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Conceptual Issues and Justifications

These articles consider a variety of theoretical or conceptual (as opposed to practical) issues posed by restorative justice practice.

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A contradiction and an alliance among restorative justice theories, feminism and Confucianism: From Taiwan's experience
from the paper by Hsiao-Sen Huang: This paper aims to discuss a theoretical contradiction and to explore a possible alliance among restorative justice theories, feminism and Confucianism, with a focus on restorative justice practice in family violence cases. In addition to drawing on literature, this paper will undertake qualitative analyses on the interviews with six facilitators in Taiwan Restorative Justice Pilot.
A needle for the restorative justice compass
from the entry by Howard Zehr on Restorative Justice Blog: Injustice occurs when people are turned into objects through relationships. Justice occurs when people are honored through relationships. So for Vaandering, what is needed in restorative justice is a concerned effort to remind us all of the following: Justice is a call to recognize that all humans are worthy and to be honored. Injustice occurs when people are objectified. The term restorative justice becomes meaningful when it refers to restoring people to being honored as human.
A relational vision of justice
from Jennifer Llewellyn's article for Restorative Justice Week 2011: As a relational theory of justice, RJ is rooted in a relational understanding of human beings and the world. It starts from the fundamental assumption that human beings are inherently relational. This is more than merely a description about the way in which we live or a claim about the benefits that relationships bring. Human beings do indeed live in relationships with one another, but, a relational theory claims that we could not do otherwise. We are, on this account, formed in and through relationship with others. Relationship is central to who we are and who we become. This is not to say that we are just the sum of our relationships or wholly determined by them. We still make choices for ourselves and are responsible for those choices. But a relational approach reveals the extent to which our choices are made possible by and realized with the help of others. Our choices also affect others.
About restorative justice and the need for more culture change
from the entry by deepblacklondon on deep:black blog: As a restorative justice facilitator I’m not a legal expert (I actually don’t even understand all that much about the legal system in this country because I’ve not lived here for very many years). As a restorative justice facilitator I’m not even an expert in the conflict I’m dealing with – one of the key principles of restorative justice is one that we share wholeheartedly at deep:black: the experts in the conflict are always the people that are in it.
Abu-Nimer, Mohammed. Reconciliation, Justice, and Coexistence: Theory & Practice
While researchers and practitioners in general have focused more on the prenegotiation and negotiation phases of response to conflict, less focus has been placed on the postsettlement reconstruction phase. In recent years however, the focus of research and practice has begun to expand to include postconflict conditions and processes. An essential element in this postsettlement phase concerns the parties’ ability to reconcile and reconstruct a new relationship. Much has been written on justice and forgiveness, particularly from theological and philosophical perspectives, yet comparatively little research has been done on ideas and processes of justice, reconciliation, and coexistence. This book, therefore, consists of a number of essays intended to advance the state of knowledge on concepts and practices related to reconciliation, justice, and coexistence. The book is organized into two main parts. The essays in Part I focus on the theoretical framework for reconciliation in peacebuilding. The essays in Part II focus on practices related to reconciliation, justice, and coexistence in areas of conflict; these essays highlight case studies from around the world (e.g., South Africa, Ghana, Northern Ireland, and Cambodia). Contributors represent much of the pioneering work being done by scholars and practitioners in the field of peacebuilding.
Amstutz, Mark R.. The quest for peace and justice: A Biblical code of international relations
Mark Amstutz begins his consideration of the quest for peace and justice by referring to Michael Walzer's account of basic justice or 'moral minimalism.' Moral minimalism is not to be construed as shallow and virtually vacuous justice. Rather, it is to be construed as broad in scope, general in claims, and universal in applicability. Minimal morality is rooted in foundational claims of truth, common humanity, and basic justice, not in the particularities of common education, similar cultural values, or shared political ideologies. In contrast, maximal public justice is full-bodied and embedded in specific cultures and legal systems. Though it is rudimentary, minimal morality provides a framework for public justice, and an ethical basis for pursuit of global order and international peace. With all of this in mind, Amstutz explores elements of a 'minimal' Biblical account of international political ethics, the aim being to illuminate core political principles rooted in a Biblical tradition.
An apology is not good enough and neither is a conviction
from the independent review of the 2011 Vancouver Stanley Cup Playoffs riot: Accountability is most powerful when an individual fully understands the effects of their actions on other people and not just the impersonal state. Some did as soon as they woke up the next day, bewildered and remorseful. Bold acts that drew cheers on the 15th were inexplicable and humiliating on the 16th. Even many of those who felt no remorse felt the lash of global village justice in all its forms. Remorse, no matter how sincere, is not enough. We had a deal: we respected them and they respected us. They broke that deal on June 15 (albeit impulsively in many cases) and a price must be paid. There are strong and widespread views that the criminal justice system is not up to the task because it is too slow and too weak. But another, more apt reason is that it is too impersonal. A guilty plea and imposition of a fine teaches nothing of the harm that’s been done.
Archibald, Bruce P. Coordinating Canada's Restorative and Inclusionary Models of Criminal Justice: The Legal Profession and the Exercise of Discretion under a Reflexive Rule of Law
Canadian criminal justice has moved to a hybrid system involving a formal but inclusionary criminal trial as the predominant model with an informal restorative justice model as an increasingly significant alternative. This system invokes traditional punitive, rehabilitative and corrective elements yet deploys them in new institutionalized contexts. The formal inclusionary model integrates victims' concerns at all levels from policing and prosecution through the trial to sentencing and parole, while maintaining due process protections for the accused. The informal restorative model responds to criminal harms by bringing together victims, offenders, their respective families and community representatives in a deliberative process which can result in accountability, reparation and community based solutions to go to the root of crime causations... These developments in Canadian criminal justice reflect the postmodern conditions of our regulatory or supervisory state. Such participatory processes, rejecting a purely hierarchical approach, are characteristic of what has been termed a reflexive rule of law in deliberative constitutional democracies, and are parallel to legal evolution in other domains. If properly co-ordinated, these models have great potential for enhancing criminal justice in current Canadian society which exhibits increasing structural complexity, social diversity and public alienation from legal institutions. However, members of the legal profession, including bench, bar and chair must accept their responsibilities and new obligations in order to endure the new hybrid system functions effectively. (excerpt)
Batley, Mike. What is the Appropriate Role of Spirituality in Restorative Justice?
Many people have found restorative justice to be rooted in spiritual principles and experiences, writes Michael Batley, whether they consider themselves as adherents of a specific faith or as unconnected to a specific faith. Batley explores in this chapter what all of this means and how it affects the practice of restorative justice. Toward this end, he examines the terms 'spiritual' and 'spirituality' and discusses the links these concepts may have with restorative justice concepts. He then builds on these ideas to reflect on their implications for restorative justice practice. In doing so, he highlights possible problems for restorative justice practice, and he outlines some models for practice that are intended to help in avoiding those problems.
Bennett, Trevor and Brookman, Fiona and Pierpoint, Harriet and Maguire, Mike. Handbook on Crime
The Handbook on Crime provides analysis and explanation of the nature, extent, patterns and causes of over 40 different forms of crime, in each case drawing attention to key contemporary debates and social and criminal justice responses. It also challenges many popular and official conceptions of crime. (Excerpt)
Bianchi, H. Justice as Sanctuary: Toward a New System of Crime Control.
Bianchi suggests a non-punitive system of controlling criminality based on principles of conflict resolution. Current criminal law is alienating or anomic; eunomic system emphasizes the active responsibility of involved parties, and redefines conflict away from the criminal and society to the accused and victim or plaintiff. When agreement is reached, public prosecution should be withdrawn. The present system's results in repression; an assensus model permits conflict resolution. Sanctuaries are proposed to replace jails, to facilitate dispute settlement and to protect the public in very violent crimes. The practical feasibility of a eunomic crime control system is discussed.
Bucqueroux, Bonnie. Restorative Community Justice: A Comprehensive Approach to Reducing Crime and Violence in Our Culture
While the United States has made dramatic strides in reducing the crime rate in recent years, the gains have come at the price of the world's highest rate of incarceration and crime rates are still too high and communities continue to suffer. This paper on Building a Restorative Community Justice model offers a vision of an effective alternative to the fragmented criminal and juvenile justice systems of today, as well as a three-phase plan to make this vision a reality: 1) Develop a Restorative Community Justice model - Synthesize the essence of the major criminal and juvenile justice reforms into a comprehensive, system-wide Restorative Community Justice model. 2) Promote learning organizations - Transform police, prosecutors, courts and corrections into Learning organizations that can apply systems thinking to changing times and new challenges. 3) Strengthen Communities - Create capacity within communities so that they become full partners in the process of merging formal and informal social control into a unified, community-based approach. (excerpt)
Burke-White, William W. Regionalization of International Criminal Law Enforcement: A Preliminary Exploration
According to William Burke-White, the enforcement of international criminal law has largely occurred at the supranational level since the 1945 Nuremberg International Military Tribunal. More recently, this enforcement has migrated to the domestic level (compare, e.g., the Special Panels in East Timor or the Special Court for Sierra Leone). All of this has led to the emergence of a system of international criminal law enforcement operating at a variety of levels. Burke-White asserts that a core level of this system -the regional level- remains unexplored and underdeveloped. Hence, in this paper he seeks to fill this void by providing a preliminary consideration of fundamental questions as to whether such regionalization would be useful and achievable.
Burnside, Jonathan. Money Can't Buy Me Love?
Jonathan Burnside begins this article from a foundational perspective that justice must allow for and foster growth, healing, and the possibility of restored relationships. This, he says, is because justice is transformative and not a static state. He points to Marion Correctional Institution (MCI) near Columbus, Ohio, as an example of this. MCI, under the visionary leadership of Warden Christine Money, has created unique relational programs for prisoners and their families, as well as opportunities for outside volunteers who support its work, especially through faith-based initiatives. At MCI , concludes Burnside, relationships are key, and there is punishment with justice.
Circling self-interest and democracy
reviewed by Dan Van Ness Lode Walgrave begins his exceptional 2008 book Restorative Justice, Self-interest and Responsible Citizenship like many writers on restorative justice. He reviews the ancient and recent history of restorative approaches, proposes and explains a definition of restorative justice, and outlines various restorative schemes. He then contrasts restorative approaches from contemporary criminal practice and identifies ways in which the former resolves practical and ethical problems of the latter. The person who crosses this familiar territory with Lode is well rewarded because he writes with analytical precision, a scholar’s restraint, and the passion of someone with conviction. He has much to say that is worth hearing. He once again explains clearly why he favours a maximalist definition of restorative justice, one that is not limited to deliberative schemes but which applies only to harm caused by crime. He carefully and thoroughly builds his case against punishment and against restorative justice being considered an alternative punishment rather than an alternative to punishment.
Collins, Robin. "Understanding atonement: A new and orthodox theory."
In this essay, Collins studies the Christian notion of the Atonement. Asserting the essential place of the doctrine of the Atonement in Christian thought and faith, while seeking an orthodox theory of the Atonement (he distinguishes doctrine and theory), Collins critiques the satisfaction and penal theories of the Atonement that have dominated Western theology. After a summary of theories of the Atonement in Western theology, Collins addresses the problems he sees in the satisfaction and penal theories. In particular he faults them for being fundamentally judicial or juridical in character. With all of this in mind, he proposes an incarnational theory in which the Atonement is fundamentally based in or characterized by God’s grace and love for creation. Then he presents key advantages the incarnational theory has over other theories. This leads to a discussion of practical implications of the incarnational theory – for example, God’s special concern for redeeming the situation of the poor, the widow, the orphan, the prisoner, and any one who suffers. Collins’ paper includes an appendix written later that extends his perspectives on this theory.
Comparing coercive and non-coercive interventions
from James McGuire's article in Transition to Adulthood: There is a widespread perception that behaviour which society finds problematic can be changed by coercive methods: that those who are perceived as creating difficulties for others, even if they are partly understood to be experiencing difficulties themselves, will only change if they are constrained, controlled and compelled to do so.
Connolly, Marie . Family group conferences in child welfare: the fit with restorative justice.
In recent decades, restorative practices have become an important aspect of service delivery in both youth justice and in the care and protection of children. Restorative justice, as an overarching term, has also been used to describe restorative practices, particularly with respect to the use of family group conferencing, across these two practice domains. There are, however, significant differences in these two areas of practice that create theoretical and philosophical tensions when attempting to incorporate them under a restorative justice banner. This article explores these tensions and concludes that while care and protection practice has restorative elements, significant differences set it apart from restorative justice. In arguing for greater clarity between the two at a theoretical and philosophical level, the paper encourages us to explore important opportunities to enrich each practice domain with the values and principles of both. (author's abstract)

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