Addressing the Paradox of Restorative Justice: The Victims’ Directive & the collapse of labels “
National laws do not exist in a vacuum. Independently of whether we subscribe to national law theory or legal positivism, we must accept that all laws are born and indeed contextualised within the given society that they are meant to regulate. This is also true for regional laws such as those passed by the European Commission. In November 2015, the Victims’ Directive came into force to strengthen the position of the victim in criminal proceedings while adding new rights and safeguards. This super-law was the outcome of decades of campaigning, political battles and lobbying by victims and feminists groups. Civil liberties and human rights NGOs also play a key role in bringing this law to what we have now come to call “European society”.
Within this regional law and European society, restorative justice is regulated so that it is provided safely, consistently and according to standards. Here, I identify a paradox (2015a).
We tend to forget that the criminal justice system is a modern construct. In other periods and cultures, the response to, what we call today, ‘delinquency’ did not fall within the legal positivistic understanding of ‘crime’ adopted by our modern Western societies. In fact, what we understand today as ‘crime’ was seen by the early communities as a conflict between individuals. Consequently, the terms “offender” and “victims” were coined as a result of this legal positivistic framework.
Even more importantly, we also seem to forget that in the pursuit of justice, those who had been hurt, and we now call victims, used to have a central role in the decision making process. In fact, there is a general agreement in the literature that in Europe, victims’ roles in criminal proceedings started to deteriorate only during the Middle Ages, and that the major change occurred in the 9th century (Fry, 1951). In Europe, this process was complete by the end of the 12th century (Rossner, 1989), when the ‘State’ had taken control of conflicts (Christie, 1977). Michalowski (1985) claimed that formal law emerged as a means of controlling property and relations, and that the concept of individual property and the history of law were from then and on inseparable.
In consequence, as the rights of the ‘State’ gradually overshadowed those of the victim and the individual, the criminal justice system was no longer victim-focused. What also emerged from this development was the division of law between ‘public’ and ‘private’. According to this new paradigm, ‘crime’ was mostly dealt with as an act against the State and the public interest, while offences against individuals’ rights were pursued separately as ‘torts’. The terms “offender” and “victims” started to be used and the criminal justice system became state-focused and state-led. A paradox was thus created whereby the criminal justice system was structured around the State without victim involvement.
It is my view (and indeed of many others) that one of the key reasons that restorative justice resurfaced was to empower all those involved in harm to face what happened and collectively find a way forward (and even try to restore). Within this understanding of “parties in conflict”, the modern criminal justice labels of “victim” and “offender” collapse (Gavrielides, 2015b). Therefore, I must ask how reconcilable is the new super-law with the original intentions of restorative justice?
In my latest edited collection "Offenders no More", my distinguised authors challenge the notion of labels while helping us refocus on what Nils Christie was interested in and that is the restoration of the harm and not the punishment of the label (Christie, 1977).
The notions of labels, how reconcilable they are with restorative justice (even when integrated in super-laws for the protection of victims) as well as how we move forward will be the topic of my public lecture at the European Centre of Excellence at the University of Alberta on 22nd February.
As the restorative justice movement leaves the era of innovation and enters the new reality of integration, I propose a new paradigm of co-existence with existing criminal justice priorities and philosophies (Gavrielides, 2015c).
Gavrielides, T. (2015a). “Repositioning Restorative Justice in Europe: The Victims’ Directive”, Special Issue – Restorative Justice – Victims and Offenders Journal. DOI: 10.1080/15564886.2015.1105342