The Influence of Legal Culture, Local History and Context on Restorative Justice Adoption and Integration: The Czech Experience
Clamp, Kerry, Nottingham Law Journal
While criminal justice systems and programmes around the world may use similar terms and processes, they are very often shaped by national identity and perceptions of the historical role of criminal justice agencies--police, prosecutors and judges. This is no more evident than in countries that have undergone some form of constitutional settlement and who, in the new democratic order, are faced with transforming a criminal justice system that was once used as an extension of state power to one that will uphold democratic principles as enshrined in international legal documents. During this process of reform, governments increasingly look to other nations for sources of inspiration for new policy strategies. (1) Therefore, while we may see similar trends across societies in terms of the adoption and implementation of programmes or policies, it may be argued that their application is often shaped by historical and cultural characteristics of a particular jurisdiction.
A particular example of this may be illustrated by the momentum of restorative justice within the global criminal justice landscape. Restorative justice has become a popular mechanism for a number of governments attempting to address a legitimacy deficit faced by criminal justice institutions and to stimulate community ownership and responsibility for offending behaviour. In many countries, the legislative use of restorative justice is confined to the youth justice system with only minor or first-time offences qualifying for referral (for example, England and Wales). In others, restorative justice is a mandatory consideration for juvenile offenders with relatively few offences being excluded for referral to conferencing/mediation processes (for example, New Zealand, Northern Ireland and South Africa). A smaller cohort of countries have legislative provision for both adult and juvenile offenders with a range of offences both minor and serious--being eligible for restorative processes. However, despite the reams of paper devoted to the investigation of this reform dynamic, little is known about the factors that impact on the character and prevalence it ultimately assumes in the formal response to offending behaviour.
Previous research on restorative justice, which emphasises the importance of the role of both victim/s and offender/s participating fully in the outcome of their offence, has traditionally focused on countries that have strong democratic traditions such as the United States, Canada, Australia and New Zealand. While this research has highlighted the effectiveness of restorative justice as a method of crime reduction, its benefits and risks to both victims and offenders, and its effect upon the procedural rights of arrestees, relatively little attention has been paid to why and how it is adopted and implemented within transitional settings. (2) This paper seeks to provide an initial contribution to that gap in the literature by investigating the experience of one country--the Czech Republic--to learn more about how history and a transition from an undemocratic to a democratic tradition can influence the character of restorative justice during criminal justice reform.
The paper begins by providing a brief overview of the history of the Czech Republic--Communism, legal culture during that period and the issues raised by the transition. The study of historical events is an important element of any analysis on policy choices post-transition due to the impact that it may have on decision-making (3) and this exercise provides a context for looking at restorative justice adoption and integration during the process of criminal justice reform in the second part of this paper. The final section seeks to tease out the lessons that may be learnt about the impact of history and legal culture on restorative justice adoption and integration.
LEGAL CULTURE, COMMUNISM AND THE 'VELVET REVOLUTION
The Czechs and Slovaks, for hundreds of years, were subjects of the Habsburg Empire (4) and their geographical location on the border of Western and Eastern Europe meant that their culture had been influenced somewhat by Western liberal political, economic and religious traditions. …