Crime control developments in post-modern societies and in societies in transition: looking for possible common features between seemingly unrelated discourses and practices, also with regard to the implementation of Restorative Justice

• Jurisdiction: South Africa
• Published date: 15 August 2019
• Date: 15 August 2019
• Author: Hans-Jürgen Kerner
• Citation: 2007 Acta Juridica 40
• Pages: 40-55

Crime control developments in post-modern

societies and in societies in transition: looking for

possible common features between seemingly

unrelated discourses and practices, also

with regard to the implementation of

Restorative Justice

HANS–JÜRGEN KERNER*

University of Tübingen

I INTRODUCTION

The ref‌lections presented in this contribution pertain primarily to

Europe, and in particular to Germany. They are based on personal

experience in the f‌ield of crime control and criminal justice

(policy),

1

apart from some 40 years in academia as a researcher and

teacher.

There are some commonalities to the various ways and means of crime

prevention, crime control and administering (criminal) justice in societ-

ies, which have to a greater or lesser extent been described and discussed

in texts or books on, for example: legal anthropology; systems of informal

versus formal social control; policing cultures or styles; procedural rules

in general or evidence-gathering in particular in adversarial versus

inquisitorial penal procedure models; common law versus civil law

systems; and systems of sanctions broadly def‌ined compared to structures

of formal penalties and so-called penal measures narrowly def‌ined.

* Dr iur (Tübingen); Prof of Criminology, University of Tübingen, Germany.

1

Among those f‌ield experiences were or still are positions as Member of a Co-ordinated

Council of Europe, Strasbourg, Fellowship Team for the study of the state of organisedcrime

and its control in selected COE member States; Representative for the Federal Republic of

Germany at the COE (European Committee on Crime Problems, ECCP within the General

Secretariat, Scientif‌ic Council); Judge at the Hanseatic High Court of Appeal, criminal law

chamber, in the City-State of Hamburg; President of the NationalAssociation for Social Work,

Penal Law and Crime Policy (DBH, Berlin and Köln, Germany), which runs, inter alia, the

German co-ordination and development off‌ice for victim-offender-mediation (ongoing);

President of the German Crime Prevention Congresses, 12 already having taking place by

2006, attended by practitioners, policy makers, and scholars from many f‌ields, such as schools,

voluntary associations, local youth authorities, local and regional crime preventions schemes,

street work associations, probation associations, and the police (ongoing); Chair, German

Foundation for Crime Prevention and Resettlement of Offenders (Köln, Germany) (ongoing);

Co-principal Organizer of the German Victim-Offender-Statistics, supported by the Federal

Ministry of Justice (Berlin and Bonn, Germany) (ongoing).

40

2007 Acta Juridica 40

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This paper takes all those important issues and problems for granted. It

aims at a more meta-analytical exercise in the form of an essay. In the f‌irst

part, the so-called standard state of affairs in crime control situations and

developments shall be taken into consideration. This, here, will be called,

for the sake of both brevity and simplif‌ication, the ‘routine f‌ield’ of crime

control in modern or post-modern (i e post-industrial) states. In the

second part of the paper, what one might call the critical state of affairs in

crime control situations and developments shall be taken into

consideration. This shall be called, again for the sake of brevity and

simplif‌ication, the ‘exceptional f‌ield’ of crime control in states or societies

in transition after the end of civil wars. Scenarios where the fall of brutal

dictatorships are usually characterised, inter alia, by endemic corruption

among the leading families, clans or ethnic groups; or just after the

breakdown of the whole complex mix of an ideologically intertwined

system, as represented by a ‘unif‌ied’ state, its society, economy, culture,

religion or secularisation. If the old system was suffused with mass

violence or even ubiquitous violence, in particular genocide, and

therefore with large-scale victimisation of the civilian population,

including massive human rights violations and, particularly in a series of

specif‌ic cases, heinous crimes against humanity, such a situation may even

be called ‘hypercritical’.

2

The most basic hypotheses underlying the following considerations

are:

• that the ‘routine f‌ield’ and the ‘exceptional f‌ield’ pose such

fundamentally different contexts for the responsible peoples and

groups, such divergent burdens and challenges for creating and

upholding interpersonal trust, for securing positive public order, and

for inculcating belief in law and justice, that from the outset

practically ‘everything is or seems different’; and

• that the state of transition – with its ‘exceptional f‌ield’ – is consumed

by demands for a swift conversion into a settled state of some kind,

otherwise the lack of foreseeable closure may cause fresh intolerable

pain among the many victims and other people concerned, a pain

which threatens to undermine the legitimacy of the emerging new

system of state, economy and society.

Moving towards a ‘routine f‌ield’ contributes to the calming of emotions,

to people adapting to ‘a new future’, and to becoming accustomed to

rules now applicable to all members of society, which, once attained, may

2

In Germany, probably like in many other countries, there is an increasing amount of

treatise and textbooks on ways and means of dealing with the aftermath of such situations via

international penal law; see, most recently,the voluminous and thorough textbook by G Werle

Völkerstrafrecht 2ed (2007).

41CRIME IN POST-MODERN SOCIETIES AND SOCIETIES IN TRANSITION

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