Theory Articles -- Full List

Articles discussing theoretical issues related to restorative justice.

. 'Rewriting history' : towards a genealogy of 'restorative justice.'

This thesis considers how ‘restorative justice’ has emerged as a legitimate response to crime. It presents the beginnings of a genealogical analysis of ‘restorative justice’ as it applies to criminal justice contexts. It comprises a ‘backwards-looking’ component, in which accepted historical accounts of ‘restorative justice’ are problematised, and a ‘forwards-looking’ component, in which a partial history of discourse of ‘restorative justice’ is presented. I conclude that these silenced discourses might be read as an incomplete and partial history of discourse of ‘restorative justice’. That is, ‘restorative justice’ ‘makes sense’ as an approach to criminal justice partly because of the credence of these discourses, upon which it relies, to some extent, for discursive legitimacy. These diverse and divergent discourses cast the ‘restorative justice’ project not as the unified and stable ‘movement’ as which it is usually portrayed, but as a fragmented and shifting phenomenon, comprised of a loose and heterogeneous assemblage of practices with variegated historical antecedents. Additionally, I conclude that some concerns raised by various scholars in the field – particularly in relation to the potential of ‘restorative practices’ to impact negatively on already marginalised and disadvantaged populations – are validated by this genealogy. (author's abstract)

. A faithful compass: rethinking the term restorative justice to find clarity.

In the field of restorative justice (RJ) there is regular debate regarding the terms restorative and justice. In spite of efforts to come to a common vision, this ongoing discussion illustrates how theoretical and practical disagreements have resulted in RJ being characterized as ambiguous and inconsistent within the judicial context and beyond. Arising out of research conducted in an educational context, this paper identifies the impact of this ambiguity on educators. More importantly, however, it examines the term justice and discovers that an overemphasis on justice as fairness and individual rights has pulled the field off-course. What is needed is a broader understanding of justice, one in which justice is identified as honoring the inherent worth of all and enacted through relationship. If understood as such, the terms restorative and justice when paired serve as a much-needed compass needle that guides proponents of RJ in the field to their desired destinations. (author's abstract)

. A multigroup analysis of reintegrative shaming theory: An application to drunk driving offenses.

A restorative justice alternative to crime prevention termed reintegrative shaming theory by Braithwaite has seen increased attention as an alternative to retributive justice, although empirical investigations of its efficacy are limited. The purpose of the present study was to test confirmatory measurement and structural models of reintegrative shaming theory in order to assess the underlying theoretical model and the application of this theory in response to drunk driving offenses. Nine latent constructs were included in these models: reintegration, stigmatization, perceived fairness, self-esteem, shame-guilt, embarrassment-exposure, unresolved shame, offender responsibility, and family support. Multigroup structural equation modeling was used to assess for measurement invariance of indicators used to measure these nine latent constructs between 724 drunk driving offenders randomly assigned to traditional court processing versus offenders assigned to reintegrative shaming conferencing following arrest. Partial metric and partial scalar invariance were found. Thus, analyses proceeded by conducting tests for significant differences in the latent means between groups. Offenders assigned to conferencing reported significantly higher mean values on the constructs reintegration, perceived fairness, self-esteem, shame-guilt, and family support, supporting Braithwaite's theory. Finally, a structural model was hypothesized based upon Braithwaite's theory to assess the relationships between the latent constructs. Three additional structural paths were included to achieve an acceptable model fit. This structural model was found to be partially invariant between groups. As predicted, a higher level of reintegration was associated with greater perceived fairness, while a higher level of stigmatization was related to decreased self-esteem and lower perceived fairness. In turn, greater self-esteem and perceived fairness were significantly related to higher reported experiences of shameguilt and lower ratings of embarrassment-exposure. Greater perceived fairness also corresponded to lower reported unresolved shame. Finally, greater shame-guilt was significantly related to greater offender responsibility and family support, while unresolved shame was significantly related to less offender responsibility acceptance. The findings from the current study support Braithwaite's hypotheses regarding the importance and benefits of disapproving of the criminal act and not the person, while allowing offenders to accept responsibility for their actions and attempt to remediate the wrong that they committed. (author's abstract)

. A study on the content of Atayal traditional concepts of justice.

Aboriginal literature have shown that aboriginals around the world usually possess particular cultures, and used religion or tribal leaders to peacefully resolve conflicts or crime. Braithwaite (1999) pointed out that, we ought to use restorative justice model first to deal with crime, and then we can reduce the need to use punitive or incapacitation justice model. There are two purposes for this study: to investigate the content of Atayal traditional justice concept and to compare it with other justice models. This study used in-depth interview to collect data. Data were collected from 8 mediators or pastors or Atayal police officials working in Atayal communities. Data analysis indicates that there is no concept of “crime” in the Atayal tradition, instead a “wrong” in used. It is also found that the traditional Atayal justice is deeply influenced by the Atayal belief system of Gaga that there should be social harmony, redemption and pursuit of absolute good in the handling of crime. This study also found that there is no punitive element in Atayal concept of justice. The Atayal traditional concept of justice is partially related to Reparatory Justice and Blood Feud model. However, the Atayal traditional concept of justice is highly related to the Restorative Justice. (authors' abstract).

. Another Kind of Justice: Transitional Justice as Recognition.

Building on this basic intuition, this article undertakes to further consider the idea of a "different kind of justice," one that is less vindictive and state-centered and is more caring and responsive to human suffering. In doing so, it relies on the concept of justice as recognition-the kind of justice that is involved in giving due recognition to the pain and humiliation experienced by victims of collective violence. Recognition here is essentially individual-centered. Unlike restorative approaches to justice, which emphasize the restoration of communal bonds, recognition focuses primarily on the individual's sense of injustice and threatened self-respect, drawing a clear line between such matters of justice and other moral concerns (including democracy, peace, or reconcihation). This focus may enable us to gain a deeper understanding of the moral dilemmas and needs arising in the aftermath of genocide or barbarous civil wars. Rather than confining the debate on transitional justice to the simplistic either/or choice of "retribution versus restoration," this approach makes room for a broader, more critical, and sensitive outlook by asking how injustice looks to the victims.(excerpt)

. Beyond retribution: Conceptualizing restorative justice and exploring ts determinants.

Previous research considering reactions to injustice has focused predominantly on retributive (i.e., punitive) responses. Restorative justice, a relatively understudied concept, suggests an alternative justice response which emphasizes bilateral discussion in an attempt to reach a consensus about the meaning of the offense and how to address the transgression. The current research explores the additional contribution of restorative justice processes, examining the extent to which bilateral consensus is viewed as a fairer response to transgressions than unilateral decisions. Results show that, independent of the punishment, restorative responses are generally regarded as fairer than nonrestorative responses. And compared to punishment, which tends to be moderated by offender intent and seriousness of the harm, restorative responses are regarded as particularly fair when the involved parties share an identity. Findings suggest the importance of distinguishing retributive justice from a ‘‘restorative notion of justice’’—a notion that focuses on addressing concerns over the maintenance of existing social relationships and identity-defining values.(author's abstract)

. Can amnesties and international justice be reconciled?

When states are attempting to recover from periods of serious human rights abuse, they often must try to reconcile the competing demands of different stakeholders. These demands may range from claims that complete impunity is a necessary sacrifice to achieve peace, to the belief that without justice no meaningful peace can be reached. This paper will attempt to highlight the ways in which international courts and quasi-judicial bodies address the dilemma of peace versus justice, in relation to amnesty laws. The discussion will consider the main international standards on impunity, the international jurisprudence relating to amnesties and whether international courts should recognize amnesties that are accompanied by alternative forms of justice. This paper will argue that international courts should recognize amnesties that are introduced with democratic approval to promote peace and reconciliation, provided that they are accompanied by mechanisms to fulfil the victims’ rights. (author's abstract)

. Collective Memory, International Law, and Restorative Social Processes After Conflagration: The Holocaust.

ollective memory after war, atrocity, and genocide may continue to bind surviving generations in a vortex of violence because remembrance of the cruelty is so vivid. Yet, collective memory as it was conceptualized originally is associated with constructive social change as society adjusts to a variety of kinds of forces. The Holocaust (1933—1945) as a model of genocide represents both an immense human tragedy and what happens at a breakpoint in the values sustaining society and collective memory. Holocaust survivor generations in Israel and Germany or elsewhere, however, have not succumbed to a cycle of vengeance after genocide and atrocity. International law may have influenced this outcome. It has played a major role in addressing human rights abuse and good governance of peoples and trade since 1945. Looking at the lived experience of atrocity and the importance of social processes that restore lives and community in the aftermath of conflagration, this article explores the interplay between collective memory and international law associated with World War II and the Holocaust. (author's abstract)

. Confidentiality and Victim-Offender Mediation

This book reports on a research project which studied the appropriate level of confidentiality that should apply to mediation-delivered information, regarding the out-of-court setting and the judicial context. Various exceptions to the high level of confidentiality that should apply to the issues discussed in mediation are developed. Additionally, it is explained how the thus advocated scope of the principle of confidentiality should be implemented in practice. (Excerpt)

. Criminal Alternative Dispute Resolution: Restoring Justice, Respecting Responsibility, and Renewing Public Norms .

This Article explores theoretical concerns underlying contemporary appeals to Alternative Dispute Resolution ("ADR") in the criminal justice system. Analyzing literature on free will and responsibility and leading work on transitional justice, I argue that a restorative justice approach to criminal ADR better accommodates the realities of social conditions that correlate with criminality while respecting deeply-held concepts of responsibility. I further argue that this approach provides a useful response to critics, such as Owen Fiss, who argue that ADR privatizes disputes, thereby failing to produce and reinforce essential public norms. (author's abstract)

. Culture, conflict resolution and the legacy of colonialism.

Colonialism impacted local cultures far beyond their infrastructure, government and geography. In addition to eroding indigenous power structures, the structural violence inflicted during colonialism left native populations with lasting self-doubt and rejection of traditional practices. Among these rejected traditions are informal processes of resolving conflict. Conflict resolution methods in different cultures often vary greatly in underlying values and perceptions. Western judicial systems reflect individualistic, highly uncertainty avoidant, low-context tendencies, while indigenous conflict resolution methods reflect collectivistic, minimally uncertainty avoidant, high-context tendencies. Research into the current state of formal courts and informal justice forums in present-day rural Cameroon and Vanuatu provides case study-based evidence arguing that the transition from restorative justice to retributive justice catalyzed by colonialism has effectively crippled both systems of justice. Due to impacted value systems, neither the restorative, social harmony focus of traditional processes, not the retributive, compensatory justice focus of the formal judicial system make the available forums wholly appropriate or adequate resources. (author's abstract)

. Debating restorative justice.

In this first volume of the series Carolyn Hoyle argues that communities and the state should be more restorative in responding to harms caused by crimes, antisocial behaviour and other incivilities. She supports the exclusive use of restorative jsutice for many non-serious offences, and favours approaches that, by integrating restorative and retributive philosophies, take restorative practices into the 'deep end' of criminal justice. While acknowledging that restorative justice appears to have much to offer in terms of criminal justice reform, Chris Cunneen offers a different account, contending that the theoretical cogency of restorative ideas is limited by their lack of a coherent analysis of social and political power. He goes on to argue that after several decades of experimentation, restorative justice has not produced significant change in the criminal justice system and that the attempt to establish it as a feasible alternative to dominant practices of criminal justice has failed. This lively and valuable debate will be of great interest to everyone interested in the criminal justice system. (publisher's description).

. Delineating the scope of Reintegrative Shaming theory: An explanation of contingencies using Russian data.

Drawing on predictions derived from self-control theory, general strain theory, and deterrence theory, we attempt to improve Braithwaite’s shaming theory by identifying conditions under which its causal process might be more effective in explaining misbehavior. Using data elicited from 224 Russian respondents, we put the elaborated version of shaming theory to the test in its. In line with previous research, study findings indicate that, contrary to the theory’s predictions, being reintegratively shamed is positively associated with projected deviance. While some of the hypothesized contingencies seem to condition the effects of shaming on projected deviance, none of our findings confirm original hypotheses. These results, in conjunction with the accumulated body of research, suggest that reintegrative shaming theory may be in need of further revision. (author's abstract)

. Deterrence, democracy, and the pursuit of international justice.

In recent years efforts to hold the perpetrators of mass atrocities accountable have become increasingly normalized, and building capacity in this area has become central to the strategies of numerous advocacy groups, international organizations, and governments engaged in rebuilding and reconstructing states. (1) The indictment of sitting heads of state and rebel leaders engaged in ongoing conflicts, however, has been more exceptional than normal, but is nonetheless radically altering how we think about, debate, and practice justice) Arrest warrants for Sudanese president Omar Hassan Ahmad al-Bashir, Liberian president Charles Taylor, and the leader of the Lord's Resistance Army in Uganda, Joseph Kony, have not only galvanized attention around the role of international justice in conflict but are fundamentally altering the terms of debate. While a principled commitment continues to underpin advocacy for justice, several court documents and high-profile reports by leading advocacy organizations stress the capacity of international justice to deliver peace, the rule of law, and stability to transitional states. (3) Such an approach presents a stark contrast to rationales for prosecution that claim that there is a moral obligation or a legal duty to prosecute the perpetrators of genocide, crimes against humanity, and war crimes. Instead, recent arguments have emphasized the instrumental purposes of justice, essentially recasting justice as a tool of peacebuilding and encouraging proponents and critics alike to evaluate justice on the basis of its effects. (excerpt)

. Friendship at the Margins: Discovering Mutuality in Service and Mission

Chris Heuertz, international director of Word Made Flesh, and theologian and ethicist Christine Pohl show how friendship is a Christian vocation that can bring reconciliation and healing to our broken world. They contend that unlikely friendships are at the center of an alternative paradigm for mission, where people are not objectified as potential converts but encountered in relationships of mutuality and reciprocity. (Excerpt)

. Gendered violence and restorative justice: the views of New Zealand Opinion Leaders.

Although New Zealand has been a pioneer in the development and expansion of restorative justice in the adult and youth criminal justice systems, it has taken a more cautious approach to using restorative justice in adult cases of gendered violence. We present interviews of 19 New Zealand Opinion Leaders on the appropriateness of restorative justice for partner, family, and sexual violence, and child sexual abuse (CSA). We found that three groups, rather than two, better describe the range of positions: these are the Supporters, Skeptics, and Contingent Thinkers. All viewed child sexual assault as least suitable for restorative justice, with relatively more support in cases of partner, family, and sexual violence. The Opinion Leaders' positions were shaped by their experiences with restorative justice, professional position, racial and ethnic identities, and views of the criminal justice system. The participants' views were complex and varied, and not easily contained in a simple `for' or `against' dichotomy. (author's abstract)

. Honing the stone: refining restorative justice as a vehicle for emotional redress.

Commentators have frequently claimed that restorative justice (RJ) programs hold the potential to deliver therapeutic outcomes. However, if we are serious about integrating a therapeutic agenda into criminal justice, our current understanding of the mechanics of RJ is incomplete. Having established a case for doing justice better, proponents of RJ now need to think in much more concrete terms about the ways in which the process is designed in order to reap a tangible sense of forgiveness, reconciliation, and closure for victims of crime. From the evidence to date, it is suggested that there are four ‘keys’ which may be used to unlock the therapeutic potential of RJ. These are: (1) personal narratives; (2) apology; (3) forgiveness; and (4) procedural justice within restorative programs. A major challenge for future research in the area is to attempt to measure how these aspects of RJ operate at a micro-level to transform emotions.(author's abstract)

. Judging Victims: Why We Stigmatize Survivors, and How They Reclaim Respect

Dunn explores the shifting perceptions over time of victims as blameworthy, blameless, pathetic, or heroic figures. She also links those images to their real-world consequences, demonstrating that they dominate the ways in which people think about intimate violence and individual responsibility. Her analysis cuts to the core of fundamental issues at the center of debates about crime and deviance, victimization, and social problems. (Excerpt)

. No forgiveness without justice?

In my remarks this evening, I want to address the question of whether it is right to ask people to forgive when there is no justice and no prospect of justice. Is anger about injustice one of the forces that drives historical progress and important social reform? Is there an important difference between the bitterness,hatred and quest for vengeance that can be so damaging to those who have been hurt or wronged, and the anger that thirsts after justice? There is no doubt that a sense of bitterness and hatred can perpetuate theeffects of the wrong that has been done, by destroying the life and spirit of those who have been wronged; but is there a difference between letting go of the hatred, and extending forgiveness for a wrong that has not been held to account? (excerpt)

. On Legitimacy Theory and the Effectiveness of Truth Commissions

But are truth commissions effective? Of course, the first part of the answer to this question requires an answer to an earlier query: Effective at what? Can a truth commission create a democratic political system? Probably not. Can it erase a history of intense political conflict, bringing all sides together in a spirit of mutual respect and cooperation? Surely not. But, to lower our expectations, can a truth commission contribute to a collective memory for a society, providing at least some common understanding of a country’s conflictual past, including some appreciation of the motives of “the enemy”? Can a truth commission contribute to the development of a rule-of-law culture that respects human rights and thereby raises the costs of future efforts to violate the human rights of the citizenry? Can a truth commission advance political tolerance, a central component of a democratic political culture and a necessary ingredient for coexistence? The answers to these questions, while still subject to considerable disagreement and debate, are most likely that, under at least some conditions and to at least a limited degree, truth commissions can indeed contribute to societal transformation. (excerpt)