scholarly journals All Roads lead to Property: Pashukanis, Christie and the Theory of Restorative Justice

2017 ◽  
Vol 16 (3) ◽  
pp. 187
Author(s):  
Raymond Koen
Keyword(s):  
Criminal Justice ◽  
Restorative Justice ◽  
Western World ◽  
Legal Form ◽  
Legal Subjectivity ◽  
Role Of The State ◽  
Core Elements ◽  
Form Theory ◽  
Theory Of Law ◽  
Commodity Form

Nils Christie is acknowledged generally as the theoretical founding father of restorative justice. Evgeny Pashukanis may be taken as the premier Marxist theoretician of law. This essay represents an endeavour to read Christie through the lens of Pashukanism, that is, to comprehend the theory of restorative justice developed by Christie in relation to the general theory of law formulated by Pashukanis. The early part of the essay is expository: firstly, it sets out in abbreviated form the fundamental tenets of Pashukanis's so-called commodity form theory of law, with some attention being given to the Pashukanist approach to criminal justice; and secondly, it explains the core elements of Christie's theory of restorative justice, including his critique of western criminal justice and his advocacy of a system of "conflicts as property" as the answer to the crisis of criminality which plagues the western world. The latter part of the essay is critical: it compares and contrasts Christie's proprietary theory of restorative justice with Pashukanis's commodity form theory of law. On the one hand, it is argued that there exists a remarkable theoretical concordance between Christie and Pashukanis in the sense that Christie's idea of criminal conflict as property constitutes a non-Marxist vindication of Pashukanis's analysis of the legal form. On the other hand, it is posited that because Pashukanis proceeds from a Marxist perspective and Christie does not, there remain crucial areas of difference between them, especially as regards the historicity of the legal form, the concept of legal subjectivity, and the role of the state. In the light of these differences the essay concludes with a Pashukanist critique of the Christie thesis, seeking to assess the prospects of restorative justice replacing criminal justice as the generalised mode of disposition of criminal conflicts.

scholarly journals In Defence of Pashukanism

2017 ◽  
Vol 14 (4) ◽  
pp. 103 ◽  
Author(s):  
R Koen
Keyword(s):  
General Theory ◽  
First Principles ◽  
New Left ◽  
Marxist Theory ◽  
Legal Form ◽  
Commodity Exchange ◽  
Form Theory ◽  
Theory Of Law ◽  
Commodity Form

This essay presents an extended defence of the general theory of law formulated by the Bolshevik jurist, Evgeny Pashukanis, and published in his Law and Marxism: A General Theory in 1924. The general theory is a theory of the legal form. Although Pashukanis did not name his theory, it has become known as the commodity form theory of law because of its theorising the legal form as a homologue of the commodity form. However, despite having weighty Marxist and revolutionary Bolshevik credentials, the general theory has been subjected to sustained attack, especially from new left and neo-Marxist circles. This essay identifies and explicates six major objections to Pashukanism from its left critics. These are that the general theory is too abstract to comprehend the reality of legal relations; that it is infused with economic reductionism; that it derives the legal form wrongly from commodity exchange; that it classifies the legal form incorrectly as an attribute of capitalism only; that it lacks the generality required of a general theory of law; and that it is imbricated in the growth of anarchism and Stalinism. Following a brief exegetical exercise, the bulk of the essay is devoted to demonstrating in detail that each of the six objections to the general theory is without merit, and that none makes any serious incursion into its integrity as a theory of the legal form. The central submission of the essay is that the Pashukanist general theory of law is rooted in the first principles of classical Marxism and hence may lay claim legitimately to being the Marxist theory of law.

Prospects for the Implementation of Special Conciliation Procedures in the Russian Criminal Process

2020 ◽  
Vol 9 ◽  
pp. 99-104
Author(s):  
E. V. Markovicheva ◽  
Keyword(s):  
Criminal Justice ◽  
Restorative Justice ◽  
Justice System ◽  
Criminal Procedure ◽  
Legal Analysis ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Traditional System ◽  
Common Features ◽  
Legal Method

In the 21st century, the concept of restorative justice has become widespread in criminal proceedings. The introduction of special compromise procedures into the criminal process allows for the restoration of the rights of the victim and reduces the level of repression in the criminal justice system. The traditional system of punishment is considered ineffective, not conducive to the purpose of compensating for harm caused by the crime. Restorative justice enables the accused to compensate for the harm caused by the crime and is oriented not towards their social isolation, but towards further positive socialization. The introduction of the ideas of restorative justice into the Russian criminal process requires the introduction of special conciliation procedures. The purpose of the article is to reveal promising directions for introducing special conciliation procedures into the Russian criminal process. The use of the formal legal method provided an analysis of the norms of criminal procedure legislation and the practice of its application. Comparative legal analysis revealed common features in the development of models of restorative justice in modern states. Conclusions. The introduction of conciliation procedures into the Russian criminal process is in line with the concept of its humanization and reduction of the level of criminal repression. The consolidation of the mediator»s procedural status and the mediation procedure in the criminal procedure legislation will make it possible to put into practice the elements of restorative justice.

scholarly journals Creating and Maintaining Structural Hindrances to Criminal Justice Control – A Policy Analysis on the Normalisation of Parental Violence as a Crime in Finland

2021 ◽  
pp. 096466392110208
Author(s):  
Riikka Kotanen
Keyword(s):  
Criminal Justice ◽  
Criminal Law ◽  
Interpersonal Violence ◽  
Legal Regulation ◽  
Division Of Labour ◽  
Legal Form ◽  
Parental Violence ◽  
Control Policies ◽  
And Control

In the context of home, violence remains more accepted when committed against children than adults. Normalisation of parental violence has been documented in attitudinal surveys, professional practices, and legal regulation. For example, in many countries violent disciplining of children is the only legal form of interpersonal violence. This study explores the societal invisibility and normalisation of parental violence as a crime by analysing legislation and control policies regulating the division of labour and involvement between social welfare and criminal justice authorities. An empirical case study from Finland, where all forms of parental violence were legally prohibited in 1983, is used to elucidate the divergence between (criminal) law and control policies. The analysis demonstrates how normalisation operates at the policy-level where, within the same system of control that criminalised these acts, structural hindrances are built to prevent criminal justice interventions.

Criminal Justice Reform in a Transitional Context: Restorative Youth Conferencing in Northern Ireland

2012 ◽  
Vol 12 (3) ◽  
pp. 549-572 ◽  
Author(s):  
David O’Mahony
Keyword(s):  
Civil Society ◽  
Criminal Justice ◽  
Northern Ireland ◽  
Restorative Justice ◽  
Transitional Justice ◽  
Justice System ◽  
Peace Building ◽  
Youth Justice ◽  
Criminal Justice Reform ◽  
Transitional Environment

This article examines the incorporation of restorative principles and practices within reforms of Northern Ireland’s youth justice system, adopted following the peace process. It considers whether restorative justice principles can be successfully incorporated into criminal justice reform as part of a process of transitional justice. The article argues that restorative justice principles, when brought within criminal justice, can contribute to the broader process of transitional justice and peace building, particularly in societies where the police and criminal justice system have been entwined in the conflict. In these contexts restorative justice within criminal justice can help civil society to take a stake in the administration and delivery of criminal justice, it can help break down hostility and animosity towards criminal justice and contribute to the development of social justice and civic agency, so enabling civil society to move forward in a transitional environment.

Mandatory Compensation Orders for Crime Victims and the Rhetoric of Restorative Justice

2003 ◽  
Vol 36 (1) ◽  
pp. 60-76 ◽  
Author(s):  
Kate Warner ◽  
Jenny Gawlik
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Restorative Justice ◽  
Justice System ◽  
Public Support ◽  
Crime Victims ◽  
Property Damage ◽  
Victims Of Crime ◽  
To Receive ◽  
Legislative Measures

Increased recognition of the need for victims of crime to be integrated into the criminal justice system and to receive adequate reparation has led, in a number of jurisdictions, to legislative measures to encourage the greater use of compensation orders. The Sentencing Act 1997 (Tas) (which came into force on 1 August 1998) went further and made compensation orders compulsory for property damage or loss resulting from certain crimes. This article shows that this measure has failed victims and argues that they have been used in the service of other ends. Mandatory compensation orders are a token gesture repackaged as restorative justice to gain public support for the administration of the criminal justice system.Ways in which compensation orders could be made more effective and the possibilities of accommodating restorative compensation into a conventional criminal justice system are explored.

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