Non-Adversarial Justice: The Changing Role of Courtroom Participants in an Indigenous Sentencing Court pages-115-125
This paper forms part of a wider sociolinguistic study of cultural and language disadvantage for Indigenous offenders in the criminal justice system. It examines the changing role of courtroom participants in an Indigenous sentencing court such as the Koori Court of Victoria, and how this may lead to a better quality of justice for this disadvantaged cultural group. The problem under review is the high percentage of Indigenous offenders who continue to come in contact with the law. The key aim of the research is to determine if issues of miscommunication identified by academics over the past three decades continue to be reflected in the court process, or whether an awareness of cultural and language difference by participants at the Koori Court hearing leads to a more restorative and therapeutic outcome for Indigenous offenders. Taking an interdisciplinary approach, the study investigates the role of participants and the communicative process in a conventional court and compares this with the non-adversarial Koori Court. There are now seven adult and two children’s Koori Courts in Victoria, established under the jurisdiction of the Magistrates’ Court of Victoria, and one County Koori Court, Australia’s only Indigenous court in a higher jurisdiction for more serious cases. This paper will illustrate how new forms of court practice lead to improved interaction between courtroom professionals and other key participants such as the offender and Indigenous Elders, in order to best achieve a positive outcome.
Restorative Justice & Responsive Regulation
Braithwaite's argument against punitive justice systems and for restorative justice systems establishes that there are good theoretical and empirical grounds for anticipating that well designed restorative justice processes will restore victims, offenders, and communities better than existing criminal justice practices. Counterintuitively, he also shows that a restorative justice system may deter, incapacitate, and rehabilitate more effectively than a punitive system. This is particularly true when the restorative justice system is embedded in a responsive regulatory framework that opts for deterrence only after restoration repeatedly fails, and incapacitation only after escalated deterrence fails. Braithwaite's empirical research demonstrates that active deterrence under the dynamic regulatory pyramid that is a hallmark of the restorative justice system he supports, is far more effective than the passive deterrence that is notable in the stricter "sentencing grid" of current criminal justice systems.
Mandating Identity: Citizenship, Kinship Laws and Plural Nationality in the European Union
For over a century it has been the case that a person exists, at least for legal purposes, only after she has been recognized by the state. As a unique element of this acknowledgement, nationality has also been an essential component of individual identity. Now, under pressure from a variety of directions, the nature of the link between state and individual is changing, with as yet unclear implications and long-term effects. In this original and insightful analysis, Eniko Horvath focuses on three processes of legal evolution in Europe that affect the meaning of membership and individual identity: the increasing salience of supranational culture and rights; kinship; legislation privileging non-nationals with linguistic, cultural, and ethnic ties to a given state; and the emergence of plural nationality as an acceptable (and even welcome) phenomenon.The author's treatment is notable for its informed appreciation of both the content of relevant European and national laws and the ways in which these laws are embedded in particular social and political frameworks. In addition to extending the legal theory on citizenship and nationality, the analysis draws on sociology, social psychology, and political theory to anchor its insights and recommendations. After two in-depth chapters introducing the complexities of the subject matter, three distinct but interwoven chapters show how each of the three processes has unfolded in a given context, offer detailed explanations and suggestions as to why each development has occurred in the manner that it has, and discuss the legal, political, and sociological issues raised by the particular development.A comprehensive reference section with extensive lists of laws, cases, and scholarship concludes the volume. It is likely that this book will come to be recognized as a foundational work in the legal analysis of the concept of cultural identity, and especially its role in setting norms of membership, as that way of seeing the world becomes ever more clearly defined in coming decades. It is sure to be not only studied and cited by academics and legal theorists, but of special value also to policymakers in the areas of nationality and citizenship.