legal aid, by suitable legislation or schemes, or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
Article 41 recognizes every citizen’s right to work, to education & to public assistance in cases of unemployment, old age, sickness & disablement and in other cases of undeserved want. Article 42 stresses the importance of securing just and humane conditions of work & for maternity relief. Article 43 holds before the working population the ideal of the living wage and Article 46 emphasizes the importance of the promotion of educational and economic interests of schedule castes, schedule tribes and other weaker sections.
The social problem presented by the existence of a very large number of citizens who are treated as untouchables has received the special attention of the Constitution as Article 15 (1) prohibits discrimination on the grounds of religion, race, caste, sex, or place of birth. The state would be entitled to make special provisions for women and children, and for advancement of any social and educationally backward classes of citizens, or for the SC/STs. A similar exception is provided to the principle of equality of opportunity prescribed by Article 16 (1) in as much as Article 16(4) allows the state to make provision for the resolution of appointments or posts in favor of any backward class of citizens which, in the opinion of the state, is not adequately represented in the services under the state. Article 17 proclaims that untouched ability has been abolished & forbids its practice in any form & it provides that the enforcement of untouched ability shall be an offence punishable in accordance with law. This is the code of provisions dealing with the problem of achieving the ideal of socio- economic
justice in this country which has been prescribed by the Constitution of India.
Where Does The Solution Lie?
The solution to social injustice lies within us only. We should be aware of the expressions – the poor, the backwards, social justice which are being used to undermine standards, to flout norms and to put institutions to work. We should subject every claim whether it is made in the name of the poor, the backward, whosoever to rational examination. After it has been in effect for a while, subject every concession to empirical evidence. We should shift from equality of outcomes to equality of opportunities. And in striving towards that, nudge politicians to move away from the easy option of just decreeing some reservations, etc to doing the detailed and continuous work that positive help requires, the assistance that the disadvantaged need for availing of equal opportunities. We must bear in mind that if the majority disregards smaller sections in the community, it drives them to rebellion. We should try to refashion the policies of state on truly secular and liberal principles. The individual and not the group should be the unit of state policy.
Since no society is static, and social processes are constantly changing, a good legal system is one which ensures that laws adapt to the changing situations and ensure social good. Any legal system aiming to ensure good should ensure the basic dignity of the human being and the inherent need of every individual to grow into the fullness of life. The hope of the Indian masses does not lie in the legal system alone, but in their conscious awakening and fight for social and economic justice. Knowledge of their legal rights however, can be an important motivating force in this. Many NGO’s and individuals are emerging in different parts of the country to take up the cause of social change and change for a more just India, where justice will not merely be talked about in intellectual discussions on the intricacies of law, or written about in books, which the masses can’t read, or exchanged for good old money, but actually lived and experienced by the majority of the people.
Indian Judiciary’s Interpretation Of Social Justice:
In Oriental Insurance Co. Ltd. v/s Hansrajbai V. Kodala (2001) the Apex Court held that “The object is to expeditiously extend social justice to the needy victims of accidents curtailing delay – If still the question of determining compensation of fault liability is kept alive, it would result in additional litigation and complications in case claimants fail to establish liability of defendants – Wherever the Legislature wanted to provide additional compensation, it has done so specifically.”
The Supreme Court has firmly ruled in Balbir Kaur v/s Steel Authority of India (2000) that “the concept of social justice is the yardstick to the justice administration system or the legal justice and it would be an obligation for the law Courts to apply the law depending upon the situation in a manner whichever is beneficial for the society” as the respondent Steel Authority of India was directed to provide compassionate employment to the appellant. In Superintending Engineer, Public Health, U.T. Chandigarh v/s Kuldeep Singh (1997) the Supreme Court held that “It is the duty of the authorities to take special care of reservations in appointments as a part of their constitutional duties to accord economic and social justice to the reserved categories of communities. If ST candidate is not available, the vacancy has to be given to SC candidate and the reserved roster point has to be filled in accordingly”. In Ashok Kumar Gupta v/s State of U.P. (1997) it was held by the Apex court that “To give proper representation to SC/ST Dalits in services is a social justice which is a fundamental right to the disadvantaged. It cannot be said that reservation in promotions is bad in law or unconstitutional.”
In Consumer Education & Research Centre v/s Union of India (1995) it was held that “Social justice is a device to ensure life to be meaningful and livable with human dignity. State has to provide facilities to reach minimum standard of health, economic security and civilized living to the workmen. Social justice is a means to ensure life to be meaningful and livable.”
So we can see that the Supreme Court has always stepped in to protect the interest of the Indian citizens, whether it has been has the case of consumer protection or claiming insurance or be it representation of suppressed classes. It has used the medium of social justice as an umbrella term to deliver justice.
Notwithstanding, on the behalf of the justice’s justice, role, decisions may has been claimed by the goal of law or by the jurisdiction. But from the wrong justification can be restorative, by the actual goal of law and jurisdiction and by the amendment of constitution.
When a crime occurs in contemporary society we suppose certain things will happen:
- We expect the state authorities to take charge of the process of dispensing justice.
- We assume that, if possible, the perpetrator will be tried in a law court.
- We expect that if the accused person is found guilty, their fate will also be determined in a court by a judge or magistrate.
- We presume that the offender will be subjected to some form of punishment.
These assumptions structure our thinking about criminal justice. Although there is much debate about the precise form which criminal justice should take, and about how its interventions can be justified, such debate tends to take place amongst people who share these basic assumptions.
Since the 1970s, however, some criminal justice practitioners have been experimenting with new ways of intervening in the aftermath of a crime, in which some – and perhaps even all – of these basic assumptions seem to be rejected. In particular, in these experiments:
- Key decisions on what to do about a crime are usually made outside of court by small groups of ordinary citizens, including the victim and offender.
- The focus is less on punishing offenders, more on persuading or obligating offenders to repair the harm they have caused through their criminal act.
In addition, in some of these experiments, practitioners prefer to bypass the process of legal trial and conviction altogether if the perpetrator informally admits involvement in the crime. In a small number of these experiments, practitioners prefer the entire process to take place without state involvement.
Restorative justice, accordingly, is becoming a major topic in academic and public debate about the future of criminal justice. This lecture is about the terms in which restorative justice has been presented and understood in such debate. Many proponents of restorative justice, I suggest, are inclined to present it as a new ‘technique’ for dealing with offenders. They have tended to claim that this new technique outperforms conventional penal and therapeutic methods of intervention in preventing reoffending and producing victim satisfaction with the criminal justice system. Considerable effort has been put into evaluative research which lends support to these claims. This way of presenting restorative justice has resulted in considerable political success, in that governments have been persuaded that restorative interventions should play a central role in criminal justice systems. Although some commentators have raised concerns about what they see as a lack of safeguards for suspects and offenders in restorative justice, such concerns have done little to dent the growing enthusiasm amongst politicians and policy-makers for this new way of doing justice.
In this lecture I will argue that, although it has led to ‘political success’, presenting restorative justice as technique for preventing reoffending and generating victim satisfaction has undermined the chances of the restorative justice movement achieving its more important and interesting goals. I will show that restorative justice has the potential to disturb taken-for-granted assumptions about crime and justice. What restorative justice has to say about the meaning of crime and justice is of huge importance and interest, even though some of it is quite problematic. However, what it has to say is likely to be unheard in public debate, which is revolving around a very narrow understanding of restorative justice and an increasingly limited set of questions.
As groundwork for this argument, is it is necessary to provide a brief description of the most common forms of restorative justice practice and an indication of their rationales.
Restorative Justice Practices and their Rationales
The three most common practices that have attracted the label ‘restorative justice’ are Victim-Offender Mediation, Family Group Conferencing, and Circles.
Victim-Offender Mediation
The process of victim-offender mediation has been used in North America and Europe since the 1970s.[1] It offers victims of crime an opportunity to meet in a safe setting with the person who has harmed them. The meeting is organised and structured by one or two trained mediators. Mediators allow and encourage victims to tell offenders about how the offence affected their lives and to ask offenders questions which victims often have, such as why they were target of an offence. Victims are also able to take part in developing a restitution or reparation plan, that is, a plan of action which the offender should undertake to help repair the damage they have caused and to reassure the victim that no further offences will be committed against them. Offenders are given the opportunity to account for their behaviour, to tell their story and to contribute to the construction of an action plan for repairing the harm they have caused.
According to its advocates, victim-offender mediation has numerous beneficial outcomes. In particular, it helps victims recover from a traumatic experience. Victim recovery is fostered in a number of ways.
- First, because victims directly participate in the decision about what will be done to repair the harm resulting from the offence, there is a strong chance that the victim’s actual needs for reparation will be met.
- Secondly, the very process of having a say in what happens about the offence promotes victim recovery. The thinking behind this claim is that one of the reasons why being a crime victim is so traumatic is that it robs them of their sense of autonomy and control over their own lives; by being empowered in the process by which the offence is dealt with, victims can regain a sense of autonomy and personal power.
- Third, meeting with the offender and being able to discuss the offence with them and reach an agreement on what should be done about it brings a sense of closure to victims which they do not obtain when their case is dealt with through more conventional criminal justice procedures.
Advocates of this process argue that it also has benefits for offenders. It enables them to learn about the real impact of their behavior on fellow citizens, a learning process which can be painful but is ultimately beneficial. Also, by giving offenders an opportunity to participate actively in deciding what should be done to repair the harm they have caused, and to undertake reparative acts voluntarily, the process enables offenders to redeem themselves. Additionally, it enhances their chances of being accepted back into the community from which they have become separated as a result of their criminal behavior.
The process of victim-offender mediation can occur at any stage of a criminal justice process. It is often triggered by cases being referred to it by agencies in the conventional criminal justice process as part of some diversion scheme. For instance, the police might offer victims and offenders the option of victim-offender mediation as an alternative to sending a person who has admitted involvement in an offence to court. Alternatively, it can be integrated with conventional forms of case ‘disposal’, e.g. a magistrate or judge might suggest that victim-offender mediation occur as part of a probation order. Or, it can take place alongside and in addition to conventional processes, e.g. offenders serving prison sentences might take part in victim-offender mediation prior to being released.
Family Group Conferencing
A second form of restorative justice practice is family group conferencing. This was introduced into the youth justice system in New Zealand in the 1980s as a form of pre-trial diversion from the conventional criminal justice process. It is purportedly based upon the dispute resolution traditions of the Maori. It was introduced, in a slightly different form, into the criminal justice system in Australia in the early 1990s and from there spread to the United States, the United Kingdom and elsewhere.
Conferencing is similar in many respects to victim offender mediation. In conferencing, however the number of participants is extended to include family members or supporters of victims, and family members and community contacts of offenders where they are interested in supporting the offender’s reparative efforts. The term mediator tends to be replaced by ‘facilitator’. And, there is a greater emphasis in family group conferencing on construction of an action plan which will help the offender – quite often a young offender – not only to repair the damage caused by the crime but also change their way of life so that they have less chance of reoffending.
In some places, family group conferencing is heavily influenced by John Braithwaite’s theory of reiterative shaming. Consequently, facilitators of family group conferences attempt to steer the interaction between participants in such a way that strong disapproval of the offender’s behavior is expressed, but in a context of respect for the offender as a person and followed by gestures of care and love for the offender. According to Braithwaite, who is amongst the most theoretically sophisticated promoters of restorative justice, such a process works extremely well as a form of social control. It puts crime off the ‘menu’ for most people, without subjecting them to any of the harsh, exclusive, punitive measures we currently rely upon to deter would-be offenders. Through this link with Braithwaite’s theory of reiterative shaming, restorative justice has also become associated with broader communitarian and republican theories of justice.
Retrieving a lost discussion
I have suggested that restorative justice proponents have been politically smart in presenting the concept and the case for it, in terms that governments and the public can identify with. By adopting such a strategy, promoters of restorative justice have ensured that the practices of restorative justice move from the margins towards the mainstream of criminal justice. I now want to suggest that this success has been bought at a very high price. I argue that, by encouraging policy-makers and the public to think of restorative justice as a technique for preventing re-offending and providing victim satisfaction, the restorative justice movement actually obscures what it is that really distinguishes restorative justice from more conventional ways of handling crime. By doing this, the restorative justice movement makes it less likely that it will achieve its broader and more important goals. To introduce this argument, I will look briefly at the way one early exponent of restorative justice envisaged the phenomenon.
In the remainder of this lecture, I want to provide just a brief indication of the sorts of implications this broader and deeper reading of restorative justice practices might have for our thinking about crime and justice. I will do this by drawing out some of the ways in which restorative justice practices might disturb taken-for-granted assumptions about such fundamental matters as:
- what crime means;
- what it means to be a victim of crime;
- what it means to do justice in the aftermath of a crime;
- whose obligation it is to deliver justice;
- how society should relate to those who break its fundamental rules;
- the sorts of values that should guide, and be reflected in, our handling of crime.
Whilst much of my analysis is drawn from the writing of restorative justice exponents such as Zehr, it should be made clear that my understanding of the implications of restorative justice probably departs in many ways from theirs, as does my stance towards it.
Restorative Understandings of Crime and Justice
The meaning of crime
Our legal and penal institutions encourage us to see crime in a particular way. We tend to regard crime as a wrong committed against an abstract entity such as the state or society or the crown. There is, of course, a logic to this. The state lays down certain laws which basically say this is the bottom line of what we – as a society – will allow: we will not permit people to hit others, dishonestly appropriate their property, have sex with them without their consent, and so on. Crime is behavior which infringes these rules. And, since the rules are made by the state on behalf of society, we tend to define crime as a wrong committed against the state or society.
However, we have become so used to constructing crime in this way that we often forget that there are other dimensions to crime. If we look at it from different perspectives, we see important facets of it which are hidden or obscured by our legalistic gaze. Restorative justice brings some of these other facets of crime to the forefront, and hence disturbs our conventional way of seeing it. Perhaps in order to grasp this point we might imagine crime as a pyramid. We have been so used to seeing this pyramid from one point of view, that we begin to define crime as what we see from this point of view. Restorative justice rotates the pyramid around a little, so that we begin to realize that there are facets of crime which were obviously there all the time, but which we have not included in our definition.
What are these hidden aspects of crime which restorative justice brings into focus?
In the practice of restorative justice, crime is constructed less as lawbreaking and a wrong against society, more as a violation of a clearly defined set of people and relationships. In fact, in restorative justice, a lot of effort is put into getting the offender to see that what they have done is wrong, not simply or even mainly because it is a breach of society’s rules, but because it causes enormous harm to real human beings whom they can personally meet. Moreover, attempts are made to get offenders to understand that the damage caused by their behaviour extends far beyond the material damage of the destroyed property or broken limb, important as that damage is. The offender is asked to see that in regarding the satisfaction of their desires and whims as more important than respecting the rights of others, they have disturbed the right relationship between people. According to some proponents of restorative justice, it is this destruction of right relationships which constitutes the essence of crime.
Liability:
He who commits a crime is said to be liable or responsible for it. A man’s liability consists of those things which he must do or suffer because he has failed in doing what he have ought to have done. Liability has its sources in the supreme will of the state. Liability is the consequence of wrong and sometimes remedial.
Professor Salmond:
He said that, “ Liability and responsibility is the bond of necessity that exist between the wrong doer and the remedy of the wrong.”
Professor Salmond observes a man’s liability consists in those things which he must do or suffer, because he has already failed in doing what he ought to do.
Prof. Markby: “The word Liability is used to describe the condition of a person who has a duty to perform.”
Professor Austin: “Liability are those certain forbearances, commissions or acts, together with such of their consequences, as it was the purpose of the duties to avert, are imputable to the persons who have forborne, omitted or acted. Or the plight or predicament of the persons who have forborne, omitted or acted, is styled imputability.”
Liability is the bond of necessity that exist between the wrong doer and the remedy of the wrong. Where remedy is civil one , the party wronged has a right to demand the redress allowed by law and the wrong doer has a duty to comply with this demand.
There are two main branches of Liability.
1. Civil Liability
2. Criminal Liability
1. Civil Liability:
A civil liability gives rise to civil proceedings whose purpose is the enforcement of certain rights claimed by the plaintiff against the defendant. Examples of Civil proceeding are an action for recovery of a debt, restoration of property, the specific performance of a contract, etc. Civil liability is called remedial liability. The basic of remedial liability is to be found in the maxim ubi jus ibi remedium which means where there is a right there must be a remedy . When law creates a duty it ensure its fulfillment also.
Purpose: The purpose of the civil liability is to ensure the right and gives the remedy.
Remedy given in case of civil liability:
Specific performance: In case of civil liability the Court give the specific remedy. There is some exception where the Court cannot give the order of specific performance.
a) Where the duty is imperfect.
b) If the work is impossible to do.
c) If it shows unwise and inexpedient.
Other remedies:-
i) Compensation: Court can give order for compensation.
ii) Damages: Court can give order to fulfill the damages.
iii) Injunction: The Court can forbade to do any particular work by the power of injunction.
iv) Repayment: In contract case if one party take money from other then the party have to repay the money.
v) Restitution: Court may tell to restitute from the work.
2. Criminal Liability:
Criminal liability is the liability to be punished in a criminal proceeding Criminal liability also called penal liability. The basis of penal liability is to be found in the maxim “actus non facit reum nisi mens sit ria” which means that act does not along amount to crime unless it is accompanied by guilty mind.
Purpose:
The main purpose of penal liability is either directly or indirectly to punish the wrong doer.
Remedy of Criminal Liability:
a. Capital Punishment: eg: Death sentence
b. Deportation
c. Imprisonment: simple or rigorous.
d. Fine
e. Corporal Punishment.
Measurement of Civil Liability:
To measure civil liability two things is to be observed.
a. Magnitude of the wrong
b. Size of the wrong
Measurement of Criminal Liability:
According to Salmond three elements should be taken into consideration to measure the Criminal liability:
a. Motive of the offence
b. The magnitude of the offence
c. Character of the offender
General condition of Liability:
The following conditions must be satisfied before liability can arise.
a. Act:
Prof. Salmond said, “An act is any event which is subject to human control.”
Prof. Austin said, “An act is a bodily movement caused by violation which is a movement of the human will.”
The Classification of act;
1. Positive and Negative act
2. Intentional and Unintentional act
3. Internal act and external act
b. Menes are or guilty mind:
A fundamental principle of criminal law is that a mere act does not constitute a crime. It requires a guilty mind. Men area is defined as the mental element necessary to constitute criminal liability.
c. Consequence and Circumstances:
Time and place of the commission of the act is also taken into consideration. Sometimes we see that the individual bound to do crime for his safety.
d. Character:
Character is a great factor for the measurement of criminal liability. When man do any crime, he may not do it intentionally. Then the court observe his character. To see his character the Court gives him punishment.
Another kinds of Liability:-
1. Strict Liability: – Strict liability is that liability where we need not to prove the manes are.
a. Mistake of law
b. Mistake of fact
c. Inevitable accident.
a) Mistake of Law: One must know about the law. There is a Latin proverb “Ignorantia juris neminem excusta”. It means that ignorance of law is no excuse. Law for the goodness of society. Law is that which controls the human conduct when mistake of law happen administration of justice is not ensured.
b) Mistake of fact: When mistake of law happen it may be mistake of fact also.
c) Inevitable accident: Inevitable accident is that accident which cannot be avoided.
2. Vicarious Liability: Generally a person is liable for his own act. But some time man is liable for others act. This type of liability is vicarious liability. Ex- A master is liable for his servant act.
3. Damnum sine injuria: Damage without injur Injuria sine damno: Injury without damage.
4. Corporation Liability: – A corporation is an artificial or fictitious person constituted by the personification of a group or a series of individuals. A corporation can also be liable.
Ubi jus ibi remedium:
This maxim means that “Whenever there is a legal right there is a legal remedy.” sometimes it is expressed as there is no wrong without a remedy.”
Malice:
The malice is used in two quite different senses
(i) in its ordinary sense it means ill-will, spite, hatred, evil motive, etc. Such malice is called express malice or actual malice or malice in fact.
(ii) malice in law means a wrongful act done intentionally without just cause or excuse.
J. Bailey: “Malice in common acceptation means, ill will against a person but in its legal sense it means wrongful act done intentionally without just cause or excuse.”
Motive:
Motive has been described as ulterior intent. Motive means will of doing something. In case of tort motives are irrelevant.
Intention:
Winfield: “Intention signifies full advertence in the mind of the defendant to his conduct which is in question and to its consequence together with a desire for those consequences.”
Example: When I through a stone at you with the desire that it should hit you and accordingly it hits you. I have intentionally thrown the stone upon you. Desire of particular consequence.
Such Cases- Natural consequence of your act.
Malfeasance, Misfeasance and Nonfeasance:
1. What Law does not permit. Malfeasance is the commission of an unlawful act, for example trespass.
2. misfeasance is the improper performance of some lawful act. What is just but done unjustly.
3. Nonfeasance means failing to perform an obligatory act. What is yours legal duty- If you fail to perform that.
Fault:
Salmand was of the view that liability should always be based on fault. A man should be held liable for a wrongful act only if he has done it either intentionally or with culpable negligence. There is no justification to pay a certain amount to the injured party if the act of injury was unintentional.
Negligence:
Negligence is the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff. In modern law the word negligence has two meanings;
- It indicates the state of mind of a party in doing an act.
- It means a conduct which law deems wrongful.
Negligence is a type of legal fault as it sets an objective standard to which a person behavior must conform.
What it means to be a victim of crime
We have already seen that restorative justice challenges our assumptions about who or what is the victim of crime. In conventional criminal justice the victim is an abstract entity: society, or the state, or the people or the crown. Hence, criminal law books often state that one of the key distinctive features of criminal law, compared with private or civil law, is that it redresses wrongs committed against society, whereas private law redresses wrongs committed against individuals. Restorative justice puts this platitude in question. It draws attention to the fact that the victim of crime is the person – or persons – directly harmed by the offence, with members of that person’s community being secondary victims. Whilst restorative justice proponents acknowledge that the public at large does suffer as a result of crime, their practices draw attention to the importance of the private wrongs of crime.
However, the practices of restorative justice also disturb our understanding of what it is to be a victim of crime in deeper ways. Whilst we readily acknowledge that crime causes harm and suffering to real people, we tend to have a very physical or material perception of the harm that crime causes. What we see are people losing property, being injured or maimed, or even killed as a result of crime.
Restorative justice practices, in encouraging victims to define the wrong that has been committed against them in their own terms, and to talk about it in depth, often reveal aspects of victimization which are hidden when victimization is handled through our conventional legal processes. What often comes to light is that being a crime victim is deeply traumatic, less because of the physical or material damage that is experienced, more because of the disturbance it causes to our sense of order and meaning. As Howard Zehr puts it:
Crime is devastating because it upsets two fundamental assumptions on which we base our lives: our belief that the world is an orderly, meaningful place, and our belief in personal autonomy. Both assumptions are essential for wholeness.[2]
Of course, we need not accept the restorative view of victimhood as correct or progressive. In other work which I am undertaking, I am looking at it quite critically. My point here is simply that the practices of restorative justice do seem to reveal aspects of the victim experience which challenge notions that we might have about what it means to be a crime victim, and these challenges are of considerable interest.