<論説>修復的司法の可能性

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1. Background to the appearance of restorative justice We, living at the end of the 20^<th> Century, feel sometimes that something being regarded as modern common sense is changing rapidly. In the field of law, the distinction between a civil case and a criminal case was one thought to be absolute. However, in the present day, the distinction between the two has become quite flexible. To look at the wider cultural background, there seems to have been a change in the respective value of guilt culture and shame culture as noted by Ruth Benedict (Benedict, Ruth, The Chrysanthemum and the Sword, Patterns of Japanese Culture, London 1947). Earlier, it was believed that a Christian country had a guilt culture and Japan had a shame culture, and that a guilt culture was a high dimension culture whereas a shame culture was a low dimension culture. Now, however, the importance of shame is being emphasised. The typical theory is the theory of Shame and Reintegration by Braithwaite (Braithwaite, John, Shame and Reintegration, Cambridge : Cambridge University Press, 1989). Restorative justice appeared in this situation. It was one of the most popular issues of the 8th International Congress on Criminology, in Seoul on 24-29 August 1998. 2. Restorative justice perspective It is futile to debate restorative justice if we do not share the same basic understanding of it. I must, therefore, explain what I understand as 'restorative justice'. The restorative justice perspective regards crime as a conflict between individuals rather than an offence against the state. Offenders and victims play an important role in the solution of problems. Every intervention is related to damage as a result of crime. The basic framework is : ● To make the offender take responsibility for the victim; ● To secure the safety of the community; ● To promote the personal development of the offender. Conferencing between offenders, victims and the community plays a key role in juvenile justice. Consultation and negotiation are the most crucial parts of juvenile justice. The core of the problem of crime is the disgrace it brings upon the offender and the subsequent recovery from that disgrace. The foundation of this perspective is Braithwaite's 're-integrative shaming'. I do not understand this perspective as either pre-modern nor postmodern. It is an outcome of the development of modern criminal justice and modern criminal law, which attaches greater importance to the safety of the citizen than to moral support. At the beginning of the modern age, we made a distinction between religious sin, with which law is unconcerned, and legal transgression. It was much later that the offence against the safety of citizens was distinguished from that against morality, and criminal law is concerned with only the former. At present, the main problem of crime is the damage it causes. The solution to the problem should, therefore, be made between the offender and the victim in the same way. 3. Actual system of restorative justice One system based on the perspective mentioned above is New Zealand's Family Group Conferencing, which was adopted by the Children, Young Persons and Their Families Act 1989. According to Allison Morris and Gabrielle M Maxwell, the Act is unprecedented in the English speaking world (Allison Morris and Gabrielle M Maxwell, 'Juvenile Justice in New Zealand' : A Paradigm', Australian and New Zealand Journal of Criminology, Vol.26,No.1,p.72). It is considered to be an integration of both indigenous and western approaches (p.73). The aim is to : ● Promote the well being of children, young people and their families and family groups ● Assist families and kinship groups in caring for their children and young people ● Provide protection for children and young people ● Enable young offenders to be made accountable ● Enhance the development of children and young people ● Deal with issues in a culturally appropriate manner. A series of general principles em

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