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43 S. Cal. L. Rev. 55 (1970)
Victim Compensation and Responsibility

handle is hein.journals/scal43 and id is 71 raw text is: VICTIM COMPENSATION AND RESPONSIBILITY STEPHEN SCHAFE9* Ancient codes which ordered restitution to the victim as part of the obligation of the criminal reflect the common origin of punishment and compensation. Gradually the fine was entirely appropriated by the state and the injured party was compelled to rely on the civil courts for his remedy. The symbolic nexus between the wrongdoer's debt to society and his responsibility to the victim was vitiated and the likelihood of recovery by the latter was severely circumscribed. Most compensation proposals pro vide an adequate remedy for the victim but maintain this distinction between the crime, the criminal, and the victim. The author suggests that in those cases where incarceration is not a practical necessity the reformative and rehabilitative functions of the criminal law would be enhanced by a system of correctional restitution. I. HISTORICAL ORIGINS OF COMPENSATION AND RESTITUTION Personal indemnification of the victim by the offender or his family is one of the basic pillars of primitive and early Western law.' The practice of informal restitution, first in blood and latter in the form of some economic fine, grew up when political institutions were based on kinship ties or tribal organization and there was no central authority to determine guilt or the form of punishment. The criminal's obligation to pay the victim under the Code of Hammurabi, the death- fine of ancient Greece, restitution required by Indian Hinduism, and compensation granted under the Law of Moses are examples of pecuniary compensation to the victim in early societies. The Code of Hammurabi, for instance, made clear that the criminal's pecuniary obligation served not only to make the victim whole, but also to increase the severity of the criminal's punishment. In its merger of * Professor of Sociology and Criminology, Northeastern University. D. Jur. 1933, Professor Agrege 1947, University of Budapest. 1. See, e.g., S. SCHAFER, RESTITUTION TO VICTIM1S OF CRIME (1960); S. SCHAFER,-THE VICTII AND His CRIMINAL (1968); Rico, L'indenlorisation des Victimes d'actes crininels: etude comparative, I ACTA CRIMINOLOGICA 261 (1968); Schafer, The Correctional Rejuvenation of Restitution to Vctims of Crime, in W. RECKLESS & C. NEWMAN, INTERDISCIPLINARY PROBLEMS IN CRIMINOLOGY 159 (1965); Wolfgang, Victim Compensation in Crimes of Personal Violence, in id. at 159.

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