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). Mic