NCJ Number
200840
Journal
International Review of Penal Law Volume: 72 Issue: 1-2 Dated: 2001 Pages: 495-513
Date Published
2001
Length
19 pages
Annotation
This article examines the significance of lay (community) participation in criminal justice for transitional cultures.
Abstract
In many cultures where custom-based processes of participatory justice are governed by constitutional legality the two systems adapt to each other and adopt common characteristics and processes. In the South Pacific, custom prevails over the introduced laws and institutions. The crucial significance of community participation within criminal justice becomes clear when custom-based processes of resolution are examined for their clear credibility, inclusion, and success. The paradoxes between custom and introduced legal formalism are apparent with features such as individual liability and rational choice justifying penalty. Another important dimension for paradox that grows out of the contest between individual and collective responsibility is the necessity for participation in justice. Issues of revenge and compensation in certain custom settings in the Pacific combine in the institution of pay-back. The obligations involved in pay-back produce a form of justice that is representative and participatory for both communities. Within custom communities in the Pacific, it is common for the community to participate in punishment. It is normal for compensation and restitution to be preferred resolutions of crime/harm than punishment alone. Outcomes such as banishment and reconciliation are inextricably dependent on community participation for their impact and their closure. There are several problems with the integration of custom and formalized criminal justice institutions. One problem is that the structures of penalty on which crime control traditionally lies may be culturally specific. Another is that the state represents the interests of those affected by crime in modernized criminal justice. The community consensus so essential for tolerance and reintegration are removed from more formalized crime control. The integration between justice resolutions and customary participation has been misunderstood or ignored in efforts to incorporate customary resolution processes within introduced legal formalism. 35 footnotes