Summary. A deliberative ritual Mediating between the criminal justice system and the lifeworld. 1 Criminal justice under pressure

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1 Summary A deliberative ritual Mediating between the criminal justice system and the lifeworld 1 Criminal justice under pressure In the last few years, criminal justice has increasingly become the object of critical social attention. Not mincing words, commentators are by now even speaking of a crisis of legitimacy that centres on the problematic relationship between the ever more emancipated citizen and the criminal justice system. This book aims to offer a new perspective in this debate on social legitimacy : the acceptability to persons seeking justice. Many attempts to reinforce this consist of narrowing the gap between the citizen and criminal justice. As in many public domains, in criminal justice too we are currently seeing a deliberative shift : the solution is sought in transparency, rational explanation and increased participation, and reckons with responsive criminal courts. In this, mediation between perpetrators and victims forms a relatively new search area surrounding the criminal process, besides modalities such as the right to be heard of victims and experiments with the reasoning of judgments. The central element is always that the lifeworld of presumably emancipated citizens is given a larger role. At the same time, however, despite all the efforts made, this unilateral responsive direction appears to be effective only to a limited extent. In this book I elaborate through mediation practice how this sense of unease may be better understood. The mediation shows that, in addition to emancipation, argumentative explanation and participation as reinforcements of social legitimacy, a second register emerges which I elaborate in this book as rituality. The participatory exposition is limited by that which cannot be expressed in arguments and reason: the contingent experience of perpetratorhood or victimhood, the moral emotions and the way in which the experiences behind crime are dealt with socially. With the elimination of traditional meaning-providing institutions, a cultural emergency arises and the sense of being at a loss as to what to do about the moral and ethical aspects (such as punishment, vengeance, guilt, loss) of this lack of meaning is reinforced. In this book I defend the thesis that the social legitimacy of criminal justice takes on the guise of a deliberative ritual. I elaborate this thesis in accordance with an empirical analysis of interviews with victims and perpetrators. By means of a qualitative research method I confront the theoretical exposition of discursive law with the practical experiences as told by the respondents who took part in medi- 259

2 ation or who refused to take part, and who always also went through mediation in addition to the regular criminal settlement of the case. It emerges from such an analysis that legitimacy at the same time refers to the emancipated citizen who in the rationality of arguments wishes to have a say in his/her case and understand what is happening and to a ritual and symbolic meaning of criminal justice. A notion like deliberativeness comes together in tension with rituality. Moreover, the mediation practices demonstrate how the ritual has become deliberative of itself in a late-modern, secular society. The mediation, as I elaborate in this book, places this aspect of deliberative rituality on the agenda as a contribution to the debate on legitimacy. 2 Between facts and norms Lifeworld, criminal law and legitimacy The theory of Jürgen Habermas is explained as the framework for the deliberative shift in criminal justice and the accompanying idea of legitimacy. It deals with the question of how legitimacy can be understood as a problem of legal theory. Within such a discursive legal theory, a legitimate legal apparatus is capable of taking up a middle (mediating) position between systemic requirements imposed by the legislator, and the requirements emerging from the lifeworlds of the persons seeking justice. I focus on this last aspect as an important core of the discussion outlined here: the search directions all aim to create a larger role for citizens, perpetrators and victims. From a legal theory perspective, this makes the notions of lifeworld (as opposed to system) and communicative action central to the thinking on legitimacy, albeit that the liberal Enlightenment tradition of amongst others Habermas defines these concepts in a strictly language-oriented fashion, argumentative and by means of validity claims. Chapter 2 in this way offers a legal theory which can explain how the development of criminal justice as an enterprise (with system rationality ) connects with the emerging citizen and his/her lifeworld in the criminal justice system. It provides the setting for participatory efforts and expanded room for the argumentative input of persons seeking justice. This legal theory forms the background to the first part of this book: it gives words to the ambition of many mediation practices to organize a more participatory and communicative criminal justice in order to enhance legitimacy. I arrive at a three-fold translation of Habermas theory for criminal justice: the moral grounds of criminal law can no longer find support in sacred soil, but has by contrast become rational; in the application of the law, this leads to a radicalization of the procedural principle of the right to be heard; and it argues in favour of reshaping the principle of subsidiarity, or, in other words, offering room for lifeworld solutions before criminal justice comes into play. 260

3 3 Emancipation and taking part in proceedings Communication and participation surrounding criminal justice Chapter 3 is the empirical continuation of such a discursive theory of legitimacy. In their testimonies, perpetrators and victims show how according to them legitimacy through participation is shaped in the criminal justice practice. Through analyzing, by means of a qualitative methodology, the stories of people on the (attempts to arrive at) mediation or the refusal of mediation, the theory is not only illustrated in the flesh, but also reinforced with arguments, better defined and further differentiated. I have opted for mediation practice as this is strongly oriented towards the democratic content of the criminal justice procedure. The perpetrators and victims talk about their process, about meeting each other and about their relationship from the mediation to the criminal proceedings. They provide arguments for the thesis that increased legitimacy should be about increased participation, deliberative processes and having a say. It moreover becomes clear why this can only be organized to a minor extent within the parameters of the criminal hearing itself. This first part of the book, Chapters 2 and 3, in this way confirm and at the most deepen what has already been said so many times in the discussion on legitimacy. It offers a new perspective to by now familiar search directions, such as that into procedural justice, the right to speak and the reasoning of the judgment. The first part of the empirical exercise in this way supports the discursive legal theory. The final case study however is a dossier that brings the boundaries of this theory into view: it is a file that is literally too awful for words. The limited substantiation of Habermas communicative action finds its limits in serious crime. The theoretical insights about legitimacy are adequate, but not conclusive. 4 Facing the other Ritual aspects of mediation The analysis of the second part of the empirical exercise makes it clear where the current deliberative shift is not sufficiently implemented: mediation practice demonstrates a search for a secular, symbolic and ritual manner of dealing with victimhood, guilt and atonement. A reinforcement of the input from the lifeworld (as the core of a discursive legitimacy) entails more than argued consensus concerning legal standards. The mediation now appears as a form of social interaction which includes aspects of late-modern rituality. The victims and perpetrators show that a mediation ritual does not only centre on argumentative language or the exchange of questions and messages. Narrative, emotional, symbolic and physical communication form elements of present-day and contextually stylized vengeance rituals and atonements. Through symbolic acts and emotional expression, mediations sometimes assume the character of a rite of passage. And vice versa, medi- 261

4 ation practice sometimes, as a ritual, points out the critical boundary of an undeliberative ritual: when it fails, a modern pillory is erected. Contemporary, acceptable and recognizable images to also address the moral, ethical and existential aspects of crime and shaping the appropriate response thereto or way of dealing with it have largely disappeared from view in the rationalization of modern criminal law. The mediation practice shows that in a contemporary, individualized and deliberative shape, this ritual way of dealing with crime is designed anew. Respondents and mediators are searching for ways to address anew this register surrounding crime and punishment, which used to find room in symbolism and rituals. The second part of the book, Chapters 4 and 5, in this way constitute the reflection of a new aspect in the discussion concerning legitimacy. If legitimacy, viewed from a legal theory perspective, depends on the extent to which lifeworld communication can be recognized in a criminal law response, it becomes clear that the concepts of lifeworld and communicative action have to be considered much more broadly. This has given the discussion on participation a tension-filled reverse : I summarize this by the term rituality. 5 Rituality more closely considered Broadening of communicative action Where Chapter 4 shows how perpetrators and victims define the concept of rituality from practice, in Chapter 5 I connect these empirical notions to a theoretical framework. This exercise boils down to expanding and broadening the vocabulary of involvement, having a say and argumentative reasoning as communicative acts to strengthen legitimacy with symbolic, performative, embodied and ritualistic forms of communication. The aim of this chapter is to make a reasonable case for the assumption that mediation practices demonstrate the need for new, contemporary rituals surrounding criminal law as they are themselves used in this way by the parties. Especially in the context of serious violations, guilt and victimhood, it is necessary in response to offences to organize room for the emotional, moral and existential way of dealing with an offence. Where historically there was always a strongly ritualized form of dealing with punishment, atonement and guilt, these rituals as a result of secularization and democratization have been dressed down considerably. Theories currently being shaped on rituals in present-day Western society (the Ritual Studies) help in understanding these intuitions better and in interpreting them. To this end, I start by expanding the discursive theory with the aid of critical theorist Seyla Benhabib, who introduces an historical and situated concept of subject in criticism of Habermas. I then further elaborate the concept of ritual by means of a theoretical exploration of the concepts of linguisticality (symbolic language, narrativity, keeping silent), rite of passage, transcendence and the other. The practice of mediation furthermore proves to be demonstrative in the sense that 262

5 it points out the critical boundaries of a deliberative ritual: where the possibilities for mutual learning, reflection and criticism become pressurized, mediation can also sometimes end up as a contemporary hair shirt. The Chapter therefore concludes with a discussion of the undeliberativeness of the ritual. It emerges that the heart of deliberative rituality lies in a broad notion of inter-subjectivity; an intersubjective harmonization, which nevertheless may also include expressions of emotion, symbolic acts and moral argumentation, but which ultimately finds its critical boundary in the possibility of mutual consensus, dialogue, criticizeability, transparency and the option to refuse. Rite and argument form the two extremes of a communicative spectrum which constantly keep each other locked in a field of tension. 6 The meaning of mediation for legitimacy Final observations In the final observations, Chapter 6, I reconsider the central thesis: can the question of the legitimacy of criminal justice be better understood from the search direction of mediation? I elaborate how deliberativeness and rituality as two components of mediation in the framework of criminal law mutually relate in a late-modern society and how the ritual in itself can be considered deliberative and dialogical. I conclude that legitimacy, made operational as communicative action in the lifeworld, has to be understood more widely, including this register. From the analysis of the layered and multiple nature of communication on the criminal event it becomes better understandable why, despite all efforts made, the discomfort surrounding criminal justice persists. Although the responsive search directions are of real importance, they are also at the same time partly ineffective. They can only offer a limited answer to what lies behind the call for more criminal justice: the as ever contingent and incomprehensible moral experience of perpetratorhood or victimhood. A participatory revolution therefore contributes to legitimacy, but also offers the illusion of a solution; legitimacy is however as much about a communicative infrastructure which expresses in a symbolic, performative and ritual manner that this experience is and will always be incomprehensible, but that at the same time it constitutes the essence of the moral and existential event that crime is. Mediating between the criminal justice system and the lifeworld thus acquires a dual meaning. In the theoretical sense mediation refers to the core of what legitimacy is: the discursive legal theory expresses that legitimacy is about the question of to what extent a criminal law response is capable of taking up a middle position between both systemic requirements and lifeworld requirements. In the practical sense, mediation between perpetrators and victims presents a new search direction, in addition to modalities such as the right to speak and the reasoning of judgments. In practice, in short, they do legitimacy, albeit on a modest scale: by 263

6 facilitating the lifeworld communication between the perpetrator and the victim in the broad sense, and by mediating between criminal law as a system and the lifeworld of justice seekers. The legitimacy of criminal justice is no longer quietly undisputed. The deliberative search direction is an important, but not a conclusive solution at least not in the way in which it is presently implemented. Radical deliberatization also means room for the part of the lifeworld that does not arrive through arguments. The question of legitimacy therefore becomes more complex, but also opens new doors. Mediation demonstrates both the cultural need for, and also the shyness with, the new approach to these moral and existential aspects of guilt and suffering in a late-modern culture. In the concept of mediation as a deliberative ritual, the legitimacy debate finds a new perspective. Finally, I explore some future lines of reasoning and policy consequences from the analysis given above. 7 Epilogue Method and justification In the epilogue, finally, I outline how this book was crafted: I discuss the epistemological background, the way in which I have conducted interviews and how I have linked the stories of perpetrators and victims to the theory and the social debate. I give account of my choices of practices and respondents and elaborate the qualitative research method. Finally, I discuss the use of narrative material and life accounts, and indicate their relevance for legal science. 264