Abstract: Forgiveness of wrongdoing in response to public apology and amends making seems, on the face of it, to leave little room for the continued commemoration of wrongdoing. This rests on a misunderstanding of forgiveness, however, and we can explain why there need be no incompatibility between them. To do this, I emphasize the role of what I call nonangry negative moral emotions in constituting memories of wrongdoing. Memories so constituted can persist after forgiveness and have important moral functions, and (...) commemorations can elicit these emotions to preserve memories of this sort. Moreover, commemorations can be a restorativejustice practice that promotes reconciliation, but only on condition that the memories they preserve are constituted by nonangry negative, not retributive, emotions. (shrink)
In the latter half of the twentieth century, there has been a sharp decline in confidence in sentencing principles, due to a questioning of the efficacy of punishment. It has been very difficult to develop consistent, fair, and humane criteria for evaluating legislative, judicial and correctional advancements. The Practice of Punishment offers a comprehensive study of punishment that identifies the principles of sentencing and corrections on which modern correctional systems should be built. The theory of punishment that emerges is built (...) on the view that the central function of the law is to reduce the need to use force in the resolutions of disputes. In this text, Wesley Cragg argues that the proper role of sentencing and sentence administration, as well as policing and adjudication, is to sustain public confidence in the capacity of the law to fulfill that function. Cragg believes that sentencing and corrections should be guided by principles of restorativejustice, and he contends that inflicting punishment is in itself not a legitimate objective of criminal law. The Practice of Punishment is a philosophical account of punishment, sentencing, and correction which draws strongly on first-hand experience of penal practices, diverse recent studies, government reports, position papers, crime surveys, and victim concerns. It will be of special interest to applied ethicists, those concerned with the theory and practice of punishment and policing, and criminal justice scholars and lawyers. (shrink)
The doctrine of proportionality seeks to limit arbitrary and capricious punishment in order to ensure that offenders are punished according to their âjust desertâ. In Australian sentencing law, proportionality goes some way toward achieving this âbalancedâ 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 restorativejustice 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)
Most proponents of restorativejustice admit to the need to find a well defined place for the use of traditional trial and punishment alongside restorativejustice 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 restorativejustice 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 restorativejustice, even at its current theoretical best. (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 restorativejustice: a brief examination 21 -- Some limitations of restorativejustice 25 -- Some dangers of restorativejustice 29 -- Debunking restorativejustice 32 -- 3 Reviving restorativejustice 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 restorativejustice traditions? 49 -- Conclusion: did restorativejustice 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 -- Restorativejustice 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 -- Restorativejustice as an alternative to retributive justice 88 -- Restorativejustice as an alternative to treatment 94 -- The goals and methods of restorativejustice 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 restorativejustice process 140 -- Achieving restorative goals 141 -- Moral development and the strengthening of community 144 -- The role of community 151 -- 8 The future of restorativejustice 161 -- Introduction 161 -- Implementing restorativejustice: the paths less likely 163 -- The implementation of restorative techniques 166 -- Restorativejustice and the pattern of penal control 169 -- The future of restorativejustice research 170 -- Appendix to chapter 3: the theological roots of judicial -- punishment 172. (shrink)
This paper argues for proleptic restorativejustice 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 restorativejustice, 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)
In this article, I examine the relevance and desirability of shame and guilt to restorativejustice conferences. I argue that a careful study of the psychology of shame and guilt reveals that both emotions possess traits that can be desirable and traits that can be undesirable for restoration. More in particular, having presented the aims of restorativejustice, the importance of face-to-face conferences in reaching these aims, the emotional dynamics that take place within such conferences, and (...) the relevant parts of the empirical psychology of shame and guilt, I argue that restorativejustice practitioners have to take account of a rather more complex picture than it had hitherto been thought. Restorative conferences are not simply about "shame management," though practitioners must certainly avoid shaming and humiliation. Given the nature of shame, guilt, and restorative conferences, it is not possible to provide a single concrete precept applicable to all restorative conferences. The successful holding of conferences depends in large part on the cultural and situational specificities at hand. The latter include among others knowledge of the perceived relations standing between victim and offender as well as the affective specificities of the individuals involved. (shrink)
This study investigates the educative process in restorativejustice reforms, revealing three characteristics effective in facilitating moral learning for the common good. These three characteristics can be formulated as principles to guide the theory and practice of communitybased moral education. First, restorativejustice brings the moral authority in personal communal traditions and the moral authority in impersonal universal norms together in a mutually reinforcing combination. Secondly, restorativejustice processes focus on the "space between places" (...) in social relations-not on individuals or families or particular institutions, but on the space where these important social bodies intersect. Thirdly, restorativejustice harnesses the resources of whole communities to take the actions and make the changes that can successfully address the problems that emerge as crime, rather than continuing the criminal justice system's focus on individual offenders or individual victims. These characteristics can be translated into three educational principles to guide the theory and practice of community-based moral education: (a) the complementarity between communal and universal moral norms; (b) the locus of moral education at the intersection between multiple levels of social experience; and (c) community development as a model of moral development. (shrink)
It has frequently been argued that the post-apartheid Truth and Reconciliation Commission (TRC) was committed to restorativejustice (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 ‘restorativejustice’ appears only in transcripts of three public TRC hearings, (...) and the hypothesis that the TRC first really began to take notice of the term ‘restorativejustice’ 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)
This article takes restorativejustice as an example of an initiative that crosses disciplinary boundaries, and that has been usefully applied within educational contexts. Grounded in criminology, restorativejustice also has roots in psychology, education, sociology, peace studies, philosophy and law. The article draws on an ESRC funded seminar series which investigated interdisciplinary perspectives on restorativejustice and their applicability to education. The series found that the ways in which restorativejustice is (...) conceptualised and applied varies according to disciplinary norms and assumptions. It is this creative tension that the current article explores. (shrink)
In the field of Conflict Transformation, RestorativeJustice (RJ) is often perceived as a transformative process focused on healing relationships after a specific harm. The parties considered in a RJ setting are those harmed, those responsible and the community impacted. This is particularly true in the field of criminal and transitional justice, and in an extended and spiritual view, there is reconciliation with the parties and God. Despite cultural differences, RJ theory and concepts have been accepted favorably (...) in the many countries. From a viewpoint focused on methodology and process, however, cultural differences have a significant effect for implementation. For example, important concepts such as control, choice, harm, responsibility, apology, shame, reconciliation and forgiveness vary greatly in the manner in which they are perceived from culture to culture and may create obstacles for successful implementation of a successful process when one culture’s process and definitions are forced upon another. Therefore, promotional factors (i.e., culture and religion) and the implication of semiotics (cultural definition or meaning) are an absolute consideration in developing a RJ process within a particular culture. This paper discusses the cultural differences between the United States and Japan with regard to semiotic obstacles in the implementation of a RJ model in the Japanese criminal justice system. While the exploration of cultural differences, particularly between the United States and Japan is not new and has been the focus of many disciplines, little has been considered regarding the assimilation and implementation of a Western RJ model into the Eastern culture of Japan. In sum, is an attempt to clarify and integrate the effects of cultural differences for some factors (i.e., Control/Choice, Harm, Apology, Responsibility, Shame, Forgiveness, and Reconciliation) as they apply to a RJ based reconciliation process focused in Semiotics, Social psychology and the Sociology of law as they apply to the United States and Japan. (shrink)
At the center of this paper are three questions: in the absence of a religious worldview, can one gain access to the concepts of forgiveness and reconciliation, can reconciliation be achieved in the absence of forgiveness or does the former depend in some way upon the latter, and can we make sense of a restorative approach to justice in the absence of either forgiveness or reconciliation? To answer these questions, I look closely at the concept of forgiveness in (...) the first section of this article with the goals of disentangling it from its religious undertones and emphasizing its importance to the very concept of restorativejustice. Drawing on both theoretical work and practical examples, I argue that forgiveness is not necessarily a religious concept ? contrary to common perception ? and that, contra Zehr, it is a foundational component of restorativejustice. Having considered this first problem, I turn ? in the second section ? to a discussion of the concept of reconciliation, arguing that personal and political reconciliation must be separated from one another and from the concept of forgiveness. Ultimately, I conclude that forgiveness and reconciliation are quite different concepts, that the latter relies on the former, and that the latter is a goal rather than a necessary component of restorativejustice. Drawing largely on the work of Hannah Arendt, Susan Dwyer, Trudy Govier, and Howard Zehr, as well as discussions with members of Murder Victims? Families for Reconciliation, I argue that political reconciliation between groups can be achieved in the absence of personal reconciliation between individual victims and perpetrators in those groups. Further, I demonstrate that restorative practices open up the possibility of both types of reconciliation, but that they are ultimately founded only on the principle of forgiveness. (shrink)
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 restorativejustice 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)
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 restorativejustice theory. (shrink)
Christopher Bennett presents a theory of punishment grounded in the practice of apology, and in particular in reactions such as feeling sorry and making amends. He argues that offenders have a 'right to be punished' - that it is part of taking an offender seriously as a member of a normatively demanding relationship (such as friendship or collegiality or citizenship) that she is subject to retributive attitudes when she violates the demands of that relationship. However, while he claims that punishment (...) and the retributive attitudes are the necessary expression of moral condemnation, his account of these reactions has more in common with restorativejustice than traditional retributivism. He argues that the most appropriate way to react to crime is to require the offender to make proportionate amends. His book is a rich and original contribution to the debate over punishment and restorativejustice. (shrink)
This essay explores how the doctrine of the Resurrection informs theological reflection on reconciliation in post-Apartheid South Africa. It begins by establishing the fragile and liminal state of reconciliation, despite the efforts of the Truth and Reconciliation Commission. It then argues that the Resurrection offers an ecstatic and relational understanding of the human, which in turn provides a basis for advancing claims regarding human dignity and well-being. In conversation with the work of Oliver O'Donovan and James Alison on the Resurrection, (...) this view is further contextualized by incorporating insights from ubuntu and from the work of Judith Butler on grieving. The essay closes with proposals for how the church in post-Apartheid South Africa can give witness to the Resurrection in its immediate life and work through advocacy and carrying on the politics of grieving. (shrink)
An ethic for wrongdoers -- Repaying moral debts : self-punishment and restitution -- Changing one's heart, changing the past : repentance and moral transformation -- Reforming relationships : the reconciliation theory of atonement -- Forgiveness, self-forgiveness, and redemption -- Making amends for crime : an evaluation of restorativejustice -- Collective atonement : making amends to the Magdalen penitents.
The punishment of criminals is a topic of long-standing philosophical interest since the ancient Greeks. This interest has focused on several considerations, including the justification of punishment, who should be permitted to punish, and how we might best set punishments for crimes. This entry focuses on the most important contributions in this field. The focus will be on specific theoretical approaches to punishment including both traditional theories of punishment (retributivism, deterrence, rehabilitation) and more contemporary alternatives (expressivism, restorativejustice, (...) hybrid theories, unified theories) with an additional section on capital punishment, perhaps the particular form of punishment that has received the most sustained philosophical attention. These theories of punishment address two important questions: first, who should be permitted to punish and, secondly, who should be permitted to be punished. These questions then concern the justification of punishment and its distribution. While the majority today often identifies their theories as retributivist, there is a great diversity of theories defended. This entry will highlight the leading work for each view. (shrink)
Henri Lefebvre speaks of space as a social product. Spatially, law operates as a social product when considering sites of imprisonment. Call them prisons, jails, or correctional facilities, people who violate the law go to these places for purposes of confinement, punishment, rehabilitation. However, with decades of increasing rates of incarceration, we can see that these places fail both the jailed and the external society to which they will return. Through overcrowding, exploitative private companies, and defunded social services, these places (...) continue to cause injustice as spaces in which the social product of rehabilitation is often lacking. However, on the Island of Hawai‘i, there is an alternative. In Hilo, the community-based organization ‘Ohana Ho‘opakele’ seeks to provide a Hawaiian holistic approach that will serve as an alternative to incarceration. Through wellness centers (pu‘uhonua) and the practice of traditional ho’oponopono (indigenous conflict resolution), this group advocates for a spatially-oriented rehabilitative approach to restorativejustice. A central feature is the land upon which the program will be situated and its organization as a self-supported ahupua‘a. This indigenous land division contains diverse and sustainable resources where the participants will be connected to Hawaiian culture and practices central to the concept of wellness for the person and the community. The group’s vision for this program is far-reaching as it will serve as a model for justice in the Restored Hawaiian Kingdom. In this paper, we will explore the vision of ‘Ohana Ho‘opakele against the backdrop of a politically westernized legislative-based response to the diasporic urgency of Hawaii’s incarcerated. (shrink)
Focusing on contemporary social issues-- the environmental crisis, population growth and demographic change, and the question of whether reparations are owed to indigenous peoples--this study presents a theory of intergenerational justice that gives citizens duties to past and future generations, and explains what relationships between contemporary generations count as fair.
This essay asks if there is a role for an active public in ratcheting down the harsh politics of crime control in the United States and the United Kingdom that has led to increased use of the criminal law and greater severity in punishment. It considers two opposing answers offered by political and legal theorists and then begins to develop a participatory democratic framework for institutional reform.