The traditional criminal justice system emphasizes individual rights, exemplified by the expanding gamut of rights accorded the accused under the provisions of "due process". In the contractarian view of society--in which it is viewed as an aggregate of self-interested individuals--personal freedom for the self-interested individual requires the State to protect and guarantee these rights. As the model for modern society becomes increasingly contractual and individualistic in nature, with a necessarily correlative decrease in the mutualist nature of society, the need for State intervention for the protection of one's rights increases. This illustrates the limits of the rights-based approach. As Cordella puts it:

Even when individual rights are guaranteed to all by statute and state force, the fear of losing those rights, although suppressed, remains because we perceive the self-interest of others as a constant threat to our individual rights. In order to protect our individual rights, therefore, we surrender most of our conflicts to officials of state who in turn respond punitively to the perceived violations (Cordella, 1991 at 33).

So that even when rights are accorded the individual, two forces work to diminish those rights: the rights accorded other individuals, and the increased power of the State to intervene on behalf of the individual. The punitive response is rooted in fear as individuals become increasingly aware of other self-interested individuals asserting their own rights.

The antithesis of the contractarian view of society is the mutualist model of society. The mutualist model is predicated on the belief that conflict is a "weakening of communion among its members" requiring restoration, which necessarily involves an attempt by the community to reintegrate the parties to the conflict (Cordella, 1991 at 31). Instead of freedom of the individual being an end unto itself, the mutualist model views it as a means to achieving a meaningful and fulfilling existence within the context of community.

Restorative justice, in many ways, affirms the mutualist model of society. Conflict is a breakdown in the relationship between members of the community. With its emphasis on responsibilities (Van Ness, 1997 at 22), restorative justice is less likely to frame legal issues in terms of individual rights. Unlike the traditional system, restorative justice does not assume the necessity of an adversarial context in which assertion and affirmation of individual rights through formal processes are the only means of pursuing justice. Hence, it addresses these issues within a different framework--that of restoration and collective problem-solving through informal processes. Since the State does not have an exclusive or dominant role in protecting rights, the parties themselves play crucial roles in assuming their responsibilities. The State's responsibility to the parties is to create an environment in which the parties can resolve the conflict collectively.

The ways in which we have come to view socio-legal issues have been shaped by the dominance of the State in adjudicating disputes. To fairly evaluate the potential of restorative justice to satisfy the concerns about these issues we must be willing to reconsider our many assumptions about the necessity of adversarial, formal processes to achieving justice based on the rights-oriented approach. We must be willing to view these issues from a restorative perspective which emphasizes responsibilities and collective conflict-resolution through informal processes.


This document prepared by Christopher Bright. Copyright 1997 by Prison Fellowship International.