Appunti Restorative Justice testo.pdf

Restorative justice notes - course of global ethics and restorative justice Giustizia Sociale Ed Economica Università Cattolica del Sacro Cuore - Milano (UCSC MI)...

Restorative justice notes - course of global ethics and restorative justice Giustizia Sociale Ed Economica Università Cattolica del Sacro Cuore - Milano (UCSC MI) 66 pag. Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ Lecture 0 – information What is restorative justice? It is a way to resolve conflicts in a non-violent participatory and deliberative way. This module is intended to provide students with an exploration of restorative justice, through the study of its theory and practice. Theoretical analysis will take into account the philosophical and juridical perspectives. The course will explore the key issues restorative justice tries to address conflict and violence, on the one hand, aspiration for peace and justice, on the other. Compulsory readings are of two kinds: Basic principles on the use of restorative justice programmes in criminal matters and recommendation concerning restorative justice in criminal matters. Also, handbook on restorative justice programmes (by UN) and Restorative justice and responsive regulation (Brathwaite 2002 Oxford Press) with chapter 2/3/4/6. To pass: study legal sources (Un basic principles and CE recommendation) with basic principles and core values– study of the UNODC handbook with who, what, how, when – study of Brathwaite 2/3/4/6 in the book with responsive regulation and other theories. Lecture 1 – the issues at stake It is a non-violent participatory deliberative way to resolve conflicts, to respond to injustices. It is an innovative form of justice. The beginning is injustices. This is where the road begins. The origins of violence against one another. The question of the other. This is the subtitle by Todorov, the conquest of America. This has been a violent period and the consequences led to violence and discrimination still present. Many narratives put at the beginning the killing of others. This is the case of the story of Cain and Abel in the bible but also of the founding of Rome with Romulus and Remus (twin brothers, and Romulus kills Remus and in that moment the town of Rome is founded). These are stories of violence and competition. Interestingly, many legends and stories (such as Greek tragedies) put at the beginning the violence against brothers. There is an author, philosopher, Gerard Haddad, recently wrote a book “Le complex de Cain, terrosime, haine de l’autre et rivalitè fraternelle”, Paris. This study of extreme interest shows us how the relationship with brothers isn’t an easy one. The brother is the symbol of any other. We might say we are all brothers and sisters belonging to mankind. Actually, the brother is the first person we meet, stranger we meet, enemy and also loved one. The love towards brothers is however not easy or spontaneous. Frérocité is a French word invented by Lacan, mixing brotherhood with ferocity. The problem in the relationship with brothers is that brothers spring from the same origin, the origin is in common with us. Therefore, they cannot divide themselves, they cannot be separated because they share something in common which is not possible to erase. This is why brotherly conflicts can be so problematic. The brother is my any other. There are places where conflicts are very hard to solve because people share something in common that cannot be divided. This can be South Africa, Israel and Palestine. These places will be again mentioned. These places share the fact that there are several peoples speaking several languages, having several different traditions, compelled to live in the same land that each one of these consider his own mother land. Therefore, these lands in common are one land for several people and it is a place that cannot be divided. People are compelled to live together. This is not easy. The brother, as 1 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ the first stranger, can become the first enemy. According to Haddad, the relationship with brothers needs to be build. Coexistence needs to be built; it is not spontaneous. It needs commitment. Alexander Langer (1964-1995) was an Italian politician engaged in nonviolent movement. He died by suicide very young but has written a lot. One of the most interesting is a tentative decalogue for the arts of interactive togetherness. In one of the rules in the decalogue, we find the importance of mediators and frontiers explorers. Rule n.8 of this decalogue, is the importance of people, groups and institutions that sit ways themselves consciously by the border of the communities forced to live together. These people are capable of being mediators, bridge builders and so on, are people that can foster and create conditions for pacific and non-violent coexistence. They risk consciously between conflicting communities and they are those who create peaceful periods in mankind. According to him, these people are people capable of self-critique with regards to their own community in the first place. People, groups and institutions that sit way themselves at the borders and are capable of criticizing their own violence, their own injustices in the first place. Because of this, rare capability of self-criticism, these mediators are often accused to be traitors. They are, as alexander Langer puts it. they trait compactness of each group in order to become a bridge towards the others, across ferocity against any brothers and sisters. These mediators must detach themselves from the compactness of one side in order to go across the other side and meet with others. Their presence remains risky. They remain on their side but are able to go across the street, the frontier, the world, to meet others. This what restorative justice deals with: ways to build bridges to detach from one’s compactness in order to meet the others. This is not easy. This is the core message of restorative justice. it is possible to live with difficult others no matter what has happened between peoples and how hard the conflict is, how violent it was. No matter how harmful the consequences have been. Justice is represented by a woman with shaded eyes and has a balance with a scale. She is neutral, she is impartial, far away from those same moments of conflict and violence in which injustices find their origins. This figure, neutral, cold blooded, has very little to do with injustices. Injustices are never cold blooded. How to transform the idea of justice to make it be closer to the human experience of injustice? No one really knows what justice is and we all know what they are. Not because we have studied a book or have a theory, but because we all experienced injustices in our life. The other image of justice is unusual is the logo of south African of post-apartheid period. There is a tree with people (white and blacks) gathering under its branches. This shows the idea of protection and unity whereas the first, the well-known one, shows justice as punishment and separation. Lecture 2 – Models of justice Justice is used as responses to wrongdoing, not theories of social justice as in response to inequalities or unfair economic wealth distribution. The field of our analysis of this lecture is criminal law, crime prevention. Although the model of justice is relevant to understand responses to injustices and wrongdoing in general, including non-criminal wrongdoing in nature. The purpose is to better understand the peculiar and distinctive features of restorative justice. These distinctive features deal with democracy and freedom, fundamental liberties and peoples empowerment. Peculiar features compared to traditional ways to respond to wrongdoing that usually use coercion, power assertion, punishment and deprivation of liberties. Keep in mind: force and coercion and on the other side, consent and participation. Along its history, humankind has reacted to wrongdoing putting in place basically these reactions: violence, self-made justice through arbitrary actions (taking the law in one’s own hand, self-made law), vengeance, separation, segregation of wrongdoers and punishment that often come with violence, segregation and retaliation. 2 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ On the other hand, to respond to injustices and wrongdoing, more challenging ways: negotiated agreements (could end wars), rehabilitation or corrections, reparations and forgiveness. This scenario comes together in history with the birth of justice systems. They are aimed at avoiding arbitrary and personal reactions based on self-made justice or law. Humankind gives birth to courts and tribunals, punishment administered by public authorities. The birth of judicial proceedings was aimed at letting the reactions to wrongdoing in the hands of public authorities and not in the private hands of victims, who because of suffering, may feel need for violence, to retaliate without proportionality. The types of reaction to injustice did not change much in the inner nature: actually, violence has always been part of regulation and justice systems. The worst atrocities have been committed in the name of justice: we must keep in mind this problematic issue, the relation between violence and law, violence and regulation and justice. The main theories of punishment (concerning the reaction to wrongdoing) are of two kinds: retribution and prevention. Because of the emergence of restorative justice, this classification will not remain the same. Restorative justice modifies this classification and introduces a new taxonomy that we will try to draft. Retribution: it is the most ancient and dominant model of justice. according to retributive justice theory, the response to evil is evil in return. The offender, the law breaker must suffer in return. Suffering is the just deserved. In the name of justice, the offender must be punished, and this is an evil. Justice, in this view, consist in responding to evil with evil and violence with violence. In this, punishment is the pay back, it has no other aim than justice itself. According to this view, justice requires that the wrongdoer suffers as well in return to the suffering he caused. Retribution though is not self-made justice; it wants the reaction to wrongdoing to be proportionate. This is why the retaliation law “eye for an eye and tooth for a tooth” is not the basis of retribution but it’s limitation within the limits of proportionality “an eye for an eye, not an eye for a life”. Retaliation law is part of the Hammurabi law that dates back to the 17th century BC. Retribution is still used today in criminal law but also international relations. It is still the dominant way to conceive justice. Those who arm, deserve to be punished and treated in an evil way. Sadly, because retribution is in fact hugely problematic. Besides US where justice is still quoted in judicial sentences as retribution, democratic states do not support retribution in general anymore. But in theory, because they all use it in practice. Imprisonment is retribution. The problems with retribution are basically the definition itself: evil for evil. This comes for a double evil. So there is an increase in violence, not a reduction. Retribution perverts justice, it turns it into violence and violence into justice. what is evil is cleaned up and becomes justice. the evil we call justice under the retributive framework isn’t different from the evil we call crime. In the framework of retributive justice, crime and justice are mimetic, similar. Justice becomes exactly what it wants to counter, to avoid. As an example, the case of death penalty. Those who kill, are killed. The respect of human life is converted. Retribution is counterproductive model of justice, in fact countries that use have higher levels of violent criminality. Prevention is another theory. Modern and contemporary democracy are not supportive of retribution anymore, although it is still used every day in courts, families, schools. Modern and contemporary democracies stand for prevention. The aim is therefore not to retaliate but to prevent wrongdoing. This is multifaced, there are general and special prevention. General concerns strategies to prevent wrongdoing to in the first place by addressing the general population before any offense is committed. We are those who general prevention wants to prevent from committing crimes and offenses. Special instead concerns strategies to prevent re-offending by addressing those who already offended to avoid 3 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ doing it again. Special prevention comes after an offense is committed. Special prevention only addresses those who are offenders already. General prevention is much more important than special to ensure safety in a state. Effective general prevention can reduce offending in the first place. Special can only reduce only more offenses to be made. Communities will be safer the moral general prevention works. Note how general doesn’t use punishment per se. If general prevention works, no victims are caused and no one will be punished. No victims, no offenses, no one is punished. Think how every time a crime is committed, it means that general prevention has failed, the government should ask themselves what went wrong and should correct their strategies that were ineffective. The prevention of wrongdoing is a complex issue. It is too simplistic to just propose to control such complex thing as crime and delinquency with punishment. The most popular form of general prevention is deterrence and of special prevention is incapacitation. Deterrence is grounded on intimidation, it springs from psychology because it is grounded on the reaction to intimidation and this is a conditioning mechanism, a response forced behaviour. The basic idea is that the threat of a negative consequence (such as punishments) will bring the expect behaviour: people will obey and be respectful. If you rob someone you are punished therefore do not rob. Fear and conditioning mechanism such as coercion are the key concepts of deterrence. To stress this idea: threat, intimidation, fear and coercion. Does it work? We have researches that show that it works only under certain conditions: the threatened consequence must be a likely one (punishment needs to be certain, if not the threat won’t be taken seriously). If a teacher threats us but we can take her not seriously because the punishment isn’t likely we will go on. In order to be taken seriously, justice systems should be efficient. People should have trust in agencies. The threat must not be excessive. If too severe, people will counter act or counter deter. The different levels of gravity and severity of an act will be shaded. If murder and theft are punished the same, an offender may want to kill someone because it doesn’t change anything. Actors are rational actors. Deterrence doesn’t work at all with irrational, impulsive actors such in gender violence. It doesn't work neither with offenders that act out of beliefs or strong convictions or political ideas. Moreover, deterrence uses intimidation, elements that are not democracy friendly. It should always be a sad necessity. Deterrence addresses itself to people who are already willing to break law. Law- binding citizens do not need to be intimidated. People decide to be “good” out of a committed free choice. Our university would not be safe if we hurt one another. Special prevention consists mainly in incarcerating and neutralizing offenders. Death penalty, imprisonment have been the most used forms in the history of criminal justice. Other forms came forward such as chemical castration for sexual offenders (neutralization). The point is to make physically unable to reoffend. It doesn’t motivate to desist reoffending. Neutralization forces into a state of imposed non-action. This is why countries that use zero-tolerant policies face the problems of re-entries: the coming of people who have been neutralized but not helped in choosing not to offend again. One more huge problem with neutralization is the use of direct violence to individuals. While deterrence threat violence but doesn’t use it, incapacitation use violence to people. This is not theoretical; they are actual and are into practice. Again, democracies should recur to neutralization to the only extent to this is strictly necessary. Democracies should not use incapacitation if this is not strictly necessary (if there is an actual risk). They should never be cruel or inhumane such as death penalty. Incapacitation is not compatible with democracies. 4 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ Other ways democracies deal with prevention offenses: they pivot around the concept of voluntary compliance (own choice to follow to rules). In this scenario, rules are neither threats nor order to obey. Rules are not ordering; they do not demand obedience. Rules are democratically established, are consistent of human rights, they are only directions of conduct addressed to citizens to protect their rights. They do not kill; they stand in favour of the protection of life. Life matters. The fact that the rule of conduct reveals its protective purpose is fundamental for the legitimacy of the rule itself. If people perceive the legitimacy of regulation, they follow it. We have massive amount of empirical research showing that when the law is perceived as just and has something protects and not controls people, people do observe the law. The corona virus crisis is an example. People spontaneously complying with regulations will save us. The special prevention scenario that puts the rule of conduct at the hearth of intervention with offenders is rehabilitation. Rehabilitation programmes rely on participation of offenders to foster their compliance. The re-entry into society is not a threat as it is in the case of zero tolerance policies, the re-entry of offenders can be an example for the whole community and can witness good results that people can change. Of course, putting the rule of conduct at heart of prevention strategies, calls for a inner coherence in the whole justice systems. How can we expect offenders learn respect if they are not respected by justice institutions in the first place? This calls for a radical change in criminal justice system worldwide, unless we completely change our sanctions system, justice won’t find inner coherence. Retribution and prevention are presented as opposite scenarios in the most common criminal justice theories. But if we think about it, on the two sets of concepts of force and coercion on one side and consent and participation on the other, we can realize how much retribution, deterrence and incapacitation have a lot in common and how much compliance stands alone on the sunny side of the street where democracy is. Compliance stands alone in this sunny side of the street with the rule of conduct and with the perspectives of social inclusions. Both rule of conduct and rehabilitation expect citizens to spontaneously commit themselves to voluntary comply with the law. A new classification is then separating punitive models of justice from participatory rule centred models of justice requiring consent and compliance. Needless to say, force and coercion are not democratic. Democracies might have to resort to force and coercion, but this must be rare and based on necessity. Force, coercion and punishment, should be exception and not rules. In fact, today, nearly all over the world, expectations are very few. If punishment, justice systems do not change in nature, becoming themselves participatory, if responses to wrongdoing do not foster compliance, the whole system is weakened by its inner incoherence, the legitimacy of justice systems is at stake. Empirical research demonstrated how punitive justice backfires. As quoted by Braithwaite and Sherman, big stick rebound. Disrespects begets disrespects (Zehr). Chapters 2-3-4 of the book. Because of the incoherence, punitive systems lose legitimacy which provokes the fact that people do not lean with voluntary compliance. This lost legitimacy provokes the fact that offenders, people that would like to offend, might tend to offend more and more. Democracy just like human rights must be taken seriously. A lot needs to be done to change our models of justice and restorative justice helps this. Lecture 3 - Responsive Regulation Are these variables (consent and participation, force and coercion) showing two different ways of responding to injustices? It is time for us to approach on another model of justice, centered on consent and participation instead of force and coercion. It is time for us to talk about restorative justice, the idea that provides the title of our module. We’ll begin by studying restorative justice by putting it into the wider picture, concerning regulation as such and precisely new models of regulation. 5 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ The concept of justice in fact is linked to responses to injustices, to wrongdoing and other evil actions. In our field, justice always comes after evil, in response to it whereas regulation aims at avoiding injustices in the first place. So, today’s lecture aims at introducing both restorative justice as participatory and consensual, that is based on consent, response to injustices and on the other hand, to responsive regulation as participatory and consensual legal system. We must refer to the UN definition of it: Basic principles on the Use of Restorative Justice Programmes in Criminal Matters (ECOSOC, Resolution 2002/12). This document is very important, among the readings, together with the handbooks. Restorative process means: “any process in which the victim and the offender and, where appropriate, any other individuals or community members affected by a crime participate together actively in the resolution of matters arising from the crime, generally with the help of a facilitator. Restorative justice may include mediation, conciliation, conferencing and sentencing circles”. Bold words are the most important principles: participatory process is also a voluntary one. The most important ideas expressed in such definition: together, actively, participating. It is not written here but is the most important and basic principles of RJ, this process is also a voluntary one. Another important definition is that of Restorative outcome. Restorative outcome means “an agreement reached (voluntarily) as a result of a restorative process (that is participating voluntarily together, and this concerns victims, offenders and community members). Restorative outcome includes responses and programmes such as reparation, restitution, and community service, aimed at meeting the individual and collective needs and responsibilities of the parties (involved) and achieving the reintegration of (both) the victim and the offender”. We now have discovered through such definitions; the most important characteristics of RJ and we may summarize them in the following: Voluntariness Participation Active involvement Togetherness Dialogue Encounter Deliberative processes This is the core features of RJ, which is based on voluntary encounter and dialogue, that involved all parties actively in a deliberative process aimed at addressing everybody’s responsibilities and aimed at re-integrating those who have suffered from the crimes, both the victim and the offender. It must be clear the difference between RJ and the other forms of justice previously described: especially incapacitation, deterrence and retribution that is those forms of justice centered on force and coercion and enforcement on the use of violence, which is called Juspice. RJ procedures seem quite shocking and for some may even sound outrageous. Yet, RJ is a not an idealistic idyllic form of justice aiming at peace and love reconciliation and forgiveness. Of course, if reconciliation occurs that is very good but is not the purpose, nor is forgiveness. RJ is always a struggle and these encounters are not peaceful. RJ addresses the real needs of people and does so much more compared to legalistic and punitive systems of justice that tend to be distant, abstract and formalistic. RJ provides responses that are fair and just because there have been built and conceived, proposed by those directly involved, by those who have a say in the story and of curse in its resolution. Participating together actively on a voluntary basis: this is far away from imprisonment, lethal 6 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ injections, cells, walls or chemical castration. These are the words of democracy whereas the others (imprisonment, cells and so on) are not consonant with democracy. RJ deals with democracy and in fact RJ is nothing but a democratic way to respond to injustice. It follows democracy to the very extreme, to the fore extent. RJ remains coherent and faithful to democracy even when democracy appears or is extremely hard to follow. It is like RJ does not betray democracy when facing evil as does retribution for instance (violence for violence, an eye for an eye). It is stubbornly in using democracy not to resemble to evil. For RJ, democracy is not a luxury for good times only but is a method to follow in bad times too. Albert Dzur is a political scientist, supporter of RJ from USA. His book Democracy inside, participatory Innovation in Unlikely places. One of those is criminal justice of course. He devotes one chapter, 4 to Criminal justice. As already said, humankind has resorted to violence throughout its history to control violence and has genuinely considered justice as retaliation and as revenge instead of public and democratic virtue. No wonder then if talking about democracy in Criminal Justice sounds like the unlikely place. “A greater sense of public ownership must emerge to check the coercive apparatuses of the state, but also to notice and address the harmful situations and conflicts that get translated into crimes. One way this democratic sensibility is already being encouraged- in part by opening up criminal justice practices to greater citizen awareness and participation- is through restorative justice”. According to Professor Dzur, RJ therefore manages to bring democracy in what otherwise is the unlikely place of violence. He speaks about “a greater sense of public ownership” and this is an indirect reference to a milestone in the history of RJ and its development. Nils Christie (1928-2015) One of the fundamental pieces of academic literature in RJ dates back in 1977 when the worldwide RJ did not exist yet and when the first experimental victim of mediation program has just started in Canada three years before. In 1977 this criminologist published an article in the British Journal of Criminology and the title is extremely interesting “Conflicts and Property”, this was and still is a very provocative text, controversial and contested essay but an inspiring piece of force. Nils’s argument is well summarized in the abstract of the article that the author has drafted: “CONFLICTS are seen as important elements in society. Highly industrialized societies do not have too much Internal conflict, they have too little. We have to organize social systems so that conflicts are both nurtured and made visible and also see it that professionals do not monopolize the handling of them. Victims of crime have in particular lost their rights to participate. A court procedure that restores the participants’ rights to their own conflicts is outlined”. So, conflicts as properties and victims have right to participate together with offenders. The RJ movement sprang in the ‘70 from people dissatisfactions with traditional punitive justice systems that were and are felt as distant, unfamiliar and inaccessible. RJ sprang from victims feeling isolated and perceiving clearly that responses to wrongdoing had little to do with justice and much more with violence in return. RJ also came out of the offender’s react and defiance because of offenders experiencing how criminal justice systems are, that is uncapable of maintaining the promise of being just, fair and respectful (concerning this, we have already talked about how the violence we called justice is similar to the violence we call crime). 7 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ RJ also comes from communities’ dissatisfaction, experiencing the loss in credibility of justice systems that are seen uncapable of holding offenders responsible and accountable and also uncapable of providing reparations of the harms in favor of those who have been harmed. Let’s now focus on the second theme of this lecture, Responsive Regulation We owe this notion and theory to John Braithwaite, Australian anthropologist and a restorative justice practitioner, Professor of Law School of Australian National University. He wrote many important books such as Of Manners Gentle, Responsive Regulation, Not Just Desert, Restorative Justice and Responsive Regulation (we have to study it), To punish and to persuade. These titles are already expressive of the core idea of this great innovator. Responsive Regulation is a flexible dynamic regulatory system, capable of adjusting itself to the conduct or behavior of those the system regulates. As John Braithwaite puts it… “The basic idea of Responsive regulation is that governments should be responsive to the conduct of those they seek to regulate in deciding whether a more or less interventionist response is needed (Ayres and Braithwaite 1992). In particular, law enforces should be responsive to how effectively citizens or corporations are regulating themselves before deicing whether to escalate intervention. Responsive regulation is not only something governments can do; private actors in civil society can also regulate responsively, indeed, even regulate governments responsively (Gunningham and Grabosky 1998)”. Even IR can be governed in a responsive way. What are the core features of responsive regulation? The basic idea Is that there is no need of coercion and force when people voluntarily comply with the law and even more, use of punitive measures is counterproductive. We have already undergone into this topic: coercion, force enforcement do not foster voluntary compliance. So, if the purpose of rules is to regulate people’s behavior, the legal system should support those who are compliant instead of focusing on those who are not, punishing and controlling them. In case citizens have not complied with the rule, the system is still in need for him or her to do so. So, it is of primary importance that the law breakers rewind and convert their uncompliant behavior becoming law-abiding or going back to be complier again. Compliant by the wrongdoers is extremely important. And must be effective of course and such effectiveness is measured by the wrongdoers repairing the harms they have caused. Flexibility Dynamism When to punish, when to persuade Regulation pyramid Compliance & enforcement Escalation Minimum sufficient deterrence Punishment as a last resort The way the legal system fosters ex-post compliance of law breakers is not by punishing the wrongdoers (this will foster only their defensiveness and a pressure to get away with that) but instead by continuously providing what we may depict as exit strategies, security exists outside delinquency and into inside law abiding behaviors and habits, but if the law breakers do change their behavior and 8 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ provide reparations for the harms caused the regulatory system has fulfilled its purpose and does not need to use punishment. By changing behavior and repairing damages caused, the offenders we may say have self-punished themselves but without the use of enforcement and coercion. This is why this flexibility and dynamism put RR (responsive regulation) into a sort of pyramid of interventions: RR theory is built around this idea of pyramid of regulation and its shape has exemplified this dynamism and flexibility, this capacity to adjust to the situations of compliant or non-compliant behaviors. The idea is to always use persuasion and dialogue first because these fosters and support self-regulation and voluntary or even spontaneous compliance. Only if and when compliance, spontaneous or voluntary, or self-regulation do not take place, the system responds by escalating the pyramid to more punitive measures. But since the system is flexible and dynamic and capable of adjusting itself, it can happen also the other way around: the system can respond the law- biding behavior changing by moving from enforcement towards no need of punishment because compliance, self-regulation have come back. The “responsive regulation pyramid” In RR system, justice based on coercive prevention does not disappear completely, it is at the top of the pyramid which is the smaller area of it, so the use of force of deterrence is there but is left in the background, in the smallest portion of the pyramid as last resort measure. Furthermore, each level of the pyramid (Coercive measures, restorative measures, capacity building) has a corresponding type of social actor (from the basis to the top: learning citizen, virtuous citizen, rational actor and incompetent or irrational actor). At the basis stand active citizenship, responsible ones who may question the law democratically, but they abide to it. At the top we have delinquency, those who do or do not offend because they are rational actors and are making a cost-benefit analysis and are deterred or not by the threat of punishment. RR like RJ is not an ideal, idealistic, idyllic legal system and is down to earth, is problem-focused and aims at provoking and support peoples’ compliance with the law and therefore, people desistance from evil conducts. Here is John Braithwaite would read the pyramid: As we move up the pyramid, more and more demanding and punitive interventions in peoples’ lives are involved. The idea of the pyramid is that our presumption should always be to start at the base of the pyramid, then escalate to somewhat punitive approaches o Only reluctantly and o Only when dialogue fails, And then escalate to even more punitive approaches o Only when the more modest form of punishment fails. So, punishment is in the background and is a last resort and when is necessary to use it, and this is done in rare occasions, only reluctantly after persuasive measures failed. RR is used in several places in the world and wants to build voluntary commitment and voluntary desistance from crime so that it can build a more crime-free society. But also, as Braithwaite said, a society where our whole legal systems are more efficient and fairer and therefore, a society that fosters a peaceful condition among its citizens. Regulation is what we do when obligations are not being honored. To juxtapose the orientation to punish with that to fix the problem only scratches the surface of that is at issue with RJ and responsive regulation. Restorative practice shows us the practical paths for moving from healing to problem solving by attending to the emotional dimensions of conflicts over obligation. 9 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/  RJ is conceived as a strategy that often works for building voluntary commitment to meet all our obligations; it is relevant to building voluntary desistance from crime, to building voluntary compliance with environmental obligations, with obligations to be peacemakers, as well as obligations under all manner of laws. RJ has the potential to contribute not only to the creation of a more crime-free society but also a society where our whole legal system works more efficiently and fairly, to a society where we do better at developing the human and social capital of our young and to a more peaceful world. (Restorative Justice & Responsive regulation, J. Braithwaite) Among the places where RR is used more, is Australia. Actually, it contributed to many regulatory changes in Australian legal system. What it is put in the slide is the explanation of RR by the South Australian Environmental Protection Authority Compliance and enforcement. The Australian regulatory approach tends to be proportional, consistent, transparent, targeted and timely. Here we have an example of how RR has been used by mixing compliance and enforcement and fostering the first while making pressure on the second. The dynamism in the type of regulation can embrace these two extremes: very bad (criminal conduct) criminal conduct (champion in compliance). Interestingly, the system adjusts itself to each of them and to all the shaded situations in between these two extremes. This is the idea of responsiveness: multiple and diverse reactions for diverse and multiple situations, sticking to the principle that dialogue and persuasion comes first because support voluntary compliance which is what the society is in need of. Let’s move towards the conclusive part: a new model of justice? Can we foreseen another model of justice that abandons retribution, deterrence, violence, coercion and moves towards the direction of democracy, of a sense of public ownership which entails responsibility taking and democratic capabilities? We are now in the position to sum up the main reflections we have carried out insofar. In typical institutionalized forms of justice (recall the lady with the sword and the scale), this typical form of justice gravitates around force and coercion, deterrence, enforcement, incapacitation, using passive methods of punishment, called negative sanctions such as capital punishment and incarceration. This passive method does not expect any active participation from the offender and actually prevent any participation or collaboration from the offender who is in jail, uncapable of doing anything even good things. Therefore, these systems are punishment-focused or punishment-centered. This has some interesting consequences: if justice is punishment, justice hurts and therefore, as in all democratic systems, the accused person must be entitled a right of defense which is a human right, fundamental and a constitutional right in all democracies and is one of the grounding principles of fair trials, of due process of law. But why should one defend himself or herself from justice if justice is a virtue? If it is punishment, justice actually is not a virtue anymore but rather a copy of the same violence it wants to control. Another consequence is that if it consists in punishment, justice is necessarily offender centered. To do justice, the system needs the offender and not he victim: in punitive systems, the victim is irrelevant. We have rehabilitation service, but we do not have victim support services. If the offender is not identified or convicted, punitive justice has nothing to do even when victims are full of needs that remain completely unaddressed by punitive justice. Think for instance about the case of the suicide bombs who dies in the course of the attack, punitive justice has nothing to do because the offender is dead. How can we punish him? However, there may be a lot to do with survivors. 10 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ Also, punitive justice is unable to look at the future, punitive decisions are stock in the past, where the legal deed deserving punishment is located in time. PJ in unable to draft a future for those involved, offenders, future generations, communities. We will have the chance to better analyze this topic: we will analyze how little PJ does in favor of transitions from dictatorships to democratic regimes or in favor of transitions after civil wars or other collective forms of harms. PJ is not far reaching, it rather simplifies the immense issue of justice, it downgrades the quest for justice into the use of punishment as if punishing someone was able to fix problems but unfortunately is not. In this framework, rules are not seen as direction of good conducts and respect for behavior but rather like orders that demand an expect obedience. This legalistic approach is an enemy of democracy and of HRs and it is history that demonstrates this. Suffice it to think to apartheid laws that were created to control and use enforcement. Innovative features of another form of justice, that does not punish but on the contrary that protects is that of the South African constitutional court tree of justice. These features are: Rule of conduct Deliberative regulation Persuasion Participation Compliance Desistance Positive “active” sanctions Reparation, restitution, corrective actions Forward-looking engagements Victims, offenders, citinzes At the heart of this restorative justice system are rules of conduct that demand voluntary compliance, rules are issued after voluntary and participatory processes that involved those who are regulated whose persuasion and participation in voluntary compliance are fundamental. Here, rules are not meant to be orders to be obeyed which result in punishment for disobedience, they are meant to protect fundamental human needs and rights and other relevant collective goods. Since regulations aim at protecting and not controlling, rules do not need obedience but compliance and desistance from crime, which is always voluntary in nature. In this innovative framework, there is no immediate need to intimidate, incapacitate, threat, deter citizens. Their participations and compliance make coercion unnecessary, promote desistance that is the choice or decision not to offend. In case of wrongdoing, responsive restorative justice system uses positive sanctions, based on voluntary compliance after non-compliance. Voluntary compliance after non-compliance is based on voluntary restitution, reparation and other corrective actions. These responsive active positive sanctions that are not punishment are forward looking, they do not aim at the past but at the future. The past cannot be changed unfortunately otherwise justice would not be useful, we simply would rewind the story. The future can change because is always unwritten, can be different and positive sanctions are aimed at promoting effective changes corrective actions in the future. Finally, responsive and restorative systems need the participation of all those involved, citizens in the first place, victims, offenders and communities where the offenses have occurred. So, people are given back the conflict, they become the owners of conflicts and the solutions to such conflict and people are held responsible for responses to injustices. Two opposite models of justice, we can now ask ourselves which are the right questions in the frame of punitive justice and in the frame of restorative/ responsive justice. 11 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ Punitive justice asks: o What law was broken? o Who broke it? o What punishment is deserved? Restorative / responsive justice asks: o What is the harm? o What are the needs and obligations of all affected by the harm? o How can all the affected parties create a plan to heal the harm as much as possible? o How can be changed in order to avoid repetition and recurrence? We can now see why responsive and restorative models seem to be more effective than punitive justice models. The latter backfires into rebellion, in the form of defiance, counter deterrence, reactance. Restorative responsive justice does not simply because there is nothing in it that can fire back since restorative justice and responsive regulations do not resort to violence but contribute to the eradications of it. They pivot around an inner coherence, demand respect and use it, they aim at persuading and rely on voluntary compliance on motivation commitment and desistance, they demand fairness and use procedures of fairness even with the worst offenders, they look at the well- being of people and communities and foster participatory responses. They demand responsibility taking and support public ownership and personal empowerment of all those involved. An inner coherence that increases regulation legitimacy, this is a very important topic. Restorative/ responsive justice is coherent with its premises: Respect Persuasion Participation Fairness Responsibility-taking Positive sanctions Forward-looking Voluntary engagements Reactions Respect Motivation Commitment Compliance Desistance Mobilization of personal resources Ownership Empowerment Legitimacy is essential for compliance, the studies by Tom Tyler Why People obey the law are very interesting and develop the so-called Procedural Justice theory. Very briefly, people comply with the law voluntarily when they perceive the law to be just, fair, legitimate and not because they fear punishment. So, the system is fair, and they comply with the law because of fairness not because of fear. Obedience is the tricky issues, rules do not deserve obedience, so it is much better to think about compliance instead of obedience. Empirical studies in sociology and criminology show that legitimacy depends on a series of conditions and circumstances, the capability of norms to protect essential goods and HRs, the 12 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ capability of regulatory systems and agencies to treat citizens in a fair and coherent ways, the degree of democracy the system measures which includes the possibility to decide, argue and change the law. Legitimacy entails compliance Legitimacy depends on - Rules being meant to protect, not to control - Procedural fairness (procedural justice theory) - Democracy o Deliberative and participatory processes and procedures o Possibility to debate the law o Openness to law revision Finally, we can summarize what already said. The last slide is about the variables previously mentioned, force and coercion on one hand and consent and voluntariness, participation on the other. Around such variables, two opposite models of justice pivot: one puts punishments at its core, the other puts engagement at its core; one uses force and conceives the law as a device to punish and control, the other expects participation because conceives the law as a regulating system from which all citizens should and would profit. Lecture 4 – conflict resolutions: conflicts and methods We have questioned the origins of conflicts and violence and reflected on the problem of The Other. We have then examined the topic of justice seen as response to injustices focusing on the classic old theories of justice and punishment and then we have move from those old theories towards new ideas such as RJ. We have begun discovering RJ which stands among the way people have conceived to respond to injustices, to conflicts to address the important matters that are arise from conflicts. Conflicts are not necessarily something wrong. RJ stands among the ways people have conceived also to make the frequent, violent and disruptive consequences of conflicts come to an end. In order to better analyze restorative justice and deepen our knowledge about it, we need to put RJ in relations with other ways humankind have conceived to resolve conflicts and disputes. We will provide a general overview of conflict resolution with a broad analysis that cannot oversimplify very complex topics, topics to which scholars of different academic fields internationally, such as sociology, philosophy, law, political science, have dedicated literally tons of books, debates, articles, seminars and conferences. Hints and catches are what this lecture is going to provide. For the general purpose and broad perspective aimed at studying RJ we will not distinguish among the types of conflicts, in respective of the many differences that we must keep in mind, what we will say applies to interpersonal conflicts, international conflicts, individual and collective disputes. Despite these many differences, we will briefly analyze very types of conflict resolution, focusing on the following issues: an analysis of methods and methodologies people used to solve conflicts so we will try to examine the who, how of conflicts resolutions according to a series of variables that are relevant for our discourse on RJ. Then we will focus on the relationship between these methods and the forms of justice and regulations we have analyzed in previous of lectures. The connection between these methods and their outcomes in terms of conflict potentials, stages or degrees of piece or conflictual will also be addressed. Let’s start with point 1: How? Who? (Of conflict resolutions)- Basically, there are three ways of conflict resolutions models or methods. 13 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/  1. Judicial/ Adversarial Litigation 2. Negotiated settlements 3. Restorative Justice The variables in these methods relevant for our discourse are the following: the decision-making- process used to resolve the conflict, the presence or absence of a third party and his or her role in the resolution of the conflict, the role played by authority, coercion, enforcement; the relevance of the law and how it is conceived to put an end to the conflict, the nature of the outcome resulting from the method used, the types of sanctions possibly used inside each of these models or methods of conflict. So, let’s analyze the first method. Judicial or Adversarial Litigation Model: as far as this method is concerned, the decision-making process is a judgement according to the law. This judgement is shaped into an act of adjudication which means the making of an official decision about the case, a decision enforced with authority and if necessary, with coercive interventions. The judgement, the adjudication or act of jurisdiction (literally Juris Diction), is the act of affirming who in the disagreement is right and who is wrong, whose claim is founded and whose is not. The judgement affirms the definitive word about who and what is right or wrong, what is legal or illegal, correct or incorrect, what is founded or not, what is grounded and based on fact or not. Because of this judgement being the decision-making process inside this mechanism, the parties of judicial proceedings and other like conflict resolution methods are and must be adversaries. Each one of them has to stick to its own side, each party wants to bring forth all elements and facts that can be used at one’s own advantage, each party wants to bring “grist to the meal” as British say. The decision-making process will be well conducted only if parties are opposing themselves, for instance the prosecutors stands in favor of the accusation while the defense council lawyer stands on the opposite side, in favor of the accused and in their defense. Judicial litigation requires this adversarial debate because only opposing themselves, the parties help the judge determine and see between the black and white, the grey that might be in between. To get the expected result, each party will have to do the best to prove any allegations they make, and, in some cases, they even have the obligation to prove their allegations, this is the so-called Burden of proof. In judicial adversarial litigation, the third party is fundamental: is the one who holds the power to issue the judgement, to take the decision that says the definitive word and puts an end to the conflict. It might be strictly a public judge or an arbitrator, which is a private judge chosen by the parties themselves who have at least in this case agreed and accepted the procedure. Being private or public, the role the third-party plays does not change, is the one in charge of the decision which is in his or her hands. In the frame of judicial adversarial processes, it is the judge and the arbitrator that each conflicting party has to convince. In this framework indeed it is pointless to convince the adversary because the solution does not come from the opponent but rather from the judge in the form of judgment and consequent decision that might be enforced. Note how the third party is always a professional, typically a legal professional. Remember Niels Christy and his worries about victims being stolen the property of the conflict, of its management and of the solution. Of course, in order to judge well the third party must be impartial and independent. Impartiality here is more precisely neutrality: the judge must be equally distant from those he or she has to judge and of course just like the personification of lady justice, this judge’s attributes are a blindfold, a balance of scale and his sword. This blindfold means neutrality, it means distance from the case and people involved in the case, the etymology of the other two attributes is literally to “cut off, to separate, to distinguish”: the way adversarial models put an end to a conflict is therefore by separation, by separating the guilty form the innocent, the right form the wrong. When 14 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ dealing with criminal justice, namely the classic punitive justice we already analyzed, the provisions connected to the due process of law and fair trial principle also include the defendant privilege of preventing self-incrimination. The defendants have the right to defend themselves and this right includes the right not no self-accuse oneself (remember how we underlined already this aspect, defending oneself from justice is a constitutional right and this is so because justice coincides with punishment). “One has the right to counsel and the right to remain silent”, the reason why one is warned to remain silent is because “anything you can say will be used against you”. Note how judicial adversarial methods combined with punitive justice create a space for lies to become a constitutional right. When facing a judge who has power to punish may become pure harism and in fact, legal systems generally do not require defendant to take the truth or take responsibilities, legal systems ensure instead the right not to tell the truth, not to take responsibility and to defend oneself. This situation may cause victims suffer a lot and of what it is called Secondary victimization, this is a topic we will discuss in the next lecture. Judicial adversarial methods rely on the power to judge, the power to decide and punish. Judicial decisions are enforced and because of the use of force of the law, conflicting parties are compelled to follow the decision even when this is against them. Enforcement is the very reason of the method’s effectiveness. Conflict can be resolved thanks to the decision of the third party without having to rely on the collaboration of those involved in the conflict and in fact we resort in suing someone to bringing them to court when we do not talk anymore, and all dialogues and relationships have ceased. Judicial and adversarial litigations are good conflict resolution methods in all cases in which the conflicting parties and uncapable of talking to each other or unwilling to to do so. The law plays a crucial role in judicial and adversarial modes of conflict resolutions: rules are first the criteria according to the judgment will be issued but because of the authoritative dimension of the whole process, rules are here seen as obligations, orders or commands. Those who do not follow the rules are the law breakers, those who violate the orders, they are not instead seen as those who cause harms to others. As far as the outcome is concerned, we have already pointed out how the process results in a decision or in other words, in a separation from innocent and guilty, legal and illegal. Because of this dual nature of judgement and of adjudication, a judicial proceeding always ends with a win or lose output and always therefore with a winner or a loser. The method is not conceived for finding solutions but for putting an end to a conflict through a decision that may be enforced. Solutions may require an imply looking for more than just black and white result, in this conflict resolution method based on judgment and enforced decision, there is no third ways or road maps to work out. Issues of functions (already analyzed): judicial adversarial litigation models are grounded on authority and enforcement and do not seek in principle consent, consensus and collaboration. Sanctions used in these processes are passive and coercive, that is negative sanctions. Negotiated settlements: they differ greatly from judicial adversarial litigations, negotiations is the domain of compromise, of reciprocal concession of given and take dynamic. Demands here are reciprocally reduced, conflicting interest are sorted out in the attempt to reach the agreement and settle the dispute. Negotiations is the domain of the autonomy of the parties, the process here is fully owned by the parties (something that Christie would like), it is up to the parties only to put an end to the conflict. Negotiated settlements require firstly the parties to accept the resolution mechanism which needs a certain degree of mutual collaboration in the first place. Parties can do negotiations by themselves or can be assisted by professional counsels or advocates therefore, negotiations can be carries out or not with the help of a third party. If the third party is present it is often called a mediator. Authority has no reason to exist because the whole process relies first on the party accepting the resolution method, second on the parties, agreeing with each other, and third on parties finding mutual interest and compatible outcomes. The will of the parties and their capabilities one another are the 15 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ key to this conflict resolution method. Negotiations can be used only if the issues or the right over which the parties are conflicting are disposable ones which means the parties themselves can dispose of those right and interest adjust those issues modifying the boundaries of the interest and even renounce to both rights and interests. Negotiations of course should be carried out within the boundaries of the law but in principle, whatever the parties agree upon, is acceptable within the framework of this method. Rules here play an important role as they deal more with the procedure rather than the contents of the solutions the parties will manage to craft. So, the offence one party can do to the other in these negotiations is unfairness, it is mostly playing dirty with procedural wrongs such as lack of transparency. Of course, power imbalances between parties may put negotiations at risk, may prevent the reaching of fair agreement and cause negotiated settlements to fail. The settlement can result in a win-win solution and this happens when parties have been mutually fair to one another and have managed to optimize their differences making the interests match. The settlement can result in a win- lose solution when power imbalances make one party prevail over the other. The settlement can result in a lose-lose outcome when power imbalances, lack of will, incapacity or unwillingness in providing mutual concessions cause negotiations to stop, to be abandoned or closed without an agreement. This in turn may cause the conflict to escalate, the reaction to escalate into adjudications or arbitration or litigation, may cause an accommodating outcome of letting go, may cause the avoidance of the conflict until further effects are produced. Negotiations play a very important role in international relations and in state to state relations: states are sovereign entities which means they do not recognize a superior authority unless they have decided to do so by adopting a treaty or signing a convention, even a judicial authority or unless they decide to join a supranational or international organization. Conflicts between states are often addressed with negotiations although the role of international courts and arbitrations is more and more increasing. It is important to recognize the difference between negotiations and RJ, they have something in common but are not at all the same thing: negotiations are outcome-oriented and agreement-centered whereas RJ is not. Restorative Justice: it is the justice of the encounter, of dialogue, voluntariness. RJ is not the reparation of harms nor the agreement or solution of the problem. The core of RJ is the active and voluntary participation and engagement in an encounter with the least likely ones. An encounter with an enemy or the famous difficult Other we talked about, a dialogue with the enemy. RJ deals more with recognition and transformation rather than agreements, settlements and solutions. This is why RJ plays a very important role in massive violence cases, in collective violence conflicts, in cases of severe crimes. These situations are where nothing or very little can be resolved but these are the cases where the needs of those involved are immense and huge and need to be acknowledged and addressed beyond the actual possibility or impossibility of fixing things. RJ requires the presence of third party, which is the mediator or facilitator. According to the UN Basic principle mediators must be recruited from all segments of the community and can be both professionals or volunteers. The presence of the third party is fundamental to brake the mirroring effect between those directly involved in the conflict, it is also fundamental to avoid a privatization of the process (the parties own the responsibility to be involved in the resolution of the matters arising from the conflict but the community has a say too because conflict and injustices are more universal than peace and justice- as Christie would say). In the restorative perspective, any conflict is never an issue between you and me, there must be an event that may lessen social bonds that needs to be reinforced. In RJ, mediators and facilitators have no power, they do not judge or decide, resolve the dispute or issue punishment or sentences, they do not say who is guilty or innocent but have a very humble but fundamental role: they listen to the narrative of the parties, they acknowledge what parties leave here and now, they ensure that the encounter and dialogue with the enemy takes place in a safe and comfortable environment, they support the parties 16 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ by embracing their difficulties and acknowledge how painful and liberating the encounter with an enemy can be. Mediators do not act like judges, they are independent and impartial of course but are not all neutral, they take both sides, their impartiality can be better understood with the effective expression we find in literature of RJ of all partiality, they do not take one side but both. Because of them lacking completely of power and authority, the whole restorative process relies on their direct engagement and non the will of the parties. This may sound like a weakness of the whole process, but it is instead its main soft strength. Being them voluntarily but this is not required, is already a clear message of involvement and engagement. Being there voluntarily to face the enemy questions the other, agreeing voluntarily to put in place an act of restitution, reparation or to carry out corrective actions to fix in the future what went wrong in the past is also a clear message of involvement. In restorative process, the law plays a relevant role, the law is actually one of the interlocutors of the parties. During a restorative dialogue, participants actually continuously refer to injustices while striving for justice and rules are the indicators of injustices. As already said, rules in responsive models of justice are not commands or orders but rather more simply and effectively requests of behavior respectful of others. In case of wrongdoing, rules are requested for future complying behavior and therefore this request provides the content of future commitments, of the acts of reparation. In restorative processes the offenders are not the law breakers rather the ones responsible for causing harms that needs recognition and tangible or intangible forms of reparation. The outcome of restorative processes as defined by UN basic principle is what results from the voluntary, active dialogue and encounter with the enemy. What is meaningful of restorative outcomes is not the agreement as such as it instead in negotiated settlements, in this case is the fact that these agreement reached out voluntarily and together meet people needs and responsibilities to the extent possible including the fundamental need to see injustice being acknowledged and the need of both offender and victim to be reintegrated in the community. In case of severe crimes, solutions unlikely are simply impossible but working to make people live better at least in the future is always possible. We know from previous lectures that RJ uses sanctions but not punishment, sanctions fulfill their etymological meaning that is the confirmation of the rule, that is the fact that rules need to be followed, that one has to be compliant with it at least in the future if this has not occurred in the past. So, we know already that sanctions used in restorative processes are positive and active consisting in voluntary engagement, in voluntarily doing something right after wrong which consists in redressing, repairing and correcting. Before moving to the next topic, it is useful to summarize our reflections: judicial and adversarial mechanisms have the shape of a triangle and whose summit is the judge, the arbitrator with the power to issue the decision and enforce it on parties. Negotiations instead is horizontal, and the protagonist are the two or more parties: agreement is reached when the parties find the right balance to address the matters and make their interest match. Power imbalances can affect this mechanism, its result and procedural fairness. As far as RJ, the parties are empowered to work on their own conflicts and do so through mediators which are the crossroads, parts of the dynamics. Mediators and facilitators stand in the middle, the parties work on the conflicts through them. The etymological meaning of mediator is precisely the one who is in the middle. In international legal sources concerning RJ we can read how mediators must involve themselves in the conflict, they are not distant, blindfolded as the judge but are close to the parties, their eyes, minds, hearts are wide open to feel and acknowledge what the parties are expressing here and now in front of them, what are their needs and their requests. Examples of three methods analyzed: in future lecture we will deepen these topics. Let’s now move to point 2 of this lecture: Conflict resolutions methods and models of justice Judicial and adversarial litigations correspond to punitive and coercive models of justice whereas negotiated settlements can play a role inside the responsive regulation pyramid while negotiations can be placed at the basis of the pyramid once step ahead of RJ, along the escalation from the base to 17 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ the summit. The reason why negotiated settlements are less preferable than RJ in a responsive regulatory system is that RJ is much more than negotiations in terms of commitments and engagement in favor of forward looking win-win actions in favor of all those involved, offenders, victims and communities whereas negotiations is solution-focused and show a possible ego-centered self- interested dimension that RJ has not and does not include. RJ is therefore the conflict resolution method that better complements responsive regulations and that fulfils at the maximum extent democratic responses to injustices. Our attitude though it critical, this is why it is wise to combine the various methods and corresponding models of justice. We can draft another version of our responsive regulation pyramid in which we include the three conflict resolution methods we have analyzed today. At the basis of the pyramid stands RJ as the most democratic effective and profound method to address conflicts and to put an end to their disruptive consequences. In the second position stands negotiations in case of disposable and interest. Adjudication, judicial adversarial methods cover the last smaller part of the pyramid, the summit of it: they are a social last resort in the cases that will be hopefully rare where the first two voluntary methods did not take place or fail. We now move to the third and last point (3) of the lecture: Peace. From this point of view, the analysis of our three methods of conflict resolution show further aspects and features that have insofar remained hidden. We can examine litigation, adjudication, adversarial methods, negotiations and RJ asking ourselves which method better promote collaboration between the conflicting parties. Second, if it is capable of addressing complexity to the greater extent. Third, if it is able of crafting creating outcomes. Fourth, if it is capable of addressing people needs. Fifth, if it manages to enable authenticity and truth telling. Sixth, if it manages to support transparency. Seventh, if it fosters creative and imagination skills and other non-technical skills. These three methods draw an arrow moving from a minimum to maximum degree of the above-mentioned features. The last reflection made bring us in front of War and Peace, used to refer to both metaphorical and actual concept of war and peace. Once again, the three methods of conflict resolution help us highlight the strange relationship between the absence of war, of conflict and peace. This is not the mere absence of war of violence, of conflicts. We can think of a relationship between war and peace along a continuum with several intermediate steps and stages. Conflicts, violence and wars may stop even if peace and reconciliation are not reached yet. The three methods seem to correspond to an increasing degree of approximation to peace in the heart of the world. In between war, violence, conflict on one side and peace and reconciliation on the other, all the intermediate stages where violence and conflict have stopped but peace has not be attained yet and therefore, individuals, communities, states leave either a mere separation, a sort of armistice or decent relationships that are not yet peaceful ones. Lecture 5 A-B Restorative Justice and Victims’ rights and Needs – Principles and Programmes We will address RJ directly and will focus on the international legal tools that recommend the use of RJ especially in criminal matters, then we will analyze definitions we already met and new ones provided by the UN (official legal definitions of RJ), we then will see programmes and procedures according to the international standards. But first what we will do is to approach the topic in a more intuitive way. For the study of this lecture, it is good to refer to the international legal sources 18 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ available in bb, especially the recommendations and other sources we will mention during this lecture, the other material is the UNODC Handbook. Additional material is available in bb. RJ Insights Think about how the human feelings of injustice we are feeling in this moment because of the Coronavirus crisis are not instead well addressed or not at all by litigation or negotiations, nor are they addressed by what David Garland called the Culture of Control, a culture we are experiencing, no matter how well developed, the democracy of the state we live in is. Interesting the article by the historian and philosopher Yuval Noah Hariri published few days ago in the Financial Times together with impressive black and white photos of Italian streets and squares completely empty. The title of this article is The World after the coronavirus. Some sentences extracted from sentences that resonate with of many of our reflections so far. “When choosing between alternatives we should ask ourselves not only how to overcome the immediate threat but also what kind of world we will inhabit once the storm passes. Yes, the storm will pass, humankind will survive, most of us will still be alive but we will inhabit a different world. In this time of crisis, we face two particularly important choices: the first is between totalitarian surveillance and citizen empowerment, the second is between nationalist isolation and global solidarity. In order to stop the epidemy, entire populations need to comply with certain guidelines, there are too many ways of achieving this: one of this is for the government to monitor people and to punish those who break the rules. Centralize monitoring and harsh punishments are not the only ways to make people comply with beneficial guidelines”. We perfectly know, by the study in previous lectures that these are not indeed the only ways to make people comply with such beneficial guidelines. “When people are told the scientific facts, when people trust public authorities to tell them these facts, citizens can do the right thing even without a big ** watching over their shoulders. A self-motivated and well-informed population is usually far more powerful and effective than a policed, ignorant population. Consider, for example, washing your hands with soap…Today billions of people daily wash their hands not because they are afraid of the ‘soap police’ bur rather because they understand the facts”. I wash my hands because I’ve heard of viruses and bacteria, but we’ve achieved such a level of compliance and cooperation, people need to trust science, public authorities. It is important in this intuitive introduction to RJ to focus on our own personal and collective experience in this unprecedented and unexpected moment, on our personal stories here and now that may differ from one another on our needs and expectations today, here and now. It is important for an insightful introduction into RJ because experience, stories, needs, expectations here and now are what RJ means. That is why we have to “restoratively” live this coronavirus experience. Howard Zehr: 10 ways to live restoratively One of the most important scholars and supporter of RJ. He wrote a sort of decalogue and the invitation was to live this crisis restoratively. Reviewing these ten simple but also complex directions has been useful in the very moment here and now. 19 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/  1. Take relationships seriously, envisioning yourself in an interconnected web of people, institutions and the environment. 2. Try to be aware of the impact – potential as well as actual – of your actions on others and the environment. 3. When your actions negatively impact others, take responsibility by acknowledging and seeking to repair the harm – even when you could probably get away with avoiding or denying it. 4. Treat everyone respectfully, even those you don’t expect to encounter again, even those you feel don’t deserve it, even those who have harmed or offended you or others. 5. Involve those affected by a decision, as much as possible, in the decision-making process. 6. View the conflicts and harms in your life as opportunities. 7. Listen, deeply and compassionately, to others, seeking to understand even if you don’t agree with them. (Think about who you want to be in the latter situation rather than just being right.) 8. Engage in dialogue with others, even when what is being said is difficult, remaining open to learning from them and the encounter. 9. Be cautious about imposing your “truths” and views on other people and situations. 10. Sensitively confront everyday injustices including sexism, racism and classism. Insights Experience Real people Real needs Real encounters Real quest for justice This is so to say that RJ is an experience, not a theory, it has many theoretical and political implications and important relevant creative aspects but the core of RJ, the most significant aspect is that it is an experience directly involving people on a personal and collective level. RJ deals with people, real ones who have real needs that spring form their real stories and many times from real injustices that had happened to them. RJ does so through real direct encounters that involve those who have been harmed. Once a victim of a murder case in Italy told me (the professor) that what she had appreciated the most about the restorative encounters she had with her father assassin was that the man was there in person with his real face she could look at, with a real body she could touch. This was more and more important for the victim because as she explained, severe injustice and traumas caused people to live with monsters and ghosts who replace real people, monsters that inhabit one’s story and this personal story is intern, twisted in an unexpected and unwanted directions when a crime, an act of violence, an injustice occurs. This change of directions unwanted in one’ life may even bring people to experience and feel that their stories are not real. Imagine someone living a personal story that does not seem his or her story anymore, inhabited by ghosts and monsters. For this victim, to have a person who is really there physically to talk, to look, to question, to listens was a way to get bac to reality. This does not seem to happen and actually does not happen in a court room that have little or nothing to do with people’s real lives. RJ has its feet on the ground although it tries to help people raise their looks and stand up for their needs and one of these fundamental needs is the quest for justice after injustices. Bear in mind that RJ first is an experience that we can study in theory but that remains such, it remains an encounter with reality. 20 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ Few references to s series of documentaries, real stories of real restorative encounters (see on bb)à watch trailers, this may be our first direct encounter with RJ and its protagonists: Je ne te voyais pas (F.Kholer, 2019), Lugano Film Festival of HRs. It is interesting how the director brings us the viewers at the side of victims and offenders, men and women, of different age who are looking for justice from very different perspectives, they encountered with themselves, they are in conflict with themselves by the issues posted by the crime. Circle up is another documentary that tells about the first victim offended dialogue that is recalled through the eyes of a group of mothers of murdered children who are able through RJ as they tell us, to transform their grief and lost into healing for themselves and for other young people affected by trauma. A conversation is a film concerning a real case of rape and murder. A better man (2017, Canada) that presents the real story of Atia Kahn the core editor of the documentary, 20 after the abuses she was subjected to, she meets her abusive ex partners and they both walked along a difficult journey towards understanding, responsibility taking, justice and healing. With this documentary, she contributed to her personal struggle against domestic violence to help other offenders find their ways out. The Meeting is a docufilm based on real facts and real persons, based on a real meeting that took place with a woman and a man who years before abused her leaving her injured. This has been called a very unorthodox cinematic experience. This talks about a progressive form of justice, that is indeed is RJ. She experienced RJ by meeting her direct offender twice, once during the proper restorative justice dialogue they both had and a second time during the screenings. During an interview for Independent “I was there because I believed in RJ…a day I will never forget and the memory of which has replaced bad memories”. She is referring to the day she met the offender and calls it an amazing day, an unforgettable day that has replaced a bad memory. “In that room, you see someone that originally had the feeling of being disempowered, angry, sad, turned into someone who feels empowered and was able to let go hanger”. In this way, you see humanity restored in both sides, before that he was the monster who comes out the darkness and then I got to see the human side of him thus changing the memory card, it enabled me to retain control and had a different reaction to the original memory. “When I went home, I was trying to process it all and I felt this way of sadness coming from me realizing he had damaged his life as well as mine”. We will realize how the people directly touched by aggressive relevant experiences are able to tell everything without explaining actually anything. This is why they often use metaphors to communicate what is essential, when the story might be so hard to tell piece by piece, when the story may be so impossible to comprehend because when there is violence and injustice, nothing is comprehensible. Finally, I will refer to three fictional movies, a very limited selection recommended: Le fils: Belgian movie by two directors The Insult: French-Lebanon movie The Straight story: US movie directed by Linchà The story it narrates is a true story as it is made explicit in the subtitle. It is a story of brothers (remembers our first lecture, how brotherhood may be the expression of both love and hate). The protagonist is a WWII veteran, old, disabled and poor. He happens to know his brother has suffered a stroke and might die. The two haven’t talked to each other for years because they are in conflict. Furthermore, they leave far from each other but when Alvin (the protagonist) received the info about the fact his brother may die, he feels compelled to visit him. We do not the reason why he felt this way, 21 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/  we do not need to know it actually, we do not know anything about the conflict that has separated the two brothers for years and years. Again, we do not need to know these reasons. We do not who is wrong or right about the conflict, who has harmed who. All we come to know along the movie, is that mister Alvin Straight is too poor and impeded to get a vehicle to see his brother or to purchase public transpiration’s tickets. But the need to go to his brother pushes Alvin to use the only mean he has, a tractor used to cut loan, this strange vehicle has a maximum speed of 5 miles per hour and so, Alvin leaves. He moves into his personal exodus and slowly dangerous way drives all the many hundred miles that separate the village in Ohia where he lives to Wisconsin where the brother lives. The journey is the movie and it is a beautiful real true story of what restoration of justice is about. International Legal Sources on RJ Interestingly, the main IOs such as the UN, the Council of Europe and the supranational European Union dedicated legal instruments to RJ in quite recent years. This is an interesting sign demonstrating how RJ is developing relatively quickly over the world. These tools view RJ as an instrument to be used especially in criminal matters. We will study how this is only partially true since RJ can be used in several other fields and the special part of our module will be dedicated to fields which are not necessarily criminal matters. Criminal justice and criminal matters though are like symbols and among the most complex fields of application of RJ, if RJ can be used in criminal matters then even more can be used in school and family matters and so forth. These legal texts mentioned (UN, Basic Principles on the Use of RJ Programmes in Criminal Matters – Council of Europe, Recommendation CM/ Rec concerning RJ in criminal matters – EU, Directive 2012/29/ EU establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision) are more relevant for the purposes of our course, are soft laws non-binding tools that have ap political vocation more than a strictly legal one. The only existing supranational binding legal text that refers expressly to RJ is the EU Victims Directive that we will study in the next lecture. EU member states have an obligations to transpose the directive provisions and this directive concerns victims in the EU and therefore the directive does not regulate RJ per se since RJ is mentioned among the procedural rights of victims of crimes in the EU and the use of RJ is encouraged under certain conditions we will study. The Directive does not provide though for an obligation for MS to introduce or use RJ in criminal justice although the directive encourages MS to promote RJ. Because of its worldwide dimension, you will focus on the UN Handbook aimed at implementing the UN basic principles. Yet, it is of great interest to study the most recent documents issued by the council of Europe, it is the new recommendations on RJ. The text is inspiring, the preamble and the commentary are full of up to date references to the current debate around RJ and the present development of it. The UN are in the process of reviewing the 20002 Basic Principles, a step in this direction would have been the 14th UN Congress on Criminal Justice that should have taken in Tokyo this year but postponed because of the coronavirus (available on bb a document of the UN summarizing the comments received by the commission from scholars and protectioners all over the world about the use and application of the Basic Principles on the use of RJ programmes in Criminal Law). Let us now review the definitions on RJ provided by these legal tools, such as the definition by UN of both restorative process and outcomes. Restorative process means “any process in which the victim and the offender and, where appropriate, any other individuals or community members affected by a crime participate together 22 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ actively in the resolution of matters arising from the crime, generally with the help of a facilitator. RJ may include mediation, conciliation, conferencing and sentencing circles”. (UN Basic Principles on the Use of RJ Programmes in Criminal Matters ECOSOC, resolution 2002/12) Restorative outcome means “an agreement reached as a result of a restorative process. Restorative outcome includes responses and programmes such as reparation, restitution, and community service, aimed at meeting the individual and collective needs and responsibilities of the parties and achieving the reintegration of the victim and the offender”. We already underlined the key concepts and words resulting from these definitions. Interestingly, the same key concepts and key words are found also in the Council of Europe 2018 Recommendation concerning restorative justice in criminal matters. PARA II. 3 Definitions and general principles “Restorative justice” refers to any process which enables those harmed by crime, and those responsible for that harm, if they freely consent, to participate actively in the resolution of matters arising from the offence, through the help of a trained and impartial third party (hereinafter the “facilitator”). Once again, what is stressed in this definition is participation, voluntariness, active engagement, working on the matters arising from the crime, the relevance of the facilitator as an impartial third party who stays in the middle. The new recommendation decides though not to victims and offenders as the UN Basic Principles but to fewer stigmatizing terms such as “those harmed by crime” and “those responsible for that harm”. This recommendation points out how the encounter is a dialogue that may evolve of course with their consent all those affected by the crime such as support people on the side of the victim or of the offender, respective families or members of relevant groups or communities, representatives of public police and even to some extent the same judicial authorities or the police. PARA II.4 Definitions and general principles RJ often takes the form of a dialogue (whether direct or indirect) between the victim and the offender, and can also involve, where appropriate, other persons directly or indirectly affected by a crime. This may include supporters of victims and offenders, relevant professionals and members or representatives of affected communities. In other paragraphs, the recommendation affirms that agreement do not have to include tangible outcomes only such as restitution or financial compensation but may include, no less important than the former, intangible outcomes such as apologies, or meaningful public or private gestures or our non-tangible acts of reparation. We shall see for see for instance how memorial side can be as forms of reparation in cases of massive violence. The parties are even free to agree that the mere dialogue sufficiently satisfied their needs and interest so the COE stresses how it is not the outcome that matters but the process, the encounter, the dialogue. Let us now have a look at the EU 2012 Victims Directive, which is a legal binding source Art. 2(1) “RJ means any process whereby the victim and the offender are enabled, if they freely consent, to participate actively in the resolution of matters arising from the criminal offence through the help of an impartial third party. 23 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ RJ within the victims Directive is mentioned although it does not put an obligation for MS. Council of Europe Recommendation Rec (2006) 2 on the European Prison Rules Rule 103.7 “Prisoners who consent to do so may be involved in a programme of RJ and in making reparation for their offences”. This mentions but not defines RJ. This rule opens up the possibility for prisoners to be involved in restorative justice programmes and here the prisoners’ consent is stressed. The commentary to the prison rules impact states “this rule acknowledges the increasing recognition that the technics of RJ may be used with sentenced prisoners who wish directly or indirectly to may preparations for their offences. It is important that such participation is voluntary and does not amount to an indirect form of further punishment”. Remember this statement, we will go back to it again. Before the adoption of the 2018 recommendation, the Latin of Latin had adopted in 1999 the very first international soft law instrument on RJ: Recommendation No. (99) 19 concerning mediation in penal matters (1999) PARA I. Definition “These guidelines apply to any process whereby the victim and the offender are enabled, if they freely consent, to participate actively in the resolution of matters arising from the crime through the help of an impartial third party (mediator)”. Mediation used to be and to some extent it still is the most developed restorative program in continental Latin. As we can see, the key concepts haven’t changed much from this resolution to the 2018’s. Freedom of consent, participation, encounter and so forth. What has really changed is the shift of mediation to restorative justice. We have just seen that the new COE recommendation of 2018 concerns RJ and not only mediation. Mediation as in face to face meeting between the victim and offender only, to this broader idea of RJ attracting other subjects and being able to embrace even entire communities. Some think that this shift is to be debated, some think mediation is still a core concept. The etymology is indeed very meaningful: mediation comes from Latin where mediare means to be in the middle, medius= middle. Others think RJ is better because includes the word justice and refers to restoration meaning that RJ is a justice that restores, the justice that heals and takes into account the future of those involved. Also, the terms used to refer to the third party are contested. Some prefer to call them ‘mediators’ even when they do not intervene in programs that are strictly called mediations. Others prefer the term ‘facilitator’ which is often times mentioned in the legal texts we are discussing. The reason why some prefer mediators is the same reason for which the etymology of the word mediation is important: mediators are those who stay in the middle. Why are we talking about terminology? The origin of the term RJ is unclear and is not easy to say who has been the first to use it or invent it. Also, there are problems with the precise boundaries of the term, restore or repair and therefor RJ or reparative justice? There are very interesting problems with translations of the concept RJ in other languages. In French for instance the legal references to both justice restorative and justice réparatrice and in Spanish the same, justicia reparativa or reparadora. No exact term has been drafted for German with legal texts either Tater-Opfer-Ausgleich or Widergutmachung, going back to do good again. Wiedergutmachung is for ins