Restorative Justice Course Notes

Restorative Justice Course Overview

• The course focuses on the exploration of restorative justice, its theory, and practice, including philosophical and juridical perspectives.
• The course will examine the key issues restorative justice addresses, such as conflict and violence, and the aspiration for peace and justice.

The Issues at Stake

• Restorative justice is a non-violent, participatory, and deliberative way to resolve conflicts and respond to injustices.
• The concept of brotherhood and the relationships between brothers can be problematic, as seen in the killing of Cain and Abel in the Bible and the founding of Rome.
• The brother is a symbol of any other, and the love towards brothers is not easy or spontaneous.
• Frécocity, a French word coined by Lacan, mixes brotherhood with ferocity, highlighting the complexity of relationships between brothers.
• Examples of places where conflicts are hard to solve include South Africa, Israel, and Palestine, where people share common land and must coexist.

Models of Justice

• Justice is used to respond to wrongdoing, not to address social justice or inequalities.
• The traditional model of justice is retribution, which aims to respond to evil with evil, often through punishment and violence.
• Retribution is problematic, as it can lead to an increase in violence and does not address the root causes of wrongdoing.
• Alternative models of justice include negotiated agreements, rehabilitation, reparations, and forgiveness.
• Prevention is another theory, which aims to prevent wrongdoing through general and special prevention strategies.
• General prevention addresses the general population, while special prevention addresses those who have already offended.
• Deterrence is a popular form of general prevention, which uses the threat of punishment to deter individuals from committing crimes.
• Incapacitation is a form of special prevention, which aims to prevent re-offending by neutralizing offenders.

Critique of Traditional Justice Models

• Retribution and prevention models are based on force and coercion, which are not compatible with democratic values.
• These models can lead to an increase in violence and do not address the root causes of wrongdoing.
• Deterrence and incapacitation can be problematic, as they use intimidation and violence, which can be counterproductive.

Restorative Justice as an Alternative

• Restorative justice is a participatory, rule-centered model of justice that requires consent and compliance.

• It addresses the root causes of wrongdoing and focuses on rehabilitation and reintegration.

• Restorative justice is based on democratic values, such as respect for human rights and the protection of life.

• It is a more effective and sustainable way to address conflicts and wrongdoing, as it promotes voluntary compliance and social inclusion.### Restorative Justice and Responsive Regulation

• Restorative justice is an alternative approach to justice that focuses on repairing the harm caused by a crime, rather than punishing the offender.

• It is based on the principles of voluntariness, participation, active involvement, togetherness, dialogue, encounter, and deliberative processes.

• Restorative justice is a democratic way of responding to injustices, as it involves all parties affected by the crime in the resolution process.

Critique of Traditional Punitive Justice

• Traditional punitive justice systems are based on force, coercion, and punishment, which can be counterproductive and lead to more harm.
• These systems are often distant, abstract, and formalistic, and can be unresponsive to the needs of victims and offenders.
• Punitive justice systems can also be based on the idea of retaliation and revenge, rather than public virtue and justice.

Restorative Justice and Democracy

• Restorative justice is a way of responding to injustices that is consistent with democratic values, as it involves the participation of all parties affected by the crime.
• It is a method of promoting democracy and public virtue, as it encourages citizens to take an active role in the resolution of conflicts.
• Restorative justice can help to promote a sense of public ownership and responsibility, as it involves citizens in the resolution of conflicts.

Responsive Regulation

• Responsive regulation is an approach to regulation that is based on the idea of responding to the conduct of those being regulated.
• It is a flexible and dynamic system that can adjust to different situations, and can be used in a variety of contexts, including criminal justice and environmental protection.
• Responsive regulation is based on the idea of using persuasion and dialogue to encourage compliance, rather than relying on coercion and punishment.

Features of Responsive Regulation

• Flexibility and dynamism, as the system can adjust to different situations and contexts.
• Ability to respond to the conduct of those being regulated, rather than relying on a one-size-fits-all approach.
• Use of persuasion and dialogue to encourage compliance, rather than coercion and punishment.
• Emphasis on building voluntary compliance and promoting a sense of public ownership and responsibility.

Examples of Responsive Regulation

• Australia has used responsive regulation in a variety of contexts, including environmental protection and criminal justice.
• The South Australian Environmental Protection Authority has used responsive regulation to promote compliance and enforcement in a way that is proportional, consistent, transparent, and timely.

Conclusion

• Restorative justice and responsive regulation offer a new model of justice that is based on democratic values and principles.
• This model is focused on promoting public virtue and justice, rather than relying on punishment and coercion.
• It is a way of responding to injustices that is more effective, efficient, and fair, and can help to promote a more peaceful and just society.### Punitive Justice vs. Restorative Justice
• Punitive justice is offender-centered, requiring the offender to punish, whereas the victim is irrelevant.
• Punitive justice is unable to look at the future, only focusing on the past and the legal deed deserving punishment.
• Punitive justice simplifies the quest for justice, downgrading it to the use of punishment, which is not effective in solving problems.

Restorative Justice

• Restorative justice is an innovative approach that protects rather than controls, focusing on the future and the well-being of people and communities.
• Restorative justice involves rules of conduct that demand voluntary compliance, with rules issued after voluntary and participatory processes involving those regulated.
• Participation and compliance are fundamental, and rules are meant to protect fundamental human needs and rights, rather than punish disobedience.
• Restorative justice uses positive sanctions, based on voluntary compliance, and focuses on reparation, restitution, and corrective actions.

Components of Restorative Justice

• Respect
• Persuasion
• Participation
• Fairness
• Responsibility-taking
• Positive sanctions
• Forward-looking engagements
• Victims, offenders, and citizens are all involved

Reactions to Restorative Justice

• Respect
• Motivation
• Commitment
• Compliance
• Desistance
• Mobilization of personal resources
• Ownership
• Empowerment

Legitimacy and Compliance

• Legitimacy is essential for compliance, with people complying with the law voluntarily when they perceive it to be just, fair, and legitimate.
• Legitimacy depends on the capability of norms to protect essential goods and human rights, procedural fairness, and the degree of democracy in the system.

Conflict Resolution Methods

• Judicial/Adversarial Litigation
  • Decision-making process is a judgment according to the law
  • Third party is fundamental, holding the power to issue the judgment
  • Adversarial debate is required, with parties opposing each other
  • The law plays a crucial role, with rules seen as obligations, orders, or commands
• Negotiated Settlements
  • Domain of compromise and reciprocal concession
  • Demands are reciprocally reduced, and conflicting interests are sorted out
  • Autonomy of the parties is essential, with the process fully owned by the parties
  • Negotiations can be carried out with or without the help of a third party (mediator)
• Restorative Justice
  • Focuses on the harm, needs, and obligations of all affected parties
  • Aims to create a plan to heal the harm and avoid repetition
  • Involves participation, respect, and fairness, with a focus on the future and well-being