Libertarian.ie

The Libertarian Association of Ireland
http://www.libertarian.ie
lai'at'libertarian'dot'ie

Legal Theory, Polycentric Law, Restitutional and Restorative Justice

Please also see:

http://www.libertarian.ie/historical_cases.html: 'Historical Cases'.
http://www.libertarian.ie/ireland.html: Libertarian Commentary on Ireland.
http://www.libertarian.ie/: Irish libertarian association

Legal History Resources

http://szabo.best.vwh.net/lawlinks.html
Nick Szabo -- Resources for the History of Commercial Law and Governance
Ancient Law
Commercial Law
Business Relationships
Maritime Commerce
Commercial Institutions
Treaties, Constitutions, and Taxation
Surveys and Analysis
http://www.llrx.com/features/irish.htm
Guide to Irish Law
By Dr. Darius Whelan
Dr Darius Whelan is a lecturer in law at the Institute of Technology, Tallaght, Dublin, Ireland. He established the Irish Law discussion list and the Irish Law web site (now at www.irish-law.org) in 1994. He has written articles on electronic access to Irish law for the Irish Law Times, the Bar Review, the Internet Newsletter for Lawyers and the Irish Times. He has previously held lecturing posts at University College Cork and Waterford Institute of Technology.
Published August 1, 2001

Polycentric Law Theory

http://www.tomwbell.com/writings/JurisPoly.html
The Jurisprudence Of Polycentric Law
The University of Chicago
School of Law
A Paper Submitted to Professor Richard A. Posner
In Accordance with the Requirements of 482: Jurisprudence & 499: Independent Research
by Tom W. Bell
Chicago, Illinois
August, 1992
What has jurisprudence got to do with statism? Most people scarcely separate the two. When attempting to justify the State they routinely cite the need for an independent and objective means of resolving disputes.[1] And when they think of jurisprudence, most people think of what judges do as State officials and what academics say about State courts. But nothing in the formal definition of jurisprudence necessarily binds it to statism. "Jurisprudence in its widest sense is the science of law."[2] This description leaves ample room for the jurisprudence of non-statist, or "polycentric," law. [p. 1/p. 2]
http://osf1.gmu.edu/~ihs/w91issues.html
Humane Studies Review
Volume 7, Number 1 Winter 1991/92
Polycentric Law
by Tom W. Bell
Current Issues In Law
As any cynic will confirm, money and law have a lot in common. But their ties run even deeper than most suspect. Money and law had similar origins: both arose spontaneously out of the undirected actions of individuals seeking common standards for mutual coordination. Money and law developed in parallel fashion, too: medieval Europeans enjoyed competition in currencies and legal systems until monarchies took over both fields. And state monopolies in money and law now present common hazards: they are imposed by fiat, inefficiently operated, and (as the cynics point out) jointly corrupting. However, a new generation of scholars has come to question the need for state monopolies in money and law. In the place of central banks they advocate a free banking system. In the place of state legal systems they advocate overlapping private jurisdictions in free and open competition -- a polycentric legal system.
http://www.independent.org/publications/books/book_summary.asp?bookID=21
To Serve and Protect
Privatization and Community in Criminal Justice
By Bruce L. Benson
Foreword by Marvin E. Wolfgang
While modern criminal justice has been viewed primarily as properly a government concern, Bruce Benson demonstrates that, for many centuries, crime control was almost entirely private and community-based. Government police forces, prosecutors, courts, and prisons are all recent historical developments results of a political and bureaucratic social experiment which, neither protects the innocent nor dispenses justice.

Ireland and Irish Legal History and Theory

http://ua_tuathal.tripod.com/magna.html
MAGNA CHARTA HIBERNIAE
(12 November, 1216)
The Magna Charta 1215 represents the maturation of the English legal system. We have reprinted here the Magna Charta Hiberniae, to show the first official introduction of feudalism into Ireland. However, we are interested in discovering how much of this document was actually based on the Irish legal system, which it now, it turn, superceded. Tommy Makem once said: "Even the Magna Charta was based on Brehon law," but I have never been able to find out his exact foundation for this. The notion, however, is not preposterous, considering that:
1. Many of the signatories had been members of Cambro-Norman invading families, and held lands in Ireland, since the invasion. They were undoubtedly familiar with Irish law, since they had administered there for almost 50 years.
2 In fact the Irish system had been preserved by the short-lived Treaty of Windsor, 1175, between Henry II and Rory O'Connor, negotiated by Laurence O'Toole. Even William Marshall's wife, Isabella, was the daughter of Strongbow and Aoife, Aoife being the daughter of Mor O'Toole and Dermott MacMurrough, both royal families of Leinster. She was also niece to Laurence.
3 The Irish legal system had fully matured by the eighth century, long before its Anglo counterpart. There was a unique (compared to Anglo and European systems) concept of national or federal law, applying to each person in each locality. While not embodied in a single document, these rights of individuals were beyond the kings power to legislate. Ironically, it was this 'lack of centralized power' on the part of the high king of Ireland that was blamed for the success of the Cambro-Norman Invasion in the first place.
http://ua_tuathal.tripod.com/law.html
The Definitional Problem with Brehon Law
by Vincent Salafia
For centuries, scholars have discredited the Brehon laws as bad law and bad literature, a seemingly unwanted reminder of both Golden and Dark Ages, unbearable in either instance. Since their rediscovery and partial publication around the turn of the century, many have indeed praised them. Yet, no one wanted to 'own' them, with each literary, legal, historic, political or religious camp formulating reasons as to why they do not belong in their domain. Thus, they fell through the cracks. The last ten years have been witness to revived interest in the laws. Yet, the problem of definition remains, more controversial than ever. If they are law, why are they not studied and practiced as such. If literature, why don't they appear in any literary collections or degree programs? If politically relevant, why is it that the founders of the Republic of Ireland in 1921 did not reclaim them, instead of reaffirming the English common law system? Today, they are tossed around Irish parliamentary debate as legendary precedent for proposed legislation, without even knowing what they say. What is the legal effect of this? Is it somehow a final unofficial recognition of the true common law heritage of Ireland. If so, why doesn't the Irish government allocate money to their translation and publication, and officially reincorporate them in some form?
http://www.catholicireland.net/pages/index.php?nd=198&art=446
The land of unlikeness: exploration into reconciliation
David Stevens, who has long experience of community work in Northern Ireland, explores the meaning of reconciliation in troubled communities and how it can be achieved.
http://www.restorativejusticeireland.org/model.html
A model for community justice
http://www.extern.org/restorative/
Restorative Justice Ireland Network Website
This Website seeks to:
- Provide accurate information about the various restorative justice programmes in the Republic of Ireland and Northern Ireland;
- Be an access point for helpful contacts, international and regional research, and information related to restorative justice;
- Gather and list the various opportunities for people to become involved in restorative justice, through conferences and training events;
- Assist people from outside the region in understanding the unique growth of restorative justice in Ireland.

State of Ohio Department of Rehabilitation and Correction

http://www.drc.state.oh.us/web/Articles/article28.htm
A Shifting Paradigm
Modern Restorative Justice Principles Have Their Roots in Ancient Cultures
Reginald A. Wilkinson, Director
Ohio Department of Rehabilitation and Correction
Corrections Today, Editorial, December 1997
The roots of the modern restorative justice movement can be traced to Kitchener, Ontario. In 1974, a Mennonite probation officer and a volunteer service director organized a discussion group to develop a more humane and efficient criminal justice system. The concept of restorative justice and its basic principles have evolved continuously since those initial discussions in Canada 23 years ago.
But a case can be made that restorative approaches to crime actually date back thousands of years. The Babylonian Code of Hammurabi (c. 1700 B.C.) prescribed restitution as a sanction for property offenses, and the Sumerian Code of Ur-Nammi (c. 2060 B.C.) required restitution for offenses of violence. Convicted thieves were ordered to pay double the value of stolen goods as dictated by the Roman Law of the Twelve Tables (449 B.C.). Germanic tribal laws promulgated by King Clovis (496 A.D.) called for restitutional sanctions for both violent and nonviolent offenses. The Laws of Ethelbert (c. 600 A.D.) included detailed restitution schedules. The Hebrew culture promoted the concept of peace as much as any ancient people.
A shift in paradigm took place with the Norman invasion of Britain, however. By the end of the 11th century, crime was no longer perceived as injurious to persons, but rather was seen as an offense against the state. William the Conqueror developed a legal system for centralizing power. WilliamÕs son, Henry I, issued laws detailing offenses against the ÒkingÕs peace.Ó Infractions that violated this peace were considered to be an offense against the king; the actual victim was denied any significant role in the justice system.
http://www.drc.state.oh.us/web/Articles/article31.htm
Interview Regarding Restorative Justice
Reginald A. Wilkinson, Director
Ohio Department of Rehabilitation and Correction
Full Circle, a newsletter of the Restorative Justice Institute, January 1998
Reginald A. Wilkinson was named director of the Ohio Department of Rehabilitation and Correction by Gov. George V. Voinovich in 1991. He is recognized nationwide for his dedication to the field of corrections. He began his correctional career in 1973 as a coordinator of volunteer services at the Lebanon Correctional Institution near Cincinnati. He now serves as President of the American Correctional Association. Director Wilkinson believes in formulating a balanced approach to the challenges facing corrections in the 1990Õs.
http://www.drc.state.oh.us/web/Articles/article34.htm
The Emergence of Restorative or Community Justice in the United States
Reginald A. Wilkinson, Director
Ohio Department of Rehabilitation and Correction
Frontiers of Justice: Volume 2: Coddling or Common Sense? (1998)
Picture yourself as the victim of a serious assault. Although you are making progress in the healing process, several recurring questions plague you: "why did he choose me?" "Am I still in danger?" "What kind of person is the man who assaulted me?" "Is he sorry for what he did to me and to my family?" Victims of crime, who wish to, may now ask those pressing questions of their assailants through a process called victim/offender mediation. Mediation is only one facet of many in a national movement called restorative justice.
In restorative justice, crime is seen as something done against victims and the community, not just a violation against the state or government. The Center for Restorative Justice & Mediation (1996) at the University of Minnesota described crime as "any wrong that weakens relationships between people or harms community living. In restorative justice, the offender becomes accountable to those he or she has harmed. Justice is done for victims, victimized communities, and offenders."
http://www.drc.state.oh.us/web/Articles/article64.htm
Restorative Justice: A Concept Whose Time Has Come
Director Reginald A. Wilkinson, Ed.D., Director
Ohio Department of Rehabilitation and Correction
Corrections Management Quarterly, 2000
The idea of restorative justice has been knocking on my subconscious for some time. As director of the Ohio Department of Rehabilitation and Correction (DRC), a large agency that includes prisons, parole, and probation functions, I reasoned that there must be different ways to punish and treat offenders, especially those who are nonviolent. As a justice professional, I have been intrigued by news accounts of alternative sentencing. An example that comes to mind is the story about the Alaskan elders who exiled two youthful lawbreakers to an island to make amends and to ponder the effects their actions had on the entire tribe. Having an interest in history, I am aware of the many "cycles" of justice: from restitution mandated in the Code of Hammurabi and Roman Law, to the pillorying, whipping, and mutilation of criminals, to absolute silence to instill penitence, and to the modern system of the "state" as victim. However, all of these "justice" practices seemed too remote or inadequate to apply to todayÕs enormous and complex system of laws and punishment.
http://www.drc.state.oh.us/web/Articles/articles.htm#Community%20Justice
Published Articles
Reginald A. Wilkinson, Ed.D., Director
Ohio Department of Rehabilitation and Correction

Other International State/government Resources: Restorative Justice

http://www.ojp.usdoj.gov/nij/rest-just/ch1/reemerge.htm
US Department of Justice
The Reemergence of Tribal Society and Traditional Justice Systems
by Carey N. Vicenti, Chief Judge, Jicarilla Apache Tribe
(Originally published in Judicature, Vol. 79, No. 3, November-December 1995)
http://www.justice.govt.nz/pubs/reports/1997/sentence_guide/chapter_3_a.html#3.5
New Zealand Ministry of Justice
3.5 Restitution
The Rationales and Goals of Sentencing
Restitution is based on the premise that the offender should put right the wrong done by his or her conduct. This aim is often given effect through a reparation or compensation order which may be imposed as part of sentencing. As well as monetary payments to the victim, restitution may involve an apology or a culturally specific act of recompense. The offender may perform a service for the victim or for a public or charitable body nominated by the victim, or make a donation to a nominated charity. Service to the community or donations to charity may also be appropriate when there are no identifiable victims.
http://www.aic.gov.au/rjustice/
Restorative justice
Australian Institute of Criminology
... A very different way of thinking about traditional notions such as deterrence, rehabilitation, incapacitation and crime prevention ... It also means transformed foundations of criminal jurisprudence and of our notions of freedom, democracy and community. (Braithwaite)

International University Resources: Restorative Justice

http://www.sfu.ca/crj/
Simon Fraser University, Canada
Welcome to the Centre for Restorative Justice
The Centre for Restorative Justice, in partnership with individuals, the community, justice agencies and the University, exists to support and promote the principles and practices of restorative justice by providing education, training, evaluation and research.. The Centre for Restorative Justice is an initiative by the Simon Fraser University School of Criminology, funded by the Correctional Service of Canada. It is housed in the School of Criminology, West Mall Complex 1694. See the Contact Us page for hours of operation.
Restorative Justice is an old idea with a new name. Its roots can be found in Aboriginal healing traditions and the non-retaliatory responses to violence endorsed by many faith communities.
It represents a return of the simple wisdom of viewing conflict as an opportunity for a community to learn and grow. It operates on the premise that conflict, even criminal conflict, inflicts harm, and therefore individuals must accept responsibility for repairing that harm. Communities are empowered to choose their response to conflict. Victims, offenders and communities actively participate in devising mutually beneficial solutions, and implementing those solutions. Conflicts are resolved in a way that restores harmony in the community membersÕ relationships, and alllows people to continue to live together in a safer, healthy environment.
http://2ssw.che.umn.edu/rjp/
Center for Restorative Justice & Peacemaking
School of Social Work
University of Minnesota, USA
The Center for Restorative Justice & Peacemaking at the University of Minnesota School of Social Work on the University's St. Paul campus has been established to provide technical assistance, training, and research for those in the state of Minnesota, nationally, and internationally in support of restorative justice practice and principles.
Through restorative justice, victims, communities, and offenders are placed in active roles to work together to...
* Empower victims in their search for closure
* Impress upon offenders the real human impact of their behavior
* Promote restitution to victims and communities
http://peace.fresno.edu/rjp/
Fresno Pacific University, USA
RESTORATIVE JUSTICE PROJECT
Restorative Justice Implementation, VORP Resource and Training Center
Getting to the Roots of Justice
Center for Peacemaking and Conflict Studies

International Advocacy Groups: Restorative and Restitutional Justice

http://www.restorativejustice.org.uk/
.'Restorative Justice is a process whereby:
(i) All the parties with a stake in a particular conflict or offence come together to resolve collectively how to deal with the aftermath of the conflict or offence and its implications for the future, and
(ii) Offenders have the opportunity to acknowledge the impact of what they have done and to make reparation, and victims have the opportunity to have their harm or loss acknowledged and amends made'
Restorative Justice takes place in the criminal justice system, and helps communities to deal with conflict in schools, the workplace and neighbourhoods. It is a relatively new idea here in the UK, (since 1980s) but it has been practised across the world. Government, the EU and the UN believe in its potential and are starting to legislate or make recommedations for the implementation of practice.
http://www.restorativejustice.com/
Restorative justice is a valued-based approach to responding to wrongdoing and conflict, with a balanced focus on the offender, victim, and community. Restorative justice focuses on transforming wrongdoing by healing the harm, particularly to relationships, that is created by harmful behavior. The primary stakeholders in restorative justice processes are the person(s) who caused the harm (offender), the person(s) harmed (victim), and the affected community. By collectively identifying and addressing harms, needs, and obligations resulting from wrongdoing, we are able to create healing and put things right again. This web site was created to give those communities and organizations wanting to adopt restorative justice practices a foundation of restorative justice theory and practice. To that end, the research, experiences, and writings of Dr. Cavanagh are shared here.
http://www.restorativejustice.org/
Restorative justice is a systematic response to wrongdoing that emphasizes healing the wounds of victims, offenders and communities caused or revealed by the criminal behaviour.
Practices and programs reflecting restorative purposes will respond to crime by: (a) identifying and taking steps to repair harm, (b) involving all stakeholders, and (c) transforming the traditional relationship between communities and their governments in responding to crime.
http://www.realjustice.org/