The History of Restorative Justice in the UK - Essay Example

History of Restorative Justice Despite extensive research studies and plethora of definitions of restorative justice, the concept itself is still ambiguous (Gavrielides, 2011, 2). However, Gavrielides’ definition is widely accepted who refers restorative justice as, “an ethos with practical goals, among which to restore harm by including affected parties in a (direct or indirect) encounter and a process of understanding through voluntary and honest dialogue”(Gavrielides, 2007, 139). He argues that restorative justice approaches conflicts in a different manner; moreover, its control is not only retaining but also rehabilitating in nature Gavrielides, 2007, 139). Restorative justice practice consists of “direct and indirect mediation, family group conferences, healing/sentencing circles and community restorative boards” (Walgrave and Bazemore 1991; Crawford and Newburn, 2003; Gavrielides, 2007 cited in Gavrielides, 2011, p.2). The term “restorative justice” was coined in modern justice literature and practice during the 1970s (Yantzi, 1998).Van Ness and Strong (1997, p.24) assert that Albert Eglash introduced the term in his 1977 article, but later in (Van Ness and Strong, 2010) he referred to the research of Skelton (2005) who argues that 1977 chapter was reprinted from an article that Eglash published during 1958-59(cited in Gavrielides, 2011, p.2). From Early societies to 500 AD Raymond Michalowski divides human societies into to broad historical categories: ‘acephalous’ (Greek word meaning headless) and ‘State’. Acephalous societies are considered to be earliest human aggregations ever recorded in history of human kind. Main characteristics of these societies were their diffuse structure, blood-related organization, and strong affiliation with group values (Michalowski, 1985). These societies were also the earliest kinds of human community that was there for some 30,000 years. Arthur Hartmann asserts that acephalous societies can be differentiated between nomadic tribes and segmental societies. They were small in size, economically cooperative, and comparatively egalitarian (Hartmann, 1995). Rene Kuppe states major attributes of acephalous societies: “a close relationship between these societies and their lebensraum, a lack of organization as state and social stratification, and the dealing with conflicts within a society that is not based on institutional force by the state”(Kuppe,1990,p.10). Michalowski asserts that these societies laid pressure on potential deviants through promoting collective responsibility and group emotions that in turn decreased the chances of egoistic interests. And then, even if deviance happened, acephalous societies used to deal with it without formal legal system. They worked towards regaining community’s lost balance rather than towards victim or offender (Gavrielides, 2011, p.2). One of the best examples of ancient victim restoration is described by historian Roy Franklin Barton. He studied the acephalous society of Ifugao of Northern Luzon in the Philippines. He asserted that blood-relation of all parties were eager for a peaceable settlement if they could get to it in an honourable manner. Neighbours and co-villagers approached conflicts like this because they didn’t want to destroy their neighbourhood due to internal conflict. Instead of fighting, they communicated claims and counterclaims by the monkalun (mediator) until they reached settlement grounds (Barton, 1919, p.94). Similarly, Michalowski believe that ancient people regained their lost balance in acephalous societies in four ways: retribution, ritual satisfaction, blood revenge, and most often used restitution. In contemporary times, meaning of restitution varies, for instance, it can imply restoration, repayment, amends, compensation, or forgiveness. Though community members in ancient acephalous societies perceived ‘victims’, ‘offender’, and ‘anti-social’ behaviour in a different way, restitution was understood in its true and complete sense. Michalowski stressed that their community relationship and victim-offender interaction used to be personal. As a result, community led towards stronger bonds and sometimes reduced deviant behaviour. It is important to note that they approached deviance as a community problem, and community failure not just a case for offender to pay or restore. Therefore, recuperation needs active involvement both from offender and victim. The process of settlement was most often a restorative one, while major role of mediator was acquired by the community through its representatives. By adopting this approach, they believe offender was most often ‘rehabilitated’ and the potential criminal ‘deterred’. In case of victim, his feeling of loss was restored and distorted balance in the community was regained (Michalowski, 1985). There is some evidence provided by historian Adamson Hoebel who claimed that some Eskimo villages avoided direct confrontation, though blood revenge was acceptable in case of homicide, but rarely practiced (Hoebel, 1954, p.83). He concluded that ancient law worked as a balance creator and acquired the responsibility of keeping social body in good health, just like a doctor who is responsible for keeping human body healthy (Hoebel, 1954, p.279). To conclude, acephalous societies used restorative practices as a central route to peace, order, and conflict resolution. This paradigm major concern was majorly to meet victim’s needs, and then to reinstate their lost strength and status. On the other hand, community took special care to be just and valuable for offenders. The response to crime aimed at educating the offender, and through victim’s forgiveness and community’s assistance, most offenders were ‘rehabilitated’. The Middle Ages: 500-1350 and 1350-1500 Restorative justice system started to lose its power with the emergence of centralized ruling system (Kuppe, 1990). In this system, ruler, kind or administrative leader had the upper hand in management of people’s affair. Stephen Schfer (1968) observed that needs of victims were replaced by kingdom’s interests, and thus foundation of conflict resolution. During the second phase of Middle Ages, while acephalous societies were transitioning into ‘State’ societies, conflict were increasingly seen as violations of king’s right instead of individual’s. Contrary to the constitution and restoration possibilities in the first era, it didn’t remain the norm any longer in the second era. During this era, ‘State’ and church powers became stronger, victims lost their role in the conflict resolution process, which was fully controlled by the ‘State’ officials (Gavrielides, 2011, p.15).There is a consensus between historian that restorative practices began to fade in Europe during the Middle Ages, and major transition took place during the 9th century (Fry, 1951; Gillin, 1935; and Laster, 1957 cited in Gavrielides, 2011, p.7). Moreover, they believe that restorative justice as a formal system of criminal justice was completely eroded by the 12th century (Rossner, 1989). The Middle Ages are defined as “the time in European history between classical antiquity and the Italian Renaissance-from the late 5th century AD to about 1350, sometimes to the later part of this period (1100) and sometimes extended to 1450-1500. The Middle Ages are usually divided into two timeframes: 500 to 1350 AD and 1100 to 1500 AD” (Random House Gavrielides, 2011, p.8).During the first period of Middle Ages, restorative practices were still implemented in a way that served victim, offender and community, however, not as a main conflict resolution paradigm (Jacob, 1970; Laster, 1975; Schafer, 1968 cited in Gavrielides, 2011, p.8). A sense of collective responsibility became non-existent and social duty to abide by social rules became more abstract. Historians Henry Maine observed, “With the coming of the ‘State power’ the individual was steadily substituted for the family as the unit of which civil laws take account” (Maine, 1905, p.78). It is argued that in the first era of Middle Ages, the concept of crime against a person or his blood-relation was considered primary and offense against the common weal was secondary, even when it is about the most serious crimes (Pollock and Maitland, 1898, p.46). The idea of offense against an individual started to fade in a gradual manner. For instance, the idea of infangthief was coined that imposed two payments of composition for harm (other than homicide): bot to the victim and wite to the king or authority (Pollock and Maitland, 1898, p.451). Near 1187 AD, when Ranulf Glanvil treatise was written, the victim’s right to receive bot was also constrained. During first timeframe of Middle Ages, victims were able to claim compensation and reimbursement in some limited kind of circumstances. However, there is absence of some solid evidence to ensure the presence of laws to enforce it (Gavrielides, 2011, p.8). During the second timeframe of the Middle Ages, ‘victims’ were completely isolated from the system of criminal justice. Gilbert Geis observed and documented that kings established their rule and separated conflict resolution process and involved parties through an absolute ‘State’ controlled criminal justice system (Geis, 1977). For example, when Frankish Empire divided through the treaty of Verdun during 843 AD , repayment to the victim was replaced by a fine that was payable to the king rather than victim (Gavrielides, 2011, p.9). Several historians assert that the Anglo-Saxon and Germanic rulers from second era of Middle Ages made the transition of justice administration as a profitable institution that served and profited the ‘State’ rather than compensate ‘victim’ (Holdsworth, 1956, p.358).John Jeudwine quoted the example of Henry III (1255 AD) who ordered his judges to impose monetary punishment when in need of money (Jeudwine, 1917, pp.155-156). During 13th century, revenue collected in the form of monetary penalties was one sixth of the king’s total revenue (Gavrielides, 2011, p.9). In Europe, it is believed that this change was caused because of kinships’ increased power as trans-local and trans-tribal institution (Barnett, 1977). They merged tribes and vast lands and changed social structures form ‘communitarian/tribal’ to ‘hierarchical/feudal’ (Gavrielides, 2011, p.9). Braithwaite (2002) observed that, “long before the Inquisition, church leaders were among those who sought to secure their power through retributive affliction on the bodies of their flock” (p.7). From 1500-1970s With the end of the 12th century, the ‘State’ took over the justice system in Europe (Christie, 1977 Gavrielides, 2011, p.10). Michalowski observed that formal law originated as a source of controlling property and relation, therefore, history of law and idea of individual property are tied together from the start (Michalowski, 1985). Bentham agrees with him when he states that, “property and law are born together and die together” (Gavrielides, 2007). Consequently, rights of ‘State’ dominated the right of ‘victim’ and role of restorative justice was terminated in the administration of justice. Another change that emerged from this was the division of law among ‘public’ and ‘private’. As a result of this change, crime was most often dealt as a crime against the State and public interest, on the other hand, crime against individuals were treated as ‘torts’. It was the time when the terms “offender” and “victims” were coined. However, it is important to note that irrespective of the cessation of restorative practices, main ideas of concept were not completely discarded. Some infrequent implementation was existent in some form, however, it was not official or supported by ‘State’ (Gavrielides, 2011, pp.9-11).For instance, ‘Malicious Damage Act 1861’ was one of its kind since it incorporated compensation to the damaged party. Restorative justice practices were highlighted in six international prison congress meetings which were held during 1879 and 1900(Jacob, 1970). During the last decades of 18th century, a great emphasis was laid on the restoration of restorative practices by the likes of Raffaele Garofalo(1851-1934), Stephen Schafer (1895) and other criminologists and congressmen(Gavrielides, 2011, p.11). School of Legal Positivism-Third Era The philosophical school of Legal Positivism of third era in human society came as a natural proceeding of the development of basic concept, and as the coup de grace for restorative justice. Evidence from this era suggests that restorative justice was not completely abandoned as they applied it infrequently; however, the new legally positivistic framework was quite predominant. During this era, restorative justice was limited and practiced within informal settings. The king and the officials appointed to regulate state and individuals limited restorative justice under law without any official provision of resources. In this way, community and voluntary organizations served as a main driver of implementation (Gavrielides, 2011, p.16). The idea of restorative justice is not new. In England, foundations of Anglo-Saxon law originated from it before the Normans arrived. It has been a part of several earlier legal traditions including Roman law. Moreover, it was also integrated in the earliest known written laws, the Code of Hammurabi of c.200 BC (Van Ness, 1989). In Africa and Asia, majority of the traditional justice systems were based on restorative justice. Similarly, aboriginal and Native American justice system was founded on restoration and reparation. In those societies, justice between people had inextricable association to their religious and everyday living framework. The philosophy of restorative justice encompasses a diverse range of human characteristics, such as, healing, compassion, mercy, and forgiveness, in addition to mediation, reconciliation, and sanction when applicable (Graef and Marian, 2000, 22). After the Norman Conquest, William the Conqueror shifted the justice system of England from restorative model. He referred crime as interruption of ‘the king’s peace’ and imposed fines on offenders in order to collect money for kin’s pocket. English monarchs invested more and more revenue from reparative justice into their kingdoms for financial and political concerns. This regulation of judiciary reinforces their power by associating local justice back into the monarch. King justified this intervention on the premise that crime done by an individual extends beyond his family as it affects the community at large. This model of justice argues that crime damages the state; therefore, the state must react by punishing the offender. As a result, legal procedures in today’s world customarily start with some version of ‘Rex/Regina v’ or ‘The People vs’(Graef and Marian, 2000, 22). The Time of Rise-1970s The progress and development in theoretical and practical fields during 1970s led the restorative justice to a full circle. It is evident that during 1970s, criminologists around the world started to think that contemporary criminal justice system is lacking. In the beginning, the movement was in line with the Abolitionists ideals, however, it adjusted rather complimented the punitive criminal justice system. It was the decade when they started considering alternative paradigm (12). Arguably, three 1977 articles by Randy Barnett (13) Nils Christie (14) and Albert Eglash(1977) elicited interest in restorative justice. They were among the pioneers of identifying that a crisis is taking place in criminal justice system and suggesting an alternative paradigm that could replace the traditional one. Basically, they led us to the development of modern idea of restorative justice (Gavrielides, 2011, pp.2-12). Eglash(1977) asserted that there are three types of criminal justice: retributive, distributive, and restorative. During 1980, Howard Zehr(1990) asserted that modern criminal justice system sees it through the retributive model that regards crime as law breaking and justice as regulating with blame and punishment. According to Gavrielides (2011, p.16) it is evident that the term restorative justice may have coined during 1970s, the idea and its practice can be tracked in the early human civilizations. These practices were not limited to a certain place or country; it has been with us since we thought to live collectively. It has been a dominant paradigm of criminal justice throughout human history. In modern world, it seems that restorative justice has again completed its full circle. 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