Legal Issues of Restorative Justice (From Restorative Juvenile Justice: Repairing the Harm of Youth Crime, P 263-284, 1999, Gordon Bazemore and Lode Walgrave, eds. -- See NCJ-181924)

• NCJ Number: 181934
• Author(s): Daniel W. Van Ness
• Date Published: 1999
• Length: 22 pages
• Sale Source: Criminal Justice Press/Willow Tree Press
• Publication Format: Book (Softbound)
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America

Annotation

This analysis of legal issues commonly raised in relation to restorative justice focuses on three principles proposed by Schweigert in 1997 and emphasizes that law is an expression of values and norms and not simply a set of rules and procedures.

Abstract

Schweigert’s first principle is that it is possible to bring together communal traditions and universal norms in a way that is mutually reinforcing. This principle makes clear that it is not necessary to focus on the relative merits of informal and formal law; instead, discussions can focus on ways to honor, respect, and reinforce both. Schweigert’s second principle is that restorative justice processes carve out safe, neutral spaces for all parties to meet and design solutions. This principle underscores the gatekeeper function that exists in law and relates to the problem of discretion and the principle of legality. Schweigert’s third principle is that restorative processes contribute to community moral education. This principle helps provide a framework in which to discuss the issue of proportionality, a common concern about restorative processes. Guidance regarding proportionality can come either from tort law or a future scale developed by desert theorists. Figure, notes, and 82 references