Een redelijk ritueel. Bemiddelen tussen strafrecht en leefwereld

Abstract

Mediating between the criminal justice system and the lifeworld In the last few years, criminal justice has increasingly become the object of critical social attention. 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. 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 mediation 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.