This paper discusses a non-state justice system (Sistema Comunitario de Seguridad, Justicia y Reeducación, hereafter: SCSJR) applied by some of the Afromexican and Indigenous communities of the Guerrero state in Mexico as an example of a maximalist restorative justice system. Restorative justice is presented here as an alternative to criminal justice. While it responds to similar moral concerns as retributive justifications do, it offers more adequate mechanisms of dealing with certain crimes and aims to reduce coerciveness of (...) justice when dealing with lawbreaking. Restorative justice is also an approach that should be perceived as more legitimate when handling cases where the state lacks the moral standing to prosecute offenders. The SCSJR is used as an example to demonstrate the possibility of a justice system based on restorative principles to be effective in handling the entirety of lawbreaking in a community. In the case of the SCSJR this approach to justice has been proved to be effective even in the wake of high levels of criminal activity in the region. This paper discusses the SCSJR’s institutions and attitude toward lawbreaking and argues that they demonstrate an example of a justice system based on restorative justice. (shrink)

This essay addresses tensions within political philosophy between group rights, which allow historically marginalized communities some self-governance in determining its own rules and norms, and the rights of marginalized subgroups, such as women, within these communities. Community norms frequently uphold patriarchal structures that define women as inferior to men, assign them a subordinate status within the community, and cut them off from the individual rights enjoyed by women in other sections of society. As feminists point out, the capacity for (...) voice and exit cannot be taken for granted, for community norms may be organized in ways that deny women any voice in its decision-making forums as well as the resources they would need to survive outside the community. This essay draws on research among the Gond, an indigenous community in India, to explore this debate. Given the strength of the forces within the community militating against women’s capacity for voice or exit, the question motivating our research is: Can external organizations make a difference? We explore the impacts of two external development organizations that sought to work with women within these communities in order to answer this question. (shrink)

In this dissertation I argue for a theory of rectificatory justice, and apply that theory to circumstances involving two social groups generally thought to have been historically wronged, viz., Native Americans and African Americans. ;Development of a conception of rectificatory justice is begun in Chapter 1 by examining the distinction between distributive justice and rectificatory justice, and by suggesting a theory of compensation. It is argued that the notion of compensation cannot provide an adequate ground for a species of justice. (...) ;I argue in Chapter 2 that a taxonomy of justice ought to consist of only two species, viz., distributive justice and rectificatory justice. In addition to compensation, the view of rectification argued for includes accounts of restoration, apology, and punishment. Some theories of so-called corrective justice are examined, and are found to be morally inadequate. ;In Chapter 3, I examine several views of a right to compensation, including those of Joel Feinberg and Judith Jarvis Thomson. Jules Coleman's claim that a requirement in justice for compensation can arise without the transgression of rights is examined and then rejected. ;After suggesting a theory of social groups, and adopting Allen Buchanan's account of groups rights, I argue in Chapter 4 that rectification rights can be legitimately ascribed to social groups. I assess the practical implications of my theory of rectificatory justice by applying it to two cases. In the first case, I argue that the fishing rights that were restored to Native American tribes of the Northwest as a result of U.S. v. Washington are justified when grounded on their right to rectification; hence, the claim that the restoration of these rights constituted an injustice to non-Native American fishing interests is mistaken. In the second case, I show how a right to rectification can legitimately be ascribed to African Americans as a group. ;The dissertation concludes with Chapter 5, where I consider several justificatory arguments for a moral statute of limitations on injustice. I conclude that a significant part of any such argument must ultimately rest on our judgements about competing claims. (shrink)

Punishment involves the intentional infliction of harm and suffering. Both of the most prominent families of justifications of punishment – retributivism and consequentialism – face several moral concerns that are hard to overcome. Moreover, the effectiveness of current criminal punishment methods in ensuring society’s safety is seriously undermined by empirical research. Thus, it appears to be a moral imperative for a modern and humane society to seek alternative means of administering justice. The special issue of Diametros “The Abolition of (...) Punishment: Is a Non-Punitive Criminal Justice System Ethically Justified?” was brought into life precisely to give the authors a platform for such progressive inquiries. And it is now safe to say that this platform has been put to excellent use, since Valerij Zisman, Alexander Stachurski, Giorgia Brucato, Perica Jovchevski, Sofia M. I. Jeppsson, Stephen G. Morris, Benjamin Vilhauer, John Lemos, Saul Smilansky, Elizabeth Shaw, Mirko Farina, Andrea Lavazza and Sergei Levin have presented such thought-provoking texts that they are bound to set the stage for debate in the years to come. This article is an introduction to this special issue and to the authors’ papers. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Abortion to Abolition: Reproductive Health and Justice in Canada by Martha PaynterRebecca Simmons (bio)Abortion to Abolition: Reproductive Health and Justice in Canada by Martha Paynter Winnipeg, MB: Fernwood Publishing, 2022Martha Paynter's Abortion to Abolition: Reproductive Health and Justice in Canada is a bold, ambitious work that seeks to not only catalog Canada's meandering and often backtracking path toward reproductive justice, but to act as a (...) manifesto for Paynter's own ideas and goals for reproductive justice. The book takes the form of an anthology of stories, divided into chapters, that are grouped according to a certain right; for example, the right to bodily autonomy. This format effectively guides the reader from abortion to abolition. Paynter adroitly starts the book with white feminist favorites such as bodily autonomy and not having children. Then she logically progresses to more radical ideas such as parenting in prison and the total abolition of prisons. The stories in this book are accompanied by warm, colorful illustrations by Julia Hunt. These drawings help the reader visualize the person behind the story and the very real life that was affected by reproductive law and/or social norms. Paynter holds a PhD in nursing, and it is from this background that she writes, seeking to educate nurses and other healthcare professionals alongside a broader readership garnered through her clear, approachable writing style.Chapter 1 introduces the reader to many of the book's key themes by considering the right and need to have bodily autonomy, and the multiple ways this manifests itself in ordinary (and less-ordinary) life. Paynter considers the disparate stories of five women, all fighting in some way for bodily autonomy. The stories cover events of gender-based gun violence, sexual assault, transgender rights in prison, the legalization of sex work, police violence, and institutional racism. Each story recounted by Paynter catalogs tragedies and injustices with blunt and brutal honesty—perhaps to an unnecessary extent. Every horrific fact is laid bare for the readers as they uncover the intricacies of gender-based, imperialist, and racist violence. Paynter has chosen these stories to display the multitude of ways in which people—especially Black, Indigenous, people of color (BIPOC) and minoritized genders—can be willfully wronged by the state and [End Page 209] the criminal justice system, such that the reader must begin to confront the fact that these structures don't seem to exist to benefit or protect the most marginalized in society.Chapter 2 approaches the right not to have children through a number of stories related to contraception, abortion, and family planning. Paynter sketches some of the key points in Canada's journey toward the decriminalization of abortion, from paradoxical trailblazers, such as Dr. Emily Stowe in the 1800s, to the viral memefied content of art protestor iamkarats. While the unequivocal legality of abortion in Canada suggests incredible progressiveness and support for women's rights, Paynter paints a more complex picture through her chosen narratives. Crucially, the inequitable geographical access to abortion, in particular, throughout the huge landmass of Canada suggests that the right to not have children in Canada is not universal. Moreover, Paynter suggests that access is also bounded by financial constraints, finite public funding, and the limited availability of inclusive clinics that prioritize healthcare for LGBTQ2S+ people.Chapter 3 considers the topic of having children; in particular, the right to reproductive technologies and freedom from forced sterilization. Paynter quickly makes clear that while many white feminists might see having and not having children as diametrically opposed, they are two equally essential parts of reproductive justice. Paynter draws attention to the Sexual Sterilization Act of 1928 that was only overturned in 1972. She describes it as part of the "genocidal colonial project" (84), a collection of laws and policies aimed at fulfilling eugenicist, neoimperial ideals of increasing production of the white "race" and promoting the genocide of Indigenous peoples. Furthermore, Paynter argues that evidence of forced sterilization of Indigenous peoples, and other physical violence and neglect, persists to the present day and must be stopped and reparations made for previous harms. Paynter then considers the complex, often-debated case of commercialized surrogacy, which she defines... (shrink)

This book takes bold steps in forming much-needed philosophical foundations for restorative justice through deconstructing and reconstructing various models of thinking. It challenges current debates through the consideration and integration of various disciplines such as law, criminology, philosophy and human rights into restorative justice theory, resulting in the development of new and stimulating arguments. Topics covered include the close relationship and convergence of restorative justice and human rights, some of the challenges of engagement with human rights, the (...) need for the recognition of the teachings of restorative justice at both the theoretical and the applied level, the Aristotelian theory on restorative justice, the role of restorative justice in schools and in police practice and a discussion of the humanistic African philosophy of Ubuntu. With international contributions from various disciplines and through the use of value based research methods, the book deconstructs existing concepts and suggests a new conceptual model for restorative justice. This unique book will be of interest to academics, researchers, policy-makers and practitioners. (shrink)

Machine generated contents note: 1 Introduction 1 -- 2 Central themes and critical issues 10 -- Introduction 10 -- Core themes 11 -- Differences which have surfaced in the move from -- margins to mainstream 15 -- The claims of restorative justice: a brief examination 21 -- Some limitations of restorative justice 25 -- Some dangers of restorative justice 29 -- Debunking restorative justice 32 -- 3 Reviving restorative justice traditions 36 -- The rebirth of (...) an ancient practice 36 -- Pre-modem criminal justice 37 -- The renaissance of native justice traditions 43 -- Navajo peacemaking 44 -- Can one characterise ancient and indigenous -- justice as restorative? 47 -- Can one revive restorative justice traditions? 49 -- Conclusion: did restorative justice ever die? 59 -- 4 Healing the victim 62 -- Introduction 62 -- The experiences and needs of victims 64 -- The inadequacy of punitive justice for the victim 67 -- Victim reforms 70 -- Restitution from the offender 74 -- Beyond restitution: restoring victims 76 -- Restorative justice or 'clubbing together'? 78 -- Using victims to rehabilitate offenders 81 -- Paternalism towards victims 83 -- Balancing the needs of the victim with those of society 84 -- 5 A restorative approach to offenders 87 -- Introduction 87 -- Restorative justice as an alternative to retributive justice 88 -- Restorative justice as an alternative to treatment 94 -- The goals and methods of restorative justice in relation -- to offenders 95 -- An alternative to punishment or an alternative form of -- punishment? 106 -- An alternative to treatment? 111 -- 6 Shame, apology and forgiveness 114 -- Introduction 114 -- Restorative cautioning 115 -- The psychological routes of restorative conferencing 116 -- The idea of reintegrative shaming 118 -- Some questions about shaming 123 -- Apology and forgiveness 132 -- 7 Mediation, participation and the role of community 136 -- Introduction: handling criminal conflicts 136 -- The rationale for the restorative justice process 140 -- Achieving restorative goals 141 -- Moral development and the strengthening of community 144 -- The role of community 151 -- 8 The future of restorative justice 161 -- Introduction 161 -- Implementing restorative justice: the paths less likely 163 -- The implementation of restorative techniques 166 -- Restorative justice and the pattern of penal control 169 -- The future of restorative justice research 170 -- Appendix to chapter 3: the theological roots of judicial -- punishment 172. (shrink)

This chapter makes the argument that the origins of restorative justice are to be found in the Aristotelian notion of “επανορθωτικόν δίκαιον” (corrective or rectificatory justice). A linear historical approach to the Aristotelian theory of justice was avoided. Instead, we argue that certain aspects of this school of thought are reflected in contemporary restorative justice discourse. The concepts of ‘fairness’, justice’, ‘equity’, ‘restoration’, ‘punishment’, ‘responsibility’ and ‘polis’ are the common places (κοινοί τόποι) where Aristotle and restorative justice (...) theories meet. These ‘τόποι’ help us reflect on the roots of restorative justice, (re)define its values and help us (re)position RJ within the worlds of theory, research and practice. (shrink)

In the United States “restorative justice” typically refers to small-scale measures that divert alleged wrongdoers from a standard path through the criminal justice system by funneling them into alternative justice programs. These aim not to punish the offender, but to constructively address the harm that wrongdoing may have caused to individuals or to the community, engaging with the wrongdoer to come to a response that might heal and repair the harm. -/- Yet restorative justice initiatives generally fail to (...) challenge and transform the racist system of mass incarceration. This book argues that these initiatives have the potential to do so, but that we need to better understand what restorative justice is, and how it should be implemented. It claims that restorative justice can achieve its desired effect only insofar as it provides a mode of association between people that is, at its core, moral and spiritual. The book explores the ways in which restorative justice ethics and practices exhibit moral and spiritual dynamics, and what difference such “lived religious” dynamics can make for purposes of transforming structural violence. -/- Looking to Chicago’s restorative justice network as a model for developing these transformational and sustainable social changes, the volume showcases real-life examples of the kinds of practices and initiatives needed to shift the entrenched dynamics that fuel the prison-industrial complex across the United States. The book argues that restorative justice has the capacity to transform systemic injustices inscribed in U.S. mass incarceration in ways that mediate the "prison reform" vs "prison abolition" dichotomy. (shrink)

I assess a justification for the granting of transitional amnesties conditional, at the minimum, upon full disclosure of wrongdoing by perpetrators. According to this rationale, such amnesties are morally legitimate because they foster restorative justice. I distinguish between two conceptions of restorative justice that I call the punishment-deprioritizing and punishment-prescribing conceptions. I argue that while conditional amnesties granted to perpetrators of minor offences conditional upon full disclosure, verbal apology and reparations could promote restorative justice well enough to (...) justify them in the eyes of adherents of the punishment-deprioritizing conception, conditional amnesties in favour of perpetrators of serious human rights abuses, because they are unlikely ever to be conditional upon perpetrators’ carrying out burdensome reparations, are likely to promote restorative justice on the punishment-deprioritizing conception only to a limited extent and not enough to justify them from the standpoint of adherents to this conception. Conditional amnesties, I contend, cannot ever promote restorative justice on the punishment-prescribing conception because it holds that punishment is indispensable for the achievement of the aims of restorative justice and amnesties exempt perpetrators from criminal punishment. (shrink)

In the Philosophy of Right, Hegel claims that crime is a negation of right and punishment is the “negation of the negation.” Punishment, for Hegel, “annuls” the criminal act. Many take it that Hegel endorses a form of retributivism—the theory that criminal offenders should be subject to harsh treatment in response and in proportion to their wrongdoing. Here I argue that restorative criminal justice is consistent with Hegel's remarks on punishment and his overall philosophical system. This is true, in (...) part, because restorative justice integrates Hegel's instructive discussion of confession and forgiveness in the Phenomenology of Spirit. Hegel claims that true moral relationships allow space for persons to confess their moral shortcomings and forgive the shortcomings of others. Restorative criminal justice brings the perpetrators and victims of crime together to offer confessions and forgiveness and to work to heal the various wounds caused by crime. I do not claim that Hegel must be read as advocating restorative justice. While Hegel tells us what punishment does, he does not commit himself to any form of punishment. What I offer here is a rational, progressive reconstruction and extension of Hegel's conception of crime and punishment. (shrink)

The doctrine of proportionality seeks to limit arbitrary and capricious punishment in order to ensure that offenders are punished according to their ‘just desert’. In Australian sentencing law, proportionality goes some way toward achieving this ‘balanced’ approach by requiring a court to consider various and often competing interests in formulating a sentence commensurate with offence seriousness and offender culpability. Modification of sentencing law by the introduction of victim impact statements or the requirement that sentencing courts take explicit account of the (...) harm done to the victim and community has generated debate, however, as to the extent to which offenders may be now subject to unjustified, harsher punishments. This article proposes that in order to overcome the controversy of the modification of offender and victim rights in sentencing, sentencing courts adhere to a doctrine of proportionality that is explicitly sensitive to the needs of victims and offenders in a model of restorative justice that focuses on the consequences of crime as against the individual, rather than the state. The extent to which proportionality, as the current constitutive principle of Australian sentencing law, may be modified to better encourage a dialogue between victim and offender is discussed. (shrink)

In the transition from a repressive to a democratic society, the successor government faces the problem of how to deal with grave human rights violations such as killings and torture committed under its predecessor. This paper analyzes the dilemma a new government may encounter when it attempts to prosecute and punish those found responsible. On one hand, trials of chargeable officers may be able to prevent human rights abuses in the future and to facilitate instituting or restoring democracy. On the (...) other, in the case that there were no legal rules definitively prohibiting the abuses committed by these officers, the trials require ex post facto laws, which breach the principle of nulla poena sine lege, and more generally violate the rule of law. These retroactive laws not only break legal predictability but treat individuals unfairly. After identifying both the need for, and the legal and political losses incurred by such criminal trials, the author examines the claims that international law resolves the dilemma of retroactive justice or that prosecution is justified as a fulfillment of international obligation. Then the author refers to this dilemma as “dirty hands” to characterize a circumstance in which one cannot avoid using the wrong means to obtain the best ends. Such characterization has normative implications for three aspects of trials: the process of enacting retroactive laws and the process of conducting the trials; the choice of other possible legal remedies; and the principles related to reactions in the international community. (shrink)

Political theorists have begun to re-examine claims by indigenous peoples to lands which were expropriated in the course of sixteenth-eighteenth century European expansionism. In Australia, these issues have captured public attention as they emerged in two central High Court cases: Mabo (1992) and Wik (1996), which recognize pre-existing common law rights of native title held by indigenous people prior to European contact and, in some cases, continue to be held to the present day. The theoretical significance of the (...) two Australian cases is examined and the links drawn out between the current debate about Aboriginal land rights in Australia and the wider philosophical debate about indigenous land rights, property rights, and indigenous justice as characterized by Jeremy Waldron and James Tully. Justice towards indigenous groups requires substantial acknowledgement and recognition of the values and institutions of the relevant indigenous group; yet, these values and institutions may not readily fall under the framework of existing state structures. Attempts to redress injustice towards indigenous groups which do not question the justice of existing state institutions will therefore prove to be inadequate responses to indigenous peoples' demands for substantive justice. (shrink)

International Indigenous rights coalitions increasingly involve Indigenous and non-Indigenous civil society organizations with diverse backgrounds and interests. As these organizations more frequently interact and partner with one another, what issues are being emphasized in their advocacy efforts? This study utilizes content analysis of 60 Indigenous rights organizations’ websites, as well as interviews of several leaders and staff, to explore whether African Indigenous organizations emphasize different aspects of Indigenous rights in their messaging and advocacy than (...) their other Indigenous and non-Indigenous coalition partners, We find that African Indigenous CSOs discuss issues of unequal treatment more frequently, and issues of self-determination and assimilation less frequently, than their coalition partners. The messaging of Indigenous organizations outside of Africa contained similar themes as that of non-Indigenous CSOs. This raises questions regarding why these messages differ: do African Indigenous groups have distinct concerns and/or are there other reasons for the variance in messaging across international Indigenous rights coalitions. (shrink)

We are living in a world where power abuse has become the new norm, as well as the biggest, silent driver of persistent inequalities, racism and human rights violations. As humanity is getting to grips with socio-economic consequences that can only be compared with those that followed World War II, this timely book challenges current thinking, while creating a much needed normative and practical framework for revealing and challenging the power structures that feed our subconscious feelings of despair and defeatism. (...) Structured around the four concepts of power - race - justice - restorative justice, the book uses empirical new data and normative analysis to reconstruct the way we prevent power abuse and harm at the inter-personal, inter-community and international levels. This book offers new lenses, which allow us to view power, race and justice in a modern reality where communities have been silenced, but through restorative justice are gaining voice. The book is enriched with twenty-five case studies written by survivors, practitioners and those with direct experiences of power abuse and inequality. Through robust research methodologies, Gavrielides' new monograph reveals new forms of slavery, while creating a new, philosophical framework for restorative punishment through the acknowledgement of pain and the use of catharsis for internal transformation and individual empowerment. This is a powerful book that generates much needed hope. Through a multi-disciplinary dialogue that uses social sciences, criminology, law, psychology and human rights, the book opens new avenues for practitioners, researchers and policy makers internationally. (shrink)

Ambedkar denounced caste system for violating the respect and dignity of the individual; yet his critique of caste-ridden society also foregrounds the limits of the theory and practice of citizenship and liberal politics in India. Since membership of a caste group was not a voluntary choice, but determined by birth and hence a coercive association, the liberal view of the self as a totally unencumbered and radically free subject seemed plagued with difficulties. Though the nation state envisages a political (...) community co-extensive with one cultural community, it need not, Ambedkar argued, necessarily lead to abolition of discriminatory caste practices in civil society. To restore the cultural rights of stigmatised populations, unredeemed by the nation state, propelled Ambedkar to seek solution in B. (shrink)

The thesis discusses the justice of state punishment in response to criminal wrongs. The introductory chapter explores the logic of the concept of justice itself, proposing that we understand justice as the function of remedying injustice. This negative approach – studying justice through injustice – allows us to critically evaluate theories of retributive justice via the conceptions of the wrong in crime that they entail, and for which punishment is perceived as a remedy. Examples of the conceptions of the wrong (...) in crime considered in the first part of the thesis are: ‘infringement of mutual freedom’, ‘freeloading’, ‘undermining the mutual benefits of law’, ‘undeserved profit’, ‘harm to the victim’ and ‘material imbalance’. Punishment, upon each of these conceptions, is just to the extent that it remedies the particular wrong of the crime, for instance by cancelling its undeserved profits or by alleviating the harm of the victim. The first part of the thesis culminates in a prolonged discussion of what is deemed the most suitable theory of punishment in a modern democratic state, the ‘Freedom Perspective’ based on a Kantian-Hegelian framework, whereupon crime is wrong because it infringes upon mutual freedom. The second part discusses the possible injustice of punishing severely socially deprived offenders. Specifically, it considers four reasons for the justice of lowering or abstaining from punishment of this group of offenders. These reasons relate to the material, cultural and psychological factors which increase this group’s likelihood of committing crimes and of being punished. These factors are to some extent the result of unjust social structures in society. Hence, this part discusses the links between social justice and criminal justice. Finally, the thesis examines the justice of an alternative way of remedying the wrong in crime: restorative justice processes between victim, offender and other parties to the crime. The concluding remarks are devoted to the meta-issue of how to conceive of justice when facing competing, yet plausible claims of justice. (shrink)

One prominent argument in international law and religious thought for abolishing capital punishment is that it violates individuals’ right to life. Notably, this _right-to-life argument_ emerged from normative and legal frameworks that recognize deadly force against aggressors as justified when necessary to stop their unjust threat of grave harm. Can capital punishment be necessary in this sense—and thus justified defensive killing? If so, the right-to-life argument would have to admit certain exceptions where executions are justified. Drawing on work by Hugo (...) Bedau, I identify a thought experiment where executions are justified defensive killing but explain why they cannot be in our world. A state’s obligations to its prisoners include the _obligation to use nonlethal incapacitation_ (ONI), which applies as long as prisoners pose no imminent threat. ONI precludes executions for reasons of future dangerousness. By subjecting the right-to-life argument to closer scrutiny, this article ultimately places it on firmer ground. (shrink)

Provides an international perspective as to the potential of restorative justice to * Deliver better ways of dealing with offenders and victims * Reduce the use ...

Normal 0 21 false false false ES-CO X-NONE X-NONE MicrosoftInternetExplorer4 In this paper we study the Kantian conception of punishment in the Metaphysics of Morals. We look at Foucault’s reformulation of the right to punish which is mostly a critique of the kantian conception. Then we introduce the conception of restorative justice grounded on the social ideal of recognition, which corrects certain aspects of the Kantian conception, but gives to justice its status of an institution rather than being a (...) critique of it. (shrink)

Punishment is a topic of increasing importance for citizens and policy makers. Why should we punish criminals? Which theory of punishment is most compelling? Is the death penalty ever justified? These questions and many others are addressed in this highly engaging guide. Punishment is a critical introduction to the philosophy of punishment offering a new and refreshing approach that will benefit readers of all backgrounds and interests. This is the first critical guide to examine all leading contemporary theories of punishment, (...) including the communicative theory of punishment, restorative justice, and the unified theory of punishment. There are also several case studies examined in detail including capital punishment, juvenile offending, and domestic abuse. -/- Punishment highlights the problems and prospects of different approaches in order to argue for a more pluralistic and compelling perspective that is novel and groundbreaking. -/- Introduction; Retributivism; Deterrence; Rehabilitation; Restorative Justice; Rawls, Hart, and "mixed" theories; Expressivism; The Unified Theory; Capital Punishment; Juvenile Offending; Domestic Abuse; Sexual Crimes; Conclusion; Index. (shrink)

In the United States, convicted offenders frequently lose the right to vote, at least temporarily. Drawing on the common observation that citizens of color lose democratic rights at disproportionately high rates, this chapter argues that this punishment is problematic in non-ideal societies because of the way in which it diminishes the political power of marginalized groups and threatens to reproduce patterns of domination and subordination, when they occur. This chapter then uses the case of penal disenfranchisement to illustrate how idealized (...) discussions of deterrence, rehabilitation, and retribution often ignore the relationship between punishment and social/political power, and thus systematically obscure morally significant aspects of our broader penal practices. (shrink)

In The Practice of Punishment, Wesley Cragg sets out a systematic “restorative” theory of criminal punishment. For him, restorative justice identifies the goal of punishment as “the resolution of disputes to which criminal offenses give rise in ways designed to sustain confidence in the capacity of the law to fulfil its legitimate functions on the part of victims of crime and the public at large”.

For the peoples who have inhabited, since time immemorial, the lands within the external borders of the U.S., remediation of genocide, land theft, and ethnocide is a pressing issue. However, monetary reparations would frustrate the reacquisition of the American Indian capacity to self-determine on ancestral lands. Because the injustice at the core of U.S. history is neither broadly acknowledged nor deeply understood, Part I provides historical foundation and sketches the factual predicate to the American Indian claim for redress. Part II (...) presents and evaluates theories of justice with respect to this claim. Part III counters the shortcomings of these theories with a theory, Justice as Indigenism, that propounds a program of land restoration and legislative reform that will accord the full measure of relief to American Indians consistent with the requirements of justice for all peoples. (shrink)

This book explores the concept of punishment: its meaning and significance, not least to those subject to it; its social, political and emotional contexts; its role in the criminal justice system; and the difficulties of bringing punishment to an end. It explores how levels of criminal punishment could and should be reduced, without compromising moral standards, public safety or the rights of victims of crime. Core contents include: Why punishment matters, the salience of emotions in its various discourses and the (...) role of culture. The politicisation of punishment and legitimacy. The penal system, the prominence of the prison in research on punishment and the role of community sanctions. The aims of punishment, its limits and the role of power. The ethics of punishment and human rights. Punishment and social order. This book is essential reading for all criminologists, as well as students taking courses on punishment, penology, prisons and the criminal justice system. (shrink)

Discipline Over Punishment is an exploration of the transformative potential of restorative discipline practices in schools, ranging from the micro-level of one-on-one interactions with students to the macro-level of re-routing the school-to-prison pipeline and improving life outcomes for young people. Gardner, who continues to teach high school in Oakland, CA, has spent nearly 20 years innovating, struggling, and succeeding to implement various restorative justice practices in classrooms and schools around the Bay Area. Using classrooms and schools where he (...) has taught and students, families and educators with whom he has worked, Gardner examines how restorative justice, as a set of beliefs and practices can be a force for justice and equity in our classrooms, schools, and beyond. (shrink)

Although the fast-growing literature on restorative justice is extensive, and in some regards repetitive, there is still no consensus as to the nature and extent of applicability of the restorative notion. This article claims that the restorative movement is experiencing a tension between normative abolitionist and pragmatic visions of restorative justice. It proceeds to identify six conceptual fault-lines that characterize this tension. These do not only refer to various definitional positions, but also disagreements that negatively affect (...) both the theoretical and practical development of restorative justice. These tensions also encourage a power-interest battle between different stakeholders within the restorative movement including practitioners, theoreticians, researchers and policy makers. To approach these controversies, there needs to be an acknowledgment of the multidimensional nature of the conceptual problem of restorative justice and the impact it has on its application. The article attempts to get to grips with this problem, and provide a common ground for the future development of restorative justice. (shrink)

Our research describes the experiences, views, and attitudes of participants of mediation dialogue groups involving non-related traffic accidents regarding their participation and related topics, such as responsibility, rehabilitation, and restoration. In Belgium, the criminal law holds that victims and offenders need to be informed about the option of entering a restorative mediation process during criminal proceedings. Mediation is voluntary and provided by an independent state-funded organization. We collected the data through individual semi-structured in-depth interviews with participants of two mediation (...) dialogue groups. The data were analyzed through reflexive thematic analysis. We identified three main themes: (a) the importance of shared stories, (b) blurred boundaries, and (c) opportunities and obstacles for repair. Overall, our analysis suggests that mediation involving similar but non-related incidents may provide the participants with valuable knowledge and insights about one another's lives and thoughts and lead to mutual understanding and support. For some, it may even involve a transformative experience. Importantly, our analysis reveals that (a) the presence of a “shared story” and (b) a group dynamic in which participants feel sufficiently at ease with each other are pivotal to achieving a sense of connection and resonance that allows for such mutual understanding and support. These appear to be prerequisites for enabling any kind of healing. (shrink)

This book addresses one of the most controversial topics in restorative justice: its potential for resolving conflicts within families. It focuses on feminist and indigenous concerns in family violence that may warrant special caution in applying restorative justice. At the same time, it looks for ways of designing a place for restorative interventions that respond to these concerns.

Direct brain intervention based mental capacity restoration techniques-for instance, psycho-active drugs-are sometimes used in criminal cases to promote the aims of justice. For instance, they might be used to restore a person's competence to stand trial in order to assess the degree of their responsibility for what they did, or to restore their competence for punishment so that we can hold them responsible for it. Some also suggest that such interventions might be used for therapy or reform in criminal legal (...) contexts-i.e. to make non-responsible and irresponsible people more responsible. However, I argue that such interventions may at least sometimes fail to promote these responsibility-related legal aims. This is because responsibility hinges on other factors than just what mental capacities a person has-in particular, it also hinges on such things as authenticity, personal identity, and mental capacity ownership-and some ways of restoring mental capacity may adversely affect these other factors. Put one way, my claim is that what might suffice for the restoration of competence need not necessarily suffice for the restoration of responsibility, or, put another way, that although responsibility indeed tracks mental capacity it may not always track restored mental capacities. (shrink)

Punishment of offenders is one of the most universal features of human behavior. Across time and cultures it has been common for people to punish offenders, and one can easily find examples of punishment among ancient hunter-gatherers, in holy scriptures, in popular culture, and in contemporary courts of law. Punishment is not restricted to criminal offenders, but emerges within all spheres of our social life, including corporations, public institutions, traffic, sports matches, schools, parenting, and more. Punishment strongly influences what we (...) think, how we feel, and what we do. The Moral Punishment Instinct asserts that people possess a hard-wired tendency to aggress against those who violate the norms of their group. We have evolved this instinct because of its power to control behavior by curbing selfishness and free-riding, thereby providing incentives to stimulate the mutual cooperation that ancient hunter-gatherers needed in order to survive in challenging natural environments. In this book, Jan-Willem van Prooijen methodically describes how punishment originates from moral emotions, stimulates cooperation, and shapes the social life of human beings. Guided by a host of recognizable and relatable examples, this book illuminates how the moral punishment instinct manifests itself among a variety of modern human cultures, children, tribes of hunter-gatherers, and even non-human animals-all while accounting for the role of this instinct in religion, war, racial bias, restorative justice, gossip, torture, and radical terrorism. (shrink)

In Rights Forfeiture and Punishment, Christopher Heath Wellman argues that those who seek to defend the moral permissibility of punishment should shift their focus from general justifying aims to moral side constraints. On Wellman's view, punishment is permissible just in case the wrongdoer has forfeited her right against punishment.

Restorative justice conferences that operate as sentencing mechanisms involve the making of a trade-off between empowering lay participants to make their own decisions, and the requirements of consistency and proportionality, which are established principles of sentencing. In current restorative justice practice, this trade-off tends to be made more in favour of consistency and proportionality, at the expense of the empowerment of lay participants.Empowerment is central to key benefits of restorative justice, such as reducing recidivism and increasing victim (...) satisfaction. However, its importance to the effectiveness of restorative justice is not always properly acknowledged. In addition to this lack of acknowledgment, there are both conceptual and practical problems with the principles of consistency and proportionality (particularly in the way that they are presented when considered in relation to restorative justice) that are often overlooked. As a result, the tendency is for assumptions to be made about the necessary supremacy of these principles over empowerment. This paper urges more acknowledgement of the importance of empowerment in restorative justice, together with a greater appreciation of the problems with consistency and proportionality, with a view to challenging assumptions about the way that the trade-off must be made. (shrink)

Most proponents of restorative justice admit to the need to find a well defined place for the use of traditional trial and punishment alongside restorative justice processes. Concrete answers have, however, been wanting more often than not. John Braithwaite is arguably the one who has come the closest, and here I systematically reconstruct and critically discuss the rules or principles suggested by him for referring cases back and forth between restorative justice and traditional trial and punishment. I (...) show that we should be sceptical about at least some of the answers provided by Braithwaite, and, thus, that the necessary use of traditional punishment continues to pose a serious challenge to restorative justice, even at its current theoretical best. (shrink)

This paper aims to relax the tension between the political requirements of making peace and the moral demands of doing justice, in light of the peace processes in South Africa and Northern Ireland. It begins by arguing that criminal justice should be reconceived as consisting primarily in the vindication of victims, both direct and indirect. This is not to deny the retributive punishment of perpetrators any role at all, only to insist that it be largely subservient to the goal of (...) vindication. Why should we take such an account of justice to be true? The paper offers two reasons. First, Christians – and even secularist liberals – have a prima facie reason in the consonance of this account with the Bible's eudaimonistic conception of justice as ordered to the restoration of healthy community. Second, since all concepts of criminal justice share the basic notion of putting right what is wrong, it would be odd if the repair of damage done to victims (i.e., their vindication) were not prominent among its concerns; and there are reasons to suppose that this vindication should actually predominate in relation to the other principles of justice (the retributive balancing of crime and punishment, and the reform of the criminal for his own sake). In its final sections, the paper applies the proposed conception of criminal justice to the peace processes in South Africa and Northern Ireland, and concludes that in both cases, notwithstanding concessions to the politics of peace-making, considerable justice has been done. (shrink)

It has frequently been argued that the post-apartheid Truth and Reconciliation Commission (TRC) was committed to restorative justice (RJ), and that RJ has deep historical roots in African indigenous cultures by virtue of its congruence both with ubuntu and with African indigenous justice systems (AIJS). In this article, I look into the question of what RJ is. I also present the finding that the term ‘restorative justice’ appears only in transcripts of three public TRC hearings, and (...) the hypothesis that the TRC first really began to take notice of the term ‘restorative justice’ after April 1997, when the South African Law Commission published an Issue Paper dealing with RJ. Furthermore, I show that neither the connection between RJ and ubuntu nor the connection between RJ and AIJS is as straightforward and unproblematic as often assumed. (shrink)

Few defences of retribution in criminal justice make a plausible case for the view that punishment plays a necessary role in restoring relations between offenders, victims and the community. Even fewer defences of retribution make a plausible appeal to the interpersonal practice of apologizing as a symbolically adequate model for criminal justice. This review article considers Christopher Bennett’s engaging defence of an apology ritual in criminal justice, an account of justifiable punishment that draws from the best of retributive and (...) class='Hi'>restorative justice theory. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Compassionate Justice: An Interdisciplinary Dialogue with Two Gospel Parables on Law, Crime, and Restorative Justice by Christopher D. MarshallGlen StassenCompassionate Justice: An Interdisciplinary Dialogue with Two Gospel Parables on Law, Crime, and Restorative Justice CHRISTOPHER D. MARSHALL Eugene, OR: Cascade Books, 2012. 386 pp. $33.60Christopher Marshall is known to Society of Christian Ethics members for his highly acclaimed book on restorative justice, Beyond Retribution, and (...) for his plenary address at the SCE annual meeting published in the JSCE 27, no. 2 (2007). The plenary address forms one chapter of the present Compassionate Justice. Well [End Page 221] informed on ethics, criminal justice, and human rights, Marshall is a New Testament scholar at Victoria University in New Zealand.Marshall points out that the two best-known of Jesus’s parables—the Compassionate Samaritan, and the Prodigal Son—have been the most influential of Jesus’s parables in Western culture and legal theory. The Compassionate Samaritan is Jesus’s response to a lawyer’s question that answers a central legal question of the time: Who is my neighbor, whom I am obligated by Leviticus 19:7 to love as myself? In the Prodigal Son, the three main characters in legal offense are clearly portrayed as the offender, the victim, and the law-abiding community; in turn, as Marshall points out, “the older brother’s reaction centers directly on the justice of his father’s actions” (192–93). Marshall argues that present legal theory can learn from careful dialogue with these two parables. These parables are not only historically influential but also so insightfully and beautifully crafted that dialogue with them can bring incisive insights. In addition, dialogue with them presses Anglo-Saxon liberalism where it is weak and needs to grow.The parable of the Compassionate Samaritan opens up questions about the need for Good Samaritan laws that defend persons who come to the aid of a person in danger of death (e.g., from an accident, fire, or drowning) against liability for inadvertently and unintentionally causing damage. Under present Anglo-Saxon law, such good Samaritans can be sued for damages. This is not the case, however, in most European countries. Similarly, most European and Latin American countries have bad Samaritan laws: Where “victims are in mortal danger and unable to save themselves,” there is a legal duty for “those who are consciously aware of the victim’s predicament, who are close enough to intervene, and who have the effective means of intervention available to them” to come to the aid of the victims. “The most glaring exception to this pattern,” Marshall argues, “occurs in Anglo-American legal systems” because of liberalism’s maximization of individual liberty even against coercion to come to the aid of persons who would die if no help arrives (155). Samaritan laws “give formal expression to the supreme value of human life, to the bonds of solidarity and empathy that comprise human identity and that bind people together in social community, and to ongoing need human beings have to be committed to one another’s rescue and restoration when severe harm befalls them” (174).Responding to the parable of the Prodigal Son, Marshall argues that both compassion and repentance are crucial for understanding the humanity and the sufferings of persons being defended or judged by law. This does not replace the standard tools of legal interpretation; it takes account of the more holistic context (288–90). In fact, “unreflective compassion can be dangerous and distorting” (296). Marshall discusses the complications insightfully and in a balanced [End Page 222] way. He concludes with an extensive discussion and refutation of perhaps the most important book-length criticism of restorative justice.Marshall’s interpretation of these two parables surpasses any other that I have read. His sensitive and thoughtful analysis of the experience of victimization goes beyond any other interpretation of the Compassionate Samaritan that I have seen. In this he resembles Daniel Philpott’s interpretation of victimization in Just and Unjust Peace (Oxford University Press, 2012). His description of the shameful rupture of relationship with father, family, and community by the prodigal son goes well beyond what I have seen previously. I think... (shrink)

This essay argues that Charles Mills’s normative vision for racial justice—a reformed, race-attentive liberalism—is fundamentally self-undermining because it embraces the liberal property form. Specifically, I show how Mills’s insistence on the practical utility of the property form for racial justice ignores both W.E.B. Du Bois’s signal warning about the reactionary power of propertied interests and how the hegemony of Lockean liberalism is a key mediator of racial/colonial domination in the United States. The essay first shows how Mills’s anti-racist, social democratic (...) liberalism relies on and legitimizes a property rights framework. I then analyze Du Bois’s critique of liberal abolition-democracy during Reconstruction, surfacing how white propertied interests constantly threaten progressive gains and social democratic change. Building on Du Bois, I argue that Mills’s reformed liberalism, by preserving the property form, places racial justice on an inherently unstable foundation while also excluding struggles for Indigenous sovereignty. Finally, I question Mills’s pragmatic argument for restricting racial justice to a reformed liberalism. Mills’s “Black radical liberalism” is not as straightforwardly practical as he suggests because of the deep historical hold of Lockean, rather than Kantian, liberalism. Here, I excavate how hegemony around Lockean liberalism in the United States has been periodically reconsolidated, looking at the interwar and Cold War context as well as the deeper influence of Locke on US constitutionalism. Ultimately, against a politics that restricts racial justice to a social democratic horizon, I contend that it is necessary to challenge the liberal property form in the pursuit of racial justice and Indigenous sovereignty. (shrink)

This paper seeks to analyse the contribution of a human rights perspective to emancipatory social work. Human rights practice builds on long-standing values and theoretical frameworks related to emancipatory, radical and structural social work and anti-oppressive practice. However, historical tensions within social work, notably in the United Kingdom, continue in contemporary forms, magnified by the global impact of neo-liberalism. The paper considers connections between human rights and other frameworks, including professional codes; ethical critiques drawing on feminist and indigenous perspectives; (...) the articulation of human rights with social justice; and the strength of a rights-based approach demonstrated by community campaigns and service-user movements. It also addresses discontinuities between human rights and trends in social work and the wider context, including managerialism, privatization, and the consumerization of rights; unexamined rhetoric and limited regulatory interpretations; the dangers of rights being interpreted and imposed from dominant and/or Western perspectives; and the complexities of universal versus culturally specific rights claims. Drawing on the struggles of oppressed groups, the paper argues that a more critical and informed focus on human rights can be a further potentially powerful tool contributing to resistance to oppression, collective solidarity and the promotion of emancipatory change. (shrink)

Struggles over precious resources such as oil, water, and land are increasingly evident in the contemporary world. States, indigenous groups, and corporations vie to control access to those resources, and the benefits they provide. These conflicts are rapidly spilling over into new arenas, such as the deep oceans and the Polar regions. How should these precious resources be governed, and how should the benefits and burdens they generate be shared? Justice and Natural Resources provides a systematic theory of natural (...) resource justice. It argues that we should use the benefits and burdens flowing from these resources to promote greater equality across the world, and share governance over many important resources. At the same time, the book takes seriously the ways in which particular resources can matter in peoples lives. It provides invaluable guidance on a series of pressing issues, including the scope of state resource rights, the claims of indigenous communities, rights over ocean resources, the burdens of conservation, and the challenges of climate change and transnational resource governance. It will be required reading for anyone interested in natural resource governance, climate politics, and global justice. (shrink)

Strong reciprocity theorists claim that punishment has evolved to promote the good of the group and to deter cheating. By contrast, weak reciprocity suggests that punishment aims to restore justice (i.e., reciprocity) between the criminal and his victim. Experimental evidences as well as field observations suggest that humans punish criminals to restore fairness rather than to support group cooperation.

Criminal justice policy faces the twin challenges of improving our crime reduction efforts while increasing public confidence. These challenges are exacerbated by the fact that at least some measur...

This paper argues for proleptic restorative justice in the area of the environment in the form of a ‘human trust’. Drawing inspiration from the Roman public trust, the human trust insists that some ‘goods’ are so important that they can neither be owned nor spoiled; rather, they must be protected. In order to explain this model, water rights will be used as an example, specifically, the case of Plachimada’s battle with Coca-Cola over the use of local ground water in (...) Kerala, India. This case allows consideration of the protection of water for people, the ongoing privatization of natural resources, and the strength of property rights. The human trust questions the merit of seeing the environment as property or in economic terms. Moreover, the human trust urges proleptic restorative justice, as in the case of the environment, restoration after the fact is often impossible. The potential harm is so extreme that one can argue for an action in tort of ‘anticipatory negligence’, a development of the quia timet injunction. (shrink)

This paper argues that land and resource rights are often essential in overcoming colonial inequality and devaluation of indigenous populations and cultures. It thereby criticizes global welfare egalitarians that promote the abolition of national sovereignty over resources in the name of increased equality. The paper discusses two ways in which land and resource rights contribute to decolonization and the eradication of the associated inequality. First, it proposes that land and resource rights have acquired a status-conferring function for colonized (...) peoples so that possession of full personhood and relational equality is partially expressed through the possession of land and resource rights. Second, it suggests that successful internal decolonization depends on access to and control over land and resources, especially for indigenous peoples. (shrink)

Restorative justice, with its most prominent characteristic being rebuilding social relationships among victims, perpetrators and the community that was damaged by a crime, has been proposed as an alternative to the traditional retributive justice model to treat criminal acts. Both secular and religious groundings exist for restorative justice, and religious theorists have developed theological groundings for restorative justice based on scripture and other sources. In this article, I will explore how a theologically grounded restorative justice model, (...) focusing on Christopher Marshall’s theological exposition of restorative justice, can contribute to the thought and action of Christians and the larger public in the face of the moral injury caused by human trafficking. I will address how this model can also contribute to social structural change. In my analysis, I will employ a case study of North Korean stateless women who reside in China and who are victims of human trafficking. (shrink)