Restorative Justice Notes

Restorative Justice: Definition and Purpose

• Restorative justice is a non-violent, participatory, and deliberative way to resolve conflicts and respond to injustices.
• The goal of restorative justice is to address conflict and violence, and to promote peace and justice.

Injustices and Violence

• The origins of violence against one another can be traced back to stories of violence and competition, such as the story of Cain and Abel in the Bible.
• The brother is a symbol of any other, and the relationship with brothers can be problematic due to shared origins.
• Brotherly conflicts can be difficult to solve, as seen in places like South Africa, Israel, and Palestine, where people share common land and traditions.

Mediators and Bridge Builders

• According to Alexander Langer, mediators and bridge builders are necessary to create conditions for peaceful coexistence.
• These individuals are capable of self-critique, and are willing to detach themselves from their own community to meet with others.
• Mediators risk being accused of being traitors, but their presence is essential for creating peaceful periods in human history.

Models of Justice

• Justice is often used as a response to wrongdoing, rather than as a theory of social justice.
• Traditional models of justice include punishment, deprivation of liberties, and coercion, whereas restorative justice emphasizes democracy, freedom, and peoples' empowerment.

Responses to Wrongdoing

• Throughout history, humans have responded to wrongdoing with violence, self-made justice, vengeance, separation, and punishment.
• More challenging responses to injustices include negotiated agreements, rehabilitation, reparations, and forgiveness.

Retribution Theory

• The retribution theory is the most ancient and dominant model of justice, which responds to evil with evil.
• According to retribution, the offender must suffer in return, and punishment is the payback.
• Retribution is still used in criminal law and international relations, but it is problematic as it increases violence and turns justice into violence.

Critique of Retribution

• The retribution theory is problematic because it defines evil as evil, and increases violence rather than reducing it.

• Retribution perverts justice, turning it into violence, and violence into justice.

• Justice becomes what it wants to counter, and crime and justice become mimetic, similar.

• The retribution theory is used in practice, even if it is not supported in theory, as seen in the use of imprisonment and death penalty.### Theories of Justice

• Theories of justice can be divided into retribution and prevention models.

• Retribution is a counterproductive model of justice, leading to higher levels of violent criminality.

• Prevention, on the other hand, aims to prevent wrongdoing and is supported by modern democracies.

Prevention

• Prevention has two main strategies: general prevention and special prevention.
• General prevention aims to prevent wrongdoing in the first place by addressing the general population.
• Special prevention concerns strategies to prevent re-offending by addressing those who have already offended.
• General prevention is more important than special prevention to ensure safety in a state.

Deterrence

• Deterrence is a popular form of general prevention that relies on intimidation and fear.
• It is based on the idea that the threat of a negative consequence will bring about the expected behavior.
• Deterrence only works under certain conditions, such as the threatened consequence being likely and not excessive.
• It does not work with irrational, impulsive actors, or those who act out of beliefs or strong convictions.

Special Prevention

• Special prevention consists mainly of incapacitation, which aims to make offenders physically unable to reoffend.
• Incapacitation methods include imprisonment, death penalty, and chemical castration for sexual offenders.
• Neutralization forces individuals into a state of imposed non-action, but it does not motivate them to desist from reoffending.
• Democracies should only use incapacitation when strictly necessary and should never be cruel or inhumane.

Voluntary Compliance

• Democracies also deal with prevention through voluntary compliance, where rules are established democratically and respect human rights.
• Rules are perceived as directions of conduct that protect citizens' rights, rather than threats or orders to obey.
• Empirical research shows that when people perceive the law as just and protective, they are more likely to follow it.

Rehabilitation

• Rehabilitation is a special prevention strategy that puts the rule of conduct at the heart of intervention with offenders.
• Rehabilitation programs rely on the participation of offenders to foster their compliance and reintegration into society.
• It is an example of a participatory rule-centered model of justice that requires consent and compliance.

Restorative Justice

• Restorative justice is a participatory and consensual approach to responding to injustices.

• It involves the victim, offender, and community members participating together in the resolution of matters arising from a crime.

• Restorative justice includes mediation, conciliation, conferencing, and sentencing circles, and aims to achieve the reintegration of both the victim and the offender.

• The process is voluntary and participatory, with the goal of achieving a restorative outcome that meets the needs and responsibilities of all parties involved.### Restorative Justice (RJ)

• RJ is based on voluntary encounter and dialogue, involving all parties actively in a deliberative process aimed at addressing everyone's responsibilities and re-integrating those who have suffered from crimes.

• Core features of RJ include:

• Voluntariness

• Participation

• Active involvement

• Togetherness

• Dialogue

• Encounter

• Deliberative processes

• RJ is not an idealistic, idyllic form of justice aiming at peace, love, reconciliation, and forgiveness, but rather addresses the real needs of people and provides fair and just responses.

Differences between RJ and other forms of justice

• RJ differs from incapacitation, deterrence, and retribution, which are forms of justice centered on force and coercion and enforcement on the use of violence (Juspice).
• RJ procedures are not peaceful, but rather a struggle that addresses the real needs of people and provides fair and just responses.

Democracy and RJ

• RJ is a democratic way to respond to injustice, coherent and faithful to democracy even in difficult situations.
• RJ deals with democracy and remains committed to it, even when democracy is hard to follow.
• RJ is a method to follow in bad times, not just a luxury for good times.

Albert Dzur and Democracy inside

• Albert Dzur is a political scientist who supports RJ and has written about participatory innovation in unlikely places, including criminal justice.
• Dzur argues that RJ brings democracy into the unlikely place of violence and promotes a greater sense of public ownership to check the coercive apparatuses of the state.

Nils Christie and Conflicts as Property

• Nils Christie, a criminologist, published an article in 1977 titled "Conflicts as Property" which argued that conflicts are important elements in society and should be nurtured and made visible.
• Christie argued that victims of crime have lost their rights to participate and that a court procedure should restore their rights to their own conflicts.

Responsive Regulation

• Responsive Regulation is a flexible, dynamic regulatory system that adjusts to the conduct or behavior of those it regulates.
• Core features of Responsive Regulation include:
• Flexibility
• Dynamism
• When to punish, when to persuade
• Regulation pyramid
• Compliance and enforcement
• Escalation
• Minimum sufficient deterrence
• Punishment as a last resort
• Responsive Regulation is not just for governments, but also for private actors in civil society who can regulate responsively.

The Responsive Regulation Pyramid

• The pyramid has a flexible and dynamic shape, with persuasion and dialogue at the base, and punitive measures at the top.
• Each level of the pyramid corresponds to a type of social actor, from active citizens to delinquents.
• The pyramid is problem-focused, aiming to provoke and support people's compliance with the law and desistance from evil conduct.

Restorative Justice

• Restorative outcome: an agreement reached voluntarily through a restorative process, involving victims, offenders, and community members, aiming to meet individual and collective needs and responsibilities, and achieving reintegration of both victims and offenders.
• Core features of RJ:
• Voluntariness
• Participation
• Active involvement
• Togetherness
• Dialogue
• Encounter
• Deliberative processes

Differences between RJ and other forms of justice

• RJ is based on voluntary encounter and dialogue, whereas other forms of justice (incapacitation, deterrence, retribution) are centered on force, coercion, and enforcement of violence.
• RJ addresses real needs of people, whereas legalistic and punitive systems of justice tend to be distant, abstract, and formalistic.

Responsive Regulation

• Example of RR by South Australian Environmental Protection Authority Compliance and enforcement.
• Australian regulatory approach: proportional, consistent, transparent, targeted, and timely.
• Mixing compliance and enforcement, fostering the first while making pressure on the second.
• Dynamism in regulation: multiple and diverse reactions for diverse and multiple situations, prioritizing dialogue and persuasion to support voluntary compliance.

Key Principles of Restorative Justice

• Respect
• Persuasion
• Participation
• Fairness
• Responsibility-taking
• Positive sanctions
• Forward-looking
• Voluntary engagements

Reactions to RJ

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

Legitimacy and Compliance

• Legitimacy is essential for compliance.
• People comply with the law voluntarily when they perceive it to be just, fair, and legitimate, not because they fear punishment.
• Procedural Justice theory: obedience is not the same as compliance.

Conflict Resolution Models

• 3 ways of conflict resolution models:
• Judicial/ Adversarial Litigation
• Negotiated settlements
• Restorative Justice

Judicial/ Adversarial Litigation Model

• Decision-making process: judgement according to the law.
• Presence of a third party (judge) with authority and coercive power.
• Role of authority: to decide who is right and who is wrong.
• Law is conceived as a set of rules and obligations.
• Outcome: a win or lose situation, with a winner or a loser.

Criticisms of Judicial/ Adversarial Litigation Model

• Parties are adversaries.
• Defendant may not take responsibility and may not tell the truth.
• Victims may suffer from secondary victimization.
• Decision is enforced through force and coercion.

Global Ethics

• Global ethics is a new term that emerged over the past few decades and has established as a recognized area of study and distinct academic discipline.
• The Journal of Global Ethics was launched in 2005, focused on ethical issues at the global level.

Meaning of Global

• Global signifies a worldwide scale of commonality, implying a sense of togetherness and shared human rights.
• Global also means a worldwide scale of interconnection, where individual actions affect others across the world.

Meaning of Ethics

• Ethics derives from the Greek word "ethikos", meaning habit, custom, or character.
• Ethics is the study of concepts involved in practical reasoning, including good, right, duty, obligation, virtue, freedom, rationality, and choice.
• Ethics is an inquiry into the good life, overlapping with morality.

Socrates and Ethics

• Socrates' question remains a central theme in ethics: "What is the right conduct of life?"
• Philosophy is primarily defined in ethical terms.

Political Theories and Global Ethics

• Cosmopolitanism: all humans are equal and deserve equal respect, emphasizing global obligations.
• Nationalism: fellow nationals and compatriots have special obligations to one another, but not necessarily exclusionary or primarily focused on building walls.
• Political Realism: holds that international relations fall outside the bounds of morality, with states interacting as if in a Hobbesian state of nature, motivated by power and security concerns.

Cosmopolitanism

• Conceptual core: all human beings are (or should be) citizens in a single community, regardless of political affiliation.
• Three salient features: individuality, universality, and impartiality.
• Individuality: the individual has moral worth and is the ultimate unit of concern.
• Universality: every living human should be treated equally, as in Article 6 of the Universal Declaration of Human Rights.
• Impartiality: persons are ultimate units of concern for everyone, not just fellow nationals or religionists.

Taxonomy of Contemporary Cosmopolitanisms

• A wide variety of views exist, but all argue for a shared community among human beings regardless of social and political affiliation.

Rights-based Theories

• Global Human Rights: a key aspect of global ethics, focusing on the rights of all individuals worldwide.
• Critiques of Rights: recognizing the challenges and limitations of human rights in practice.

Global Ethics

• Global ethics is a recognized area of study and academic discipline that emerged in the past few decades.
• The term "global" signifies a worldwide scale of commonality and interconnection.
• Global ethics deals with complex issues and requires a sense of togetherness and belonging to the human family.

Importance of Passion and Case Studies

• Feelings and passions are crucial for ethical reasons and political actions.
• Case studies are essential in global ethics to confront specific problems and develop ethical positions.
• Case studies help in identifying and resolving ethical dilemmas and in making ethical decisions.

Female Genital Mutilation (FGM)

• FGM is a practice that involves partial or total removal of external female genitalia or other injuries to female genital organs for non-medical reasons.
• FGM is a violation of human rights and has negative health outcomes.
• FGM is a way to control women and is rooted in patriarchal and sexist attitudes.

Ethical Theories

• Kantianism: no maxim for lying can be universalized, and promise-keeping is meaningless in a world of liars.
• Virtue theory: focuses on the moral character of the person, rather than ethical duties and rules or consequences.
• Virtue theory is based on the concept of happiness, which is acting fairly and living well with others.

The Trolley Problem

• The trolley problem is a thought experiment that presents extreme scenarios to test moral intuitions.
• The problem involves choosing between two options: allowing the trolley to kill five people or diverting it to a sidetrack where it will kill one person.

Nationalism

• Nationalism is not necessarily an extreme form of patriotism marked by a feeling of superiority over other countries.
• Nationalism is based on the idea that nations are morally and politically relevant.
• Nationalism prioritizes the needs and interests of fellow nationals over those of outsiders and foreigners, but also acknowledges obligations towards non-nationals.
• The core argument of nationalism is the right to self-determination.