The Reciprocal Relationship Between Muslims and Zoroastrians During the Rashidun Caliphate

In 2005, the Protection Law for Crime Victims was passed. A paradigm shift to putting more focus on protection of victims followed. Restorative justice is the most common phrase used worldwide to describe alternative ways of responding to crime. This study explores the introduction of restorative justice into korean penal system, and the relationship between restorative justice and probation. The first task of this study is to define the boundaries of probation and restorative justice. The next task is defining the concept of probation and the policy of restorative justice in the practices of probation. Victim Offender Mediation & Dialogue(VOMD, Criminal Reconciliation) is a policy that aims to solve criminal problems through the reconciliation of offender and victim through compensation and apology. Restitution and reconciliation are practical principles for realizing the ideology of restorative justice. Restorative justice is seen as a judicial model that may overcome the limitation of (traditional) criminal justice system and has immensely influenced the judicial practice of various countries. This study will analyze the legislation of probation and restorative justice and find whether VOMD can be suitable for korean criminal justice. As it is likely that restorative judicial practice will be also introduced to Korea, there is a need to find its concrete system. Currently, there is only unofficial criminal consent, thus VOMD should be legislated in Criminal Law and Criminal Procedure Act to protect the victims' rights. Restorative justice is currently practiced partially in Korea. The examples of the Restorative Justice are as follows: encountering programs between offenders and victims to prevent school violence, programs inviting victims of traffic accidents to the offenders-training spot, and conference between victims and offenders of sexual violence. The purpose of restorative justice are crime control and offender-rehabilitation. This may be achieved by restoring the relationship among victims, offenders and local community. Keywords: Human trafficking Language: ko

There is considerable debate among both academics and professionals about whether restorative justice offers victims a better deal than the traditional criminal justice system. Advocates of restorative justice argue that restorative justice, which focuses on reparation of the harm suffered by the victim, is undoubtedly better equipped to respond to victims' needs than contemporary criminal justice systems. Failure by victims' advocates to embrace restorative justice has been criticised as a disservice to victims. However, victims' rights advocates are wary of the possibility that restorative justice programs are insensitive to the needs of crime victims and that they will place an additional burden on victims. Who is right? Do victims want to participate in the criminal justice process and if so, how? As Fattah (2001) suggests, the only way to resolve this debate is to ask crime victims. In this paper we present data from a study of victims of crime who were invited to participate in victim—offender mediation. In addition, procedural justice theory, which offers a theoretical framework for understanding the role that victims prefer to play in criminal justice procedures, will be presented. The paper closes with recommendations for a victim-oriented approach to criminal justice.

Restorative Justice: Some Facts and History

Controversies Around Restorative Justice

The enactment of Law Number 1 of 2023 concerning the National Criminal Code (KUHP) marks a historic moment in Indonesian criminal law politics. This regulation represents a "decolonial" effort to replace the Dutch-inherited Criminal Code (Wetboek van Strafrecht) with a criminal law system rooted in the Pancasila philosophy and Indonesian values. The most fundamental change lies in the shift in the sentencing paradigm, from one originally oriented towards retributive justice (retribution) to an approach that balances corrective, rehabilitative, and restorative justice. This new approach aims to redefine the relationship between the state, perpetrators, and victims, with a focus on recovery. This study aims to analyze the new direction of Indonesian criminal law politics following the enactment of the National Criminal Code, conceptually comparing the principles of retributive justice in the old Criminal Code with the restorative justice approach in the new Criminal Code, and identifying implementation challenges in this transitional sentencing paradigm. This study uses a normative juridical method. Using a legislative and historical approach, a comparative analysis of the philosophy, principles, and norms of punishment contained in the old Criminal Code and Law No. 1 of 2023 was conducted to map the transformation of criminal law policy. It was found that the National Criminal Code explicitly abandons the philosophy of lex talionis and adopts a more humanistic goal of punishment, reflected in the criminal provisions and actions. Restorative justice is positioned as a complement to the conventional justice system, emphasizing the restoration of victims' losses and the social reintegration of perpetrators, rather than as a complete substitute for retributive justice. This creates a constructive tension, requiring law enforcement officials to make contextual choices between punitive and restorative approaches, rather than adopting a single approach. The greatest challenge lies not in the legal text, but in changing the culture and paradigm of law enforcement officials who have long been accustomed to a retributive system. The National Criminal Code inaugurates a more progressive criminal law policy by placing restorative justice as one of its main pillars. However, its successful implementation depends heavily on cultural transformation within law enforcement. It is recommended that the government prioritize a massive, ongoing socialization and training program for judges, prosecutors, and police to internalize this new paradigm, and encourage legal education institutions to reform their curricula.

The modern agenda of restorative justice has arisen as a critique against the retributive criminal justice. The restorative-justice-movement offers valuable ideas, which can be adopted, rethought and incorporated in any self-aware criminal justice system. Therefore, the fact that there is a raising awareness in many countries for different victim rights and restorative programmes does not by necessity mean that all claims of the restorative-justice-movement are to be accepted and baptized in the near or far future. However, the case of Serbia shows that for some countries the restorative-justice-movement may represent a serious danger: very modern and advanced institutions of criminal justice may be disregarded, while misinterpreted as a barrier to introduction and existence of restorative justice. The purpose of punishment in Serbian criminal law has traditionally been the crime prevention. Therefore the goal of restorative justice advocates in Serbia must not be to plainly transplant the arguments, such as the one that the 'traditional' criminal justice system must be and eventually will be replaced with a restorative one. Differently than in many other countries, the 'traditional' criminal justice system in Serbia is not the retributive but the preventive one, and therefore compatible with basic restorative justice ideas.

The claim that restorative justice emerged in response to the failings of the traditional criminal justice system is frequently made and rarely challenged in the restorative justice literature. It is stated unproblematically, as though it is an unassailable fact rather than a powerful truth claim, thereby positioning restorative justice as a natural, progressive and superior model of justice in comparison with the traditional criminal justice system. This truth claim therefore bestows restorative justice with a legitimacy that is difficult to challenge or refute. Drawing on a Foucaultian genealogy of restorative justice, this article seeks to destabilise the truth claim that restorative justice emerged in response to the failings of the criminal justice system. While the shortcomings of the traditional criminal justice system may provide a backdrop to the emergence of restorative justice, this article argues that such a possibility makes restorative justice a possibility rather than an inevitability.

This paper is based on research carried out in Northern Uganda on the negotiation between retributive and restorative justice in conflict transformation. The findings show that in the daily lives of survivors of sexual and gender based violence (SGBV) in post-conflict northern Uganda, retributive and restorative justice systems are not used as mutually exclusive mechanisms for seeking justice. Rather, they are constantly negotiated. Children and other stakeholders in post-conflict settings pragmatically choose to apply aspects of each justice system to serve their own goals. In the real life experience of these survivors and their families, the two systems are interconnected and interdependent. Their boundaries, therefore, seem to be porous; “places of meeting and exchange rather than walls of protection against each other”(Jordan J, Hartling L, New developments in relational-cultural theory. In: Ballou M, Brown L(eds) Rethinking mental health and disorder. Guilford Press, New York, 2002: 8). In the daily lives of children and their caretakers in post-conflict settings, it is a fallacy to imagine that retributive and restorative justice systems are working independent of each other. In other words, when each system operates independent of the other, it becomes incomplete as an explanatory model for justice in the context of the survivors and their families. This chapter demonstrates how people, especially survivors of SGBV and their families in Northern Uganda, negotiate between retributive and restorative justice in an effort to access justice. This chapter further explores whether an ingenious hybrid of retributive and restorative justice can creatively contribute to the achievement of justice for the survivors and their families. It also explores the extent to which the process of negotiating between the two justice systems may create space for impunity. The chapter concludes that although nurturing a hybrid justice system creates opportunities for participation and ownership of processes and outcomes by the victims/survivors and perpetrators of atrocities and their families, care must be taken to ensure that the best interests of the survivors and their rights are not compromised.

Retributive criminal justice, as expressed in criminal prosecutions, is not the only way to achieve accountability for criminal wrongdoing. An alternative is provided by the concept of restorative justice. Restorative justice focuses on repairing the harm caused by crime by responding to the needs of all stakeholders, including the perpetrator. It therefore constitutes a particularly well-suited approach to crimes committed by children. However, because restorative justice has been developed for “ordinary” crimes within domestic settings, it needs to be adapted to the situation of “extraordinary crimes”, i.e. crimes under international law, in transitional settings. The fourth chapter develops a new approach to achieve accountability for crimes under international law, which is called restorative transitional justice. The chapter begins with an analysis of restorative justice as a theoretical and practical concept, including its relationship to juvenile justice. It then explores the applicability of restorative justice in transitional settings and its suitability to address crimes under international law. Thereafter it turns towards developing the concept of restorative transitional justice and discussing its practical application. After establishing why restorative transitional justice constitutes an ideal approach to the situation of child soldiers, a variety of restorative transitional justice processes for child soldiers are analyzed on a theoretical and practical basis.

The emergence of restorative justice as an alternative model to Western, court-based criminal justice may have important implications for the psychology of justice. It is proposed that two different notions of justice affect responses to rule-breaking: restorative and retributive justice. Retributive justice essentially refers to the repair of justice through unilateral imposition of punishment, whereas restorative justice means the repair of justice through reaffirming a shared value-consensus in a bilateral process. Among the symbolic implications of transgressions, concerns about status and power are primarily related to retributive justice and concerns about shared values are primarily related to restorative justice. At the core of these processes, however, lies the parties' construal of their identity relation, specifically whether or not respondents perceive to share an identity with the offender. The specific case of intergroup transgressions is discussed, as are implications for future research on restoring a sense of justice after rule-breaking.

Ayelala is a popular deity in the western part of Nigeria. The deity is well known for its efficacy in punishing offenders of law and order when invoked. With 52 participants, this study investigated whether Ayelala should be incorporated into Nigeria Criminal Justice and political Systems. A total of 94% of the participants agreed in one form or the other that the deity is very efficient in punishing offenders of law and order when invoked. For its inclusion in Nigeria Criminal Justice System, 54% wanted it to be included and implemented. The study, therefore, recommended that survey should be conducted in Nigerian society on whether traditional criminal justice system like Ayelala should be included in the Modern Criminal Justice System or not. If the people so desired that it should be included, government should take steps towards the implementation of the decision of the people. Other recommendations are discussed in this paper.

<p>Restorative justice has played a paradoxical role in the New Zealand criminal justice system. One the one hand, over the past thirty years restorative justice has steadily gained public recognition and received institutional support through judicial endorsements and legislative provisions. In many respects New Zealand has been at the global forefront of incorporating restorative justice processes into the criminal justice system. This, in the hope that restorative justice might improve justice outcomes for victims, offenders and society at large. </p><p><br></p> <p>Yet despite such institutional support for restorative justice, the outcomes of the mainstream justice system have not substantially improved. Ironically, many of the same statutory provisions that enabled restorative justice included punitive provisions that served to tighten the reins of the carceral state. The New Zealand prison population is currently one of the highest in the Organization of Economic Co-operation and Development (OECD), the downstream consequences of which have been devastating for those impacted, and particularly for Māori. </p><p><br></p> <p>Openly acknowledging that the existing justice system is “broken,” the government launched a criminal justice reform program in 2018 to consider a range of options that might contribute to fundamental change. Initial feedback elicited as part of the process calls for a more holistic and transformative approach to criminal justice. Notably this is what restorative justice, at its best, claims to deliver. However, the New Zealand criminal justice system appears to lack such transformative aims and the role of restorative justice in driving institutional change in the future remains to be seen. </p><p><br></p> <p>This thesis examines the institutional paradox of restorative justice in New Zealand. It explores how and why restorative justice originally became an established part of the criminal justice system and what impact it has had on the system of which it has become a part. Drawing on institutional theory, it assesses how far restorative justice institutionalization has progressed, the factors that have facilitated it and the barriers that have impeded it. Finally, it identifies ways in which restorative justice, when institutionalized through principles, policy, law and practice, can make a more lasting impact for those whom the justice system is intended to serve. </p><p><br></p> <p>Within restorative justice literature, both those who commend institutionalization and those who oppose it highlight problems caused by “isomorphic incompatibility” between the mainstream adversarial system and restorative justice. This thesis argues that while foundational tensions exist between the two approaches, such tensions are not insurmountable. Simplifications or exaggerations of incompatibility overlook important similarities and confluences between the two approaches. Confronting such institutional “myths” is necessary if isomorphic combability is to occur. </p><p><br></p> <p>These claims are illustrated through an examination of sexual violence. The pressing problem of responding well to sexual violence illustrates how isomorphic alignment, through careful integration of restorative principles and practices into the criminal justice system, can enable the state to fulfil its responsibilities of ensuring societal safety and protecting the rule of law in ways that better meet victims’ distinct justice needs and the best interests of all stakeholders. </p>

<p>Restorative justice has played a paradoxical role in the New Zealand criminal justice system. One the one hand, over the past thirty years restorative justice has steadily gained public recognition and received institutional support through judicial endorsements and legislative provisions. In many respects New Zealand has been at the global forefront of incorporating restorative justice processes into the criminal justice system. This, in the hope that restorative justice might improve justice outcomes for victims, offenders and society at large. </p><p><br></p> <p>Yet despite such institutional support for restorative justice, the outcomes of the mainstream justice system have not substantially improved. Ironically, many of the same statutory provisions that enabled restorative justice included punitive provisions that served to tighten the reins of the carceral state. The New Zealand prison population is currently one of the highest in the Organization of Economic Co-operation and Development (OECD), the downstream consequences of which have been devastating for those impacted, and particularly for Māori. </p><p><br></p> <p>Openly acknowledging that the existing justice system is “broken,” the government launched a criminal justice reform program in 2018 to consider a range of options that might contribute to fundamental change. Initial feedback elicited as part of the process calls for a more holistic and transformative approach to criminal justice. Notably this is what restorative justice, at its best, claims to deliver. However, the New Zealand criminal justice system appears to lack such transformative aims and the role of restorative justice in driving institutional change in the future remains to be seen. </p><p><br></p> <p>This thesis examines the institutional paradox of restorative justice in New Zealand. It explores how and why restorative justice originally became an established part of the criminal justice system and what impact it has had on the system of which it has become a part. Drawing on institutional theory, it assesses how far restorative justice institutionalization has progressed, the factors that have facilitated it and the barriers that have impeded it. Finally, it identifies ways in which restorative justice, when institutionalized through principles, policy, law and practice, can make a more lasting impact for those whom the justice system is intended to serve. </p><p><br></p> <p>Within restorative justice literature, both those who commend institutionalization and those who oppose it highlight problems caused by “isomorphic incompatibility” between the mainstream adversarial system and restorative justice. This thesis argues that while foundational tensions exist between the two approaches, such tensions are not insurmountable. Simplifications or exaggerations of incompatibility overlook important similarities and confluences between the two approaches. Confronting such institutional “myths” is necessary if isomorphic combability is to occur. </p><p><br></p> <p>These claims are illustrated through an examination of sexual violence. The pressing problem of responding well to sexual violence illustrates how isomorphic alignment, through careful integration of restorative principles and practices into the criminal justice system, can enable the state to fulfil its responsibilities of ensuring societal safety and protecting the rule of law in ways that better meet victims’ distinct justice needs and the best interests of all stakeholders. </p>

Law enforcement can be considered in both the “narrow” sense of the policing and enforcement of law and a wider sense of the maintenance of order and reinforcement of societal rules and dominant ideologies. The maintenance of social order, protection of citizens, and prevention of and redress for harms against citizens, property, and nonhuman nature are heavily reliant on law enforcement. Effective criminal justice is arguably dependent on law enforcement as a dominant feature of criminal justice systems that adopt the notion of punishment as a tool of social control. Societal construction of harm and the definition of unacceptable behavior often manifests itself in laws, rules, and regulations that serve as both control mechanisms and expressions of societal norms. Where societal rules, in the form of laws and regulations, are broken, effective law enforcement is essential both to demonstrate societal disapproval of the “deviant” behavior and to provide for social sanction through appropriate redress and retributive justice mechanisms. Accordingly, law enforcement and policing are inextricably linked in the context of providing a means through which serious social harms can be dealt with. But law enforcement goes far beyond policing, both conceptually and with respect to the mechanisms that are deployed to express society’s disapproval and ultimately secure redress. In a narrow sense, policing can be defined as that which the police (or recognized policing agencies) carry out. This often centers around enforcement of the criminal law and a detection, investigation, and apprehension model inextricably linked to ideas of retributive justice. By contrast, law enforcement is broader, involves civil and criminal justice agencies, and can incorporate administrative and regulatory law mechanisms and even alternative dispute resolution as a means of resolving disputes and ensuring appropriate redress. Thus, law enforcement can also extend beyond the confines of retributive criminal justice to incorporate restorative and rehabilitative justice mechanisms to encourage compliance.

Mediation as a method of conflict resolution also applicable to conflict resulting from an offences is the alternative of legal solution of disputes, a technique shared by various models that promote the use in practice of consensus. This novel plocedure fot conflict resolution (which is however derived from the traditions of the oldest societies) - a consensual one, based on agreement between parties - has been developing most dynamically over the recent decades, and pervaded all branches of the law in most legal systems (H. Jung, T. Marshall). In the specific context of criminal justice, mediation does not necessarily aim at conflict resolution. For this reason, it is defined as a process, where parties to proceedings are offered the possibility to actively participate in resolving issues that result from the offence, and are assisted in so doing by an impartial third person or mediator. Mediation may take a variety of forms (direct or indirect); it may be conducted by professional or lay mediators, under auspices of the law enforcement agencies or by an independent social organization, and the parties to it may include not only the victim and the offender but also their relatives and other supporters as well as representatives of the criminal justice system. As has already been mentioned, the origins of mediation between the offender and his victim date back to the oldest past when all issues related to harm involved in acts that are today treated as offences were adjusted in the course of negotiations by those directly concerned assisted by their families and clans. The offences was seen as a conflict between the victim and the perpetrator, with due consideration to the social context. Once the function of reacting to crime was taken over by the state, the reactions initially resembled the modern rules of civil law. Later on, when crime was interpreted as violation of the order established by the ruler, penal sanctions aimed not only at compensating the victim but also at supporting the authority of the state. Although Nils Christie's picture of the state stealing the conflict is a convincing illustration of this situation, the fact should be borne in mind that the state's taking over of the function of punishing was an immense cultural achievement of its time, especially for those members of the conmunity who were too weak to vindicate their claims (B.-D. Meier). Solutions that provide for specific forms of consensus can also be found in modern legal systems. In the area of mediation between the victim and offender, the practice outpaced theory. It was inspired, among other things, by examples of "community justice'' of non-Western cultures; by the movement on behalf of victims, the progress of victimology, the diversion conception, and abolitionism; by the theory of social peace and conflict resolution and by the conception of reparatory justice. This latter conception deals with most problems posed by the other ones. It is, however, difficult to define, and its essence is difficult to explain, especially if we try to embrace threads important for all the trends on which it bases. Thus in the end, a simpler definition suggested by T. Marshall won general acceptance: "reparatory justice is an approach to crime, oriented on solving the problem, which engages perionally all parties involved in it as well as the community, in active relation to the public sector institutions. It is not a specific activity but a set of ruled that may set the direction of the bulk of actions of all institutions or groups related to crime. Reparatory justice is a process in which all parties involved in a specific offence meet to reach a joint solution of the issue of effects of crime and conclusions for the future". This definition was subsequently modified somewhat by other authors. In particular, it was accepted by an international body - the International Research Network on Reparatory Juvenile Justice in its Leuven Declaration of May 1997 concerning advisability of promoting the reparatory approach to juvenile delinquency. Reparatory justice is discussed as a specific trend, approach, philosophy or even idea; according to most authors, however, it has not yet developed into a consistent theory, although incessant efforts are made towards this aim. The term "reparatory justice'' is attributed to R. Barnett; H. Zehr's contribution is the first general model of that justice as an "alternative paradigm of justice" whose main principles are opposed to those of the traditional retributive justice. Also J. Braithwaite's idea of "reintegrating confusion'' was of importance for the development of the reparatory justice conception. It is associated e.g. with Hirschi's theory of control, Matza's neutralization theory, Luhmann's systemic theory, and also with the traditional penal law theories under which evil has to be compensated by punishment, but compensation involving suffering prohibits a better arrangement of social relartions. Instead, reparatory justice balances the harm involved in crime through action aimed at compensation and “doing good” (Ch. Pelikan, B.D. Meier). M. Wright stresses that this conception largely tallies with the common-sense ideas as to how society should react to crime, supported by appropriate actions, analysis, and studies. Mediation and other restorative reactions are sometimes shown as responses that function instead, parallel or within the traditional justice system. Much speaks, however, for integration of reparatory justice with the criminal justice system. The approach that isolates mediation altogether from criminal justice pays insufficient attention to the danger of inequality of the parties to mediation in the area of efficient execution of their conflicting interests. Thus public interest requires that the course and results of mediation proceedings be supervised. The manner in which reparatory justice may replace repressive one depends first and foremost on the seriousness of crime. It is not in all cases that a purely reparatory reaction should be recommended as sufficient. This is among the frequent arguments of critics of reparatory justice (although even its supporters accept the existence of limits to its application). Skeptics also stress that reparatory justice violates a number of generally accepted rules of procedure, especially that of equality before the law (which, however, could be disputed) and the offender’s procedural rights due to him in criminal proceedings (which is in fact a weakness of reparatory justice, but collisions might be solved by appropriate rules and standards of the reparatory process or e.g. by judicial review of negotiated solutions). The conception of reparatory justice is often explicated through opposition of the basic models of reaction to crime (although faulty in some respects, this method well illustrates the most fundamental features). Reparatory justice is sometimes called the "third path'', an alternative to the (neo-) retributive penal law and the rehabilitation model which proves ineffective, and a fully mature self-standing model (L. Walgrave, I. Aertsen). M. Wright stressed two spccial ideas that distinguish reparatory justice from the traditional criminal justice system. The first of them is that the process itself constitutes an essential element of the reaction, that it is constructive and may even have a therapeutic importance. The other idea is compensation interpreted in a much broader sense - from symbolic actions such as work to those reducing the risk of the offender relapsing into crime. The justification and legitimization of mediation in criminal cases bases not only on new theorietical conceptions. Such justification can also be found in the assumptions of the traditional justice system. This is what B.D. Meier did assuming as his point of departure the penal law system's public function, including in particular that of restoring public order that has been violated through crime, and also that of preventing repeated violations. The traditional systems have always provided for two or three different models of reaction to crime. Prevalent is punishment imposed on the person who has been found guilty. The second model involves imposition of special measures irrespective of the offender's liability (security and preventive measures). The third model, of crucial importance for legitimization of mediation in the criminal justice system, consists in renouncing formal proceedings, e.g. in view of slight social harmfulness of the act, the fact that no public interest is involved in the imposition of penalty, or reasons of general and special prevention. According to T. Marshall, justifications of reparatory justice (fulfilled i.a. through mediation) should be sought in the community nature of the offence and its effects. Explaining the theoretical foundations of mediation between the victim and the offender is a complex task because of the multitude of its sources as well as theories and conceptions quoted, and particularly because of the lack of agreement as to the essence of the usually quoted conception of reparatory justice and as to its treatment as "competitive'' with fespect to traditional justice or (for which interpretation I would like to declare) as that system's highly profitable logical supplementation, improvement and expansion. Also in Poland, the practice of actions involving mediation have outpaced the theory: for several years now, there has been quite a rapid growth in its application in practice. In both spheres, there are many problems and challenges worth taking up. At the same time, expanding the theory is of importance for the practice. Explanation of the ideas, aims and foundations of mediation and of its position with respect to traditional justice is paramount for the institution's reasonable development, evaluation and shaping towards its meeting the expectations.