Restorative Justice and the Law: Socio-ethical and Juridical Foundations for a Systemic Approach (From Restorative Justice and the Law, P 191-218, 2002, Lode Walgrave, ed. -- See NCJ-199537)

• NCJ Number: 199547
• Author(s): Lode Walgrave
• Date Published: 2002
• Length: 28 pages
• Sale Source: Willan Publishing
• Publication Format: Book (Softbound)
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America

Annotation

This chapter discusses how to find an appropriate relationship between restorative justice and its support for informal deliberative processes and the law in a democratic state, with its need for formalization and external control.

Abstract

The search for this relationship requires several steps. First, the essentials of the restorative option that emphasizes the repairing of the harm caused by crimes must be clarified. Second, the theory and practice of restorative justice must explain and show why the relationship between restorative justice and the law cannot just replicate the way traditional criminal justice is legalized. Third, theory and practice in restorative justice must make it possible to conceive a system that will guarantee to all parties democratic rights and freedoms, while leaving maximum space for informal deliberation in constructively settling the aftermath of an offense. The author advises that in realizing its full potential, restorative justice can not be reduced to voluntary deliberative settlements while leaving the hard core reaction to crime to the traditional justice system. There must be coercive impositions of restorative sanctions, an approach that this chapter calls a "maximalist" version of restorative justice. Restorative justice must have the goal of replacing over the long term the current punitive a priorism in the reaction to crime. The likelihood that this will be achieved depends on a number of social, cultural, and political developments, as well as on how restorative justice itself evolves in its methodological, theoretical, socio-ethical, legal, and institutional aspects. Although many concepts -- such as due process, the right of a defense, guilt and responsibility, proportionality, and other traditional principles of jurisprudence -- must remain prominent, they should be applied in a restorative justice context. A criminal justice system based in restorative justice principles would be reformed to be more satisfactory for crime victims, more assuring for social life, and more reintegrative for the offenders, and thus more restorative for all. 13 notes