Restorative justice is a developing concept. People’s understanding of what it is
has changed over time, and that will probably continue
as more is learned about
its potential and risks, and as it is applied to new contexts. It is concept that seems
easy to understand but hard to define with precision. In that sense, it is like other
familiar terms such as “democracy” and even “justice.”
Although some observers emphasize the differences between the core principles
of restorative justice and those of the conventional criminal justice system, others
argue that the two approaches are
complementary and compatible, incorporating
elements of retribution, rehabilitation as well as more unique elements.
Over time several different conceptions, or ideas about what restorative justice is,
have emerged. All agree that crime causes harm and creates needs and that justice
should work to repair that harm and address the needs. They also agree that the
harms and needs come in different forms: material,
emotional, social, relational,
physical and so forth. However, they differ in terms of emphasis. It is useful to be
aware of the differences to avoid becoming confused by conflicting and some-
times opposing ideas.
One understanding is what has been called the
encounter conception.
69
This
focuses on the unique feature of restorative justice, which is the parties meeting
together to discuss the crime, its aftermath and
what should be done to make
things right. These are what the United Nations
Basic Principles on the Use of
Restorative Justice Programmes in Criminal Matters and this handbook refer to as
restorative processes. Persons who work within this conception may suggest that
103
Annex III
Controversies and
disagreements on the
essential characteristics
of
a restorative justice
programme
69
These are taken from Johnson, G. and D. Van Ness (2006). The Meaning of Restorative Justice,
in Johnson, G. and Van Ness, D. (Eds.)
The Handbook on Restorative Justice. Cullompton: Willan
Publishing.
104
restorative processes be used even when there has not been a crime, such as when
neighbours have a conflict or a family needs to solve a problem.
A second
idea has been called the reparative conception. This focuses on the need
to repair the harm resulting from crime. People who work within this conception
agree that this is best done in a restorative process, but they are willing to find
other ways to repair that harm even if there is no restorative process (for example,
if the offender is never caught or the victim is unwilling to participate).
The third idea has been called the
transformative conception. This is the broadest
perspective of all: it not only embraces restorative processes and steps to repair
the harm, but it also focuses attention on structural and individual injustice. It
does the former by identifying and attempting to
resolve underlying causes of
crime (poverty, idleness, etc.). However, it also challenges individuals to apply
restorative justice principles to the way they relate to those around them and to
their environment. This can generate a kind of internal spiritual transformation
even as it calls for external societal transformation.
Each of these conceptions agrees about the need for and value of restorative
processes, but each also includes features that other conceptions may not accept
as restorative. Examples of these include court-ordered restitution or community
service, using restorative processes to
solve a neighbourhood dispute, providing
support and assistance to victims, and working for social justice.
There are other controversies within the restorative justice field:
1.
Is there a role for punishment in restorative justice? Some argue that
there is not because the purpose of restorative justice is to repair harm,
not to cause more harm. Others, while agreeing with that point, believe
that restorative processes and outcomes have many of the features of
punishment, such as denouncing behaviour that violates society’s norms
and having to pay a price for having done so.
2.
Are victim support services and offender
reintegration programmes
restorative justice? If those do not involve a restorative process, those
who have an encounter conception would say that while those are valuable
and important services, they are not restorative justice. Those who work
within the other two conceptions would be more likely to say that they
are indeed restorative.
3.
What happens if a victim or offender is not willing or able to participate
in a restorative process? There are a variety of ways that a party might
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