Academic journal article Contemporary Readings in Law and Social Justice

The Case for a Radical Moral Communitarian Youth Justice

Academic journal article Contemporary Readings in Law and Social Justice

The Case for a Radical Moral Communitarian Youth Justice

Article excerpt

Introduction

The story of the development of juvenile justice in the UK and the developed - and increasingly the developing - world has been at a fairly simplistic level been one of a transition from a justice/punishment model (where offenders should be held responsible for their actions and punished if they transgress) to a welfare treatment model (where treatment and rehabilitation are advocated rather than punishment). The situation has nevertheless become continually more ambiguous in more recent years although this ambiguity is actually nothing new.

The gradual separation of systems of juvenile and youth justice from adult justice progressively introduced in many Western jurisdictions from the mid-to-late-nineteenth century onwards has always sought legitimation in terms of acting in the "best interests" of the child. The course of that enterprise has actually never been constant but has at various times been victim to over-zealous paternalism, and invariably dominated by the "best interests" of adults (Muncie, 2013). Thus, what may have begun as an attempt to prevent the "contamination of young minds" by separating children and young people from adult offenders in prisons has evolved into a complex of powers and procedures that are both diverse and multi-factorial. Typically, systems of youth justice are overwhelmed by the ambiguity, paradox and contradiction of whether children and young people in conflict with the law should be viewed as "children first" and in need of help, guidance and support (welfare) or as "offenders first" and thereby fully deserving their "just desserts" (punishment). By the 1990s the parameters of such debate were significantly altered by various measures of "adultification" (Muncie, 2013) whereby many young people were to find that their special protected "welfare" status (as in need of care and separate treatment) had been threatened. Indeed, in many western jurisdictions it has become more common for the young to be held fully responsible for the consequences of any transgressions.

Such developments have been far from universal however; with numerous counter movements emerging which have been designed to further rather than diminish the rights of children. The restorative justice movement has thus raised, for crucial example, the possibility of less formal crime control and more informal offender/victim participation and harm minimization. The formulation of the United Nations Convention on the Rights of the Child in 1989 stresses the importance of incorporating a rights consciousness into all juvenile justice systems through, for example, the establishment of an age of criminal responsibility relative to developmental capacity; encouraging participation of children and young people in decision making; providing access to legal representation; protecting children from capital or degrading punishment; and ensuring that arrest, detention and imprisonment are measures of last resort. Above all, the Convention emphasizes that the "best interests" of all those aged under 18 should be a primary consideration. As a result, by the twenty-first century, juvenile justice in many (western) jurisdictions has evolved into a significantly complex state of affairs. Many systems are apparently designed to punish "young offenders" whilst simultaneously, and paradoxically - in keeping with international children's rights instruments - ensuring that their welfare is safeguarded and promoted as a primary objective, as in the case of the contemporary youth justice system established in England and Wales by New Labour in 1998 (Muncie and Goldson, 2013).

The contemporary youth justice system was established by the Crime and Disorder Act 1998 and sought to bring together the apparent polar opposites of justice and welfare in a comprehensive juvenile/youth justice system. It was introduced by a New Labour Government strongly influenced by the political philosophy of communitarianism, which had emerged in the USA during the 1980s proposing that the individual rights, vigorously promoted by traditional liberals, need to be balanced with social responsibilities to the communities in which we live (Hopkins Burke, 2008). …

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