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Restorative Justice Theory

Restorative Justice Theory

What is the theory behind restorative justice?

 

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Brunilda Pali, an academic at Leuven, says that restorative justice is a normative discourse on how justice should be done in a democratic state. What she’s saying is that democracies are underpinned by a number of values around things like social justice, human rights, and quality of opportunity. But what we might see as traditional criminal justice processes doesn’t necessarily reflect those values.

 

They see our justice process as focusing on retribution at the expense of the needs and interests of those most closely affected by crime. You might see restorative justice as being diametrically opposed to retributive justice in a number of ways.

 

While our criminal justice process asks things like, what law was broken? Who broke it? And, what punishment do they deserve? Restorative justice asks, who has been harmed, what are their needs, what obligations arise as a result of the harm being done? And what is the appropriate process to involve stakeholders in an effort to address the causes of what happened and to put things right?

 

The principals that underpin these processes can be split into those that relate to the process itself and those that relate to the outcomes. In terms of the process, you basically want to identify parties where the stake in the offense and empower them so they can be included in deliberation and decision making processes. That’s stakeholder inclusion. That’s one of the key principles. This has to be voluntary, so voluntariness is another key principle.

 

It’s also about an approach to crime that’s flexible enough to be responsive to the needs and interests of the stakeholders and increase the likelihood of their needs and interests being satisfied. It also says, essentially, that our emphasis should be on participation, communication, relationships, and negotiate agreement. These principles aren’t exhaustive. This is just a lot of people are undecided about which ones should go on the list. I kind of just put together, broadly, my list.

 

In terms of the principles that relate to outcomes, basically what you’re trying to achieve is repairing the harm done by crime, reconciling the relationships broken or affected by crime, and reintegrating those affected by crime back into society. Really it’s about repairing the harm that was done.

 

If you imagine that you have people start out on an equal playing field and then someone harms someone else, then that person comes down here. In the traditional justice process, the idea would be to impose a proportionate amount of harm on this person to bring them down here, thereby levelling things out. What restorative justice says is that it’s this person’s responsibility, and society’s more broadly, to help bring that person back up here. The idea is kind of meant to be a more positive approach to crime and conflict.

About the mediator

Ian Marder Profile Pic

Ian is a criminologist and Ph.D. student studying restorative justice at the University of Leeds’ School of Law, where he also lectures on the subject. He was born in Canada, but has spent most of his life in Northern England. He has conducted research for a number of organisations, including Restorative Solutions, the Restorative Justice Council, Search for Common Ground and the United Nations Office of Disarmament Affairs. He is trained as a ... View Mediator