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Theory Articles -- Full List

Articles discussing theoretical issues related to restorative justice.

. More than words: Restorative justice concepts in transitional justice settings.
Th is article considers the applicability of restorative justice literature in the transitional justice arena. Th e authors argue that while restorative justice is applied to a wide range of confl icts, the established literature is often of limited value within a transitional context. Insuffi cient attention is often paid to the inherent diffi culties in importing theories, concepts and practices designed for the context of ‘settled’ societies into post-confl ict environments. Signifi cantly more consideration needs to be given to the practical operation of transitional justice mechanisms, as well as their underlying normative bases, so that they might live up to the claims of many commentators that transitional justice is ‘restorative’. (author's abstract)
. More words on words.
My response to Christie’s words is ‘more words’, with these points. First, ‘conflicts’, as a term, does not sufficiently encompass all that occurs in human society when individuals, groups and organisational entities seek to hurt, degrade and destroy others. We should retain the idea of wrongs and, with it, penal law as one mechanism of response, although not the sole mechanism. Second, I agree with Christie that the term ‘restorative justice’ should be replaced, but not for the reasons he gives. I propose the term ‘innovative justice’, which includes a variety of justice mechanisms—administrative, civil, penal, and those in civil society—to address wrongs. Third, I agree that reconciliation between parties ‘in conflict’ or having been wronged should not be expected; this and related ideas, such as forgiveness and apology, are hoped-for outcomes of justice processes by some advocates, but they are better seen as gifts, unexpected and without anticipation of reciprocity. Fourth, ‘offender’ and ‘victim’ are problematic terms, but I do not know how they can be easily replaced. The problem, in part, is the limits of (the English) language; and in part, finding one word to convey a temporally specific status of a person or organisational entity. Fifth, punishment has many meanings, and it is a distasteful term to many; but it is an evolving concept and cannot be willed away. (excerpt)
. Policy conflict: Women's groups and institutionalized restorative justice.
The Nova Scotia Restorative Justice (NSRJ) program is a province wide, systemic juvenile restorative justice program in Nova Scotia. This program offers restorative justice intervention, at varying points in the criminal justice process, for all crimes except sexual assault and intimate partner violence. This study, a case study of the policy process, reveals that this exception is not based on restorative justice (RJ) theory but instead reflects local political struggles. This case reminds policy makers that they must consider local context and stakeholders when crafting RJ programming. (author's abstract)
. Problem-solving courts: An annotated bibliography.
As the number of problem-solving courts in this country prolferate,' the scholarship regarding such courts bourgeons as well. This annotated bibliography serves three purposes: (1) it provides the reader with a startingp oint and ready reference guide for accessing the research on problem-solving courts generally; (2) it positions drug courts and mental health courts amid the broader array of existing problem-solving courts; and (3) it provides concrete examples of the operation of such courts. It, finally, supplements the footnote citations of the three new voices featured in this symposium edition.(author's abstract)
. Reparations and reconciliation in East Asia as a hot issue of tort law in the 21st century: Case studies, legal issues, and theoretical framework.
Reparations and reconciliation issues have been still marginalized in tort law in spite of their pragmatic and theoretical importance in East Asian legal scholarship. On the other hand, there are already many reparations lawsuits, especially relating to Japanese invasion and colonization, on forced slave labor, comfort women, massacres in China. In this article, first, we'll deal with why these legal cases have been unsuccessful so far in Japan, and the ways to overcome legal obstacles. Second, we will discuss the mechanisms of reparation and its goal: reconciliation and changes in international and racial relationship. The important role of an apology, comparison of legal and moral reparations and the related issues will also be considered. (author's abstract)
. Restoration through dialogue: A study of the transformative effects of organised dialogues on justice and the community.
People make up communities. Communities make up nations. If restorative processes are capable of transforming people then they must also be capable of transforming communities and nations. There are many definitions of restorative practice but the unifying denominator is essentially that a dialogue occurs. Scripted and facilitated restorative dialogue aside for a moment, I ask does dialogue have transformative qualities in its own right and if so, to what extent? How deep are the transformations? Do personal transformations impact the community? Can such transformations through dialogue impact on justice as well? In researching this hypothesis, in-depth interviews were conducted with delegates of the unique Organised Dialogues conducted between July 2009 and July 2012. The astonishing findings that transformation is occurring on multiple levels as a direct result of engaging in true dialogue reveals areas of insight and poses questions of great significance for peace negotiators, government ministers, organisational theorists, change managers, community builders and conflict resolvers, in fact all who inhabit the landscape of transformation. (author's abstract)
. Restorative Boards of Inquiry: Fostering dignity and respectful, responsible relationships. Draft framework and procedures.
Relationships in conflict sometimes result in allegations of discrimination, triggering a complaint under the Nova Scotia Human Right Act. 1 This complaint creates an opportunity to address individual conflicts and to examine a) the larger societal influences on the conflict and b) how these influences impact the systems we set up to relate to each other. The restorative board of inquiry model, outlined here, seeks to foster respectful, equal, 2 and responsible relationships as it addresses complaints. These objectives are met by parties involved being empowered to work collaboratively. Some of the benefits of the restorative approach are: emotional closure, the process creates reduced conflict between the parties thereby lessening harms throughout the process of resolving the complaint, a better opportunity to have the other party meaningfully understand one’s harm, a greater possibility of the other party meaningfully taking responsibility for the harm, as appropriate. A restorative board of inquiry necessarily considers the public interest by its inclusion of community members in participation circles and the inquiry. (excerpt)
. Restorative encounters in terrorist victimization in Spain: Theoretical reflections and practical insights from social work.
After the ceasefire announcement by the terrorist organization ETA in 2011, new horizons and scenarios of peace have opened in the Basque Country, a land that has been badly hurt by violence over several decades. Restorative justice, a new paradigm for an old kind of justice, the reparation of the harm caused to victims and their consequent importance in the judicial process, has been knocking at our door for a long time. Since the beginning of this decade, following European trends, our country has begun to implement restorative justice at different levels. This article wants to bring the reader closer to understanding of the possibilities which restorative justice offers to the victims of terrorism. We describe the central elements of the restorative encounters held between ex-members of ETA and direct or indirect victims. Furthermore, we support our restorative intervention with theoretical arguments and practical examples from social work. (author's abstract)
. Restorative justice and victimology. Euro-Africa experiences.
The aims of this study are two fold: to contribute original evidence to international debate on victims' participation in restorative justice, and to contribute 'Afrocentric' knowledge to international literature and body of knowledge in restorative justice and victimology. The research considers the fundamental understanding of 'restorative justice' including the philosophical arguments in support of and/or against restorative justice model world wide. Consideration was also given to the evaluation of the historical development and evolution of this concept and the fundamental principles that have led to its popularity in recent times. The theoretical justifications for restorative justice initiative are highlighted. Anecdotal and empirical evidences in support of the practice methods, and victims' experiences of restorative justice around the world were also reviewed. (excerpt)
. Restorative justice in Ireland -- The theory, the experience, and the potential.
This paper explores the understanding of Restorative Justice (RJ) in the modern Irish criminal justice system. It will seek to define restorative justice, examine its prevalence in Ireland and the practical impact that restorative justice projects have on the communities in which they are situate. It further considers the potential for restorative justice in the mainstream criminal justice system and concludes by offering suggestions as to how restorative justice might be incorporated and developed to the benefit of communities.
. Restorative justice in schools: The influence of race on restorative discipline.
Schools today are more frequently using punitive discipline practices to control student behavior, despite the greater effectiveness of community-building techniques on compliance that are based on restorative justice principles found in the criminal justice system. Prior research testing the racial threat hypothesis has found that the racial composition of schools is associated with the use of more punitive and less reparative approaches to discipline, just as it has been associated with criminal justice harshness. However, no research to date has assessed the possibility that school-level racial composition may affect the likelihood that specific restorative justice techniques, which are the most commonly used alternative, will be implemented. This study is the first to test the racial threat perspective in relation to use of the restorative practices student conferences, peer mediation, restitution, and community service. Using a national random sample in logistic regression analyses, we find that schools with proportionally more Black students are less likely to use such techniques when responding to student behavior. This finding has several troubling implications for minority students in particular and for education as a whole. (author's abstract)
. Restorative justice, offender rehabilitation and desistance.
This paper examines the conceptual distinctions between rehabilitation, restorative justice and desistance theories of offender cessation from crime. In this discussion, the overarching aim is to consider the place and utility of a restorative model as a recidivism reduction tool, while explaining the notional differences between ethical normative, prudential normative, and social normative models of restorative justice, rehabilitation and desistance respectively. (author's abstract)
. Restoring human trafficking victims through victim-offender dialogue.
The criminal justice system focuses on punishing criminals for their wrongs, which often results in the victims of those crimes believing their needs have been unattended to or ignored. Because this traditional view of the justice system is offender-focused, it has resulted in more harm to victims, to their families, and to communities. A progressive theory that attends to the needs of victimsinstead of focusing solely on the offender that is gaining popularity in North America and Europe is called “restorative justice.” Restorative justice focuses on responding to and understanding the victims well as those affected by the crime, rather than focusing solely on the offender. One form of restorative justice is Victim-Offender Dialogue (VOD), which involves direct dialogue between the victim and the offender with one or more facilitators present as they discuss the crime committed. This Note will focus on the use of VOD as an option for “victims” of human trafficking who wish to have a dialogue with their trafficker or “offender.” (excerpt)
. Ten responses to "Words on words."
Properly conceived, justice is a holistic concept that includes procedural justice, distributive justice, social justice, and restorative justice, alongside last resort to punitive justice. That said, all the Christie arguments in favour of reconciliation as an alternative seem good arguments. We might also note here the greater embrace in United Nations discourse of ‘reconciliation’ than of ‘restorative justice’, though both are increasingly well received. On the other hand, in international law discourse, reconciliation tends to be separated from truth and justice, where justice is narrowly thought to mean punishing people through criminal trials. Consistent with the Christie concerns, retributivists are winning against restorativists in the battle for the soul of ‘transitional justice.' (Excerpt)
. The TJ mainstreaming project: An evaluation of the Israeli Youth Act.
This Article is a product of the mainstreaming project, which will enhance the project's international reach by examining Israeli law. Specifically, this Article will evaluate the legal landscape of youth justice legislation in Israel to see whether TJ can be mainstreamed and thrive within. In doing so, this Article will rely on a recent paper by David B. Wexler, who suggested that we can conceptualize practices and techniques of TJ as a kind of "liquid" and we can look at the legal landscape as a "bottle."' By examining the legal rules and proceedings, we can evaluate "how much of the TJ liquid can be poured into the assorted bottles." In particular, this Article looks at legislation regarding youth defendants or offenders in Israel, examines these legal rules and procedures to see how much liquid can be poured into the bottle, and whether this legal landscape is TJ friendly. Such an evaluation will teach us whether the legal landscape, as is, will allow for easy mainstreaming of TJ within youth courts. We can also learn what aspects may provide a challenge in mainstreaming TJ, as well as what changes can be made to enhance TJ potential. Before we turn to a discussion on youth justice in Israel, it will be helpful to elaborate some more on TJ and specific practices and techniques.
. The criminal republic: Democratic breakdown as a cause of mass incarceration.
First, more informed decisions will be better ones. That requires some deference to criminal justice experts. But encouraging such deference simultaneously requires better educating the public. "Teaching" is useless, however, unless students are attentive and open-minded. Deliberative mechanisms that engage the public with the specifics of concrete cases and compel them to engage with people outside their social sphere and ideas outside their political one help to encourage such attentiveness and open-mindedness. Indeed, such mechanisms better enable ordinary persons to draw on their own justice instincts in a more effective, informed way. Unfortunately, these mechanisms require smallgroup contact, making them hard to implement on a widespread basis. Second, any mechanism that encourages greater empathy for other groups will moderate carceral impulses. Again, such empathy requires prolonged, increased contact with members of such groups in shared tasks. Such contact is likewise hard to foster society-wide. Ultimately, therefore, reformers should encourage any empathy-promoting, accurate information-expanding, and particularly inclusive deliberative efforts in connection with criminal justice. That may lead to small victories and gradual improvement in currently harsh carceral policies. More likely, however, if the thesis suggested here is correct, more fundamental changes in America's political system to move away from raw populism toward more deliberative populism will be necessary. I can see no such changes on the horizon. Absent unexpected shocks to the political system, therefore, I see an immediate future of, at best, modest improvement in a bleak carceral justice polity. (excerpt)
. The hydra-headed monster of sexual and domestic violence: a case for restorative justice?
The article seeks to ascertain the relevance of restorative justice in sexual and domestic violence, and also extrapolates in depth its relevance with respect to Daly and Cossins' arguments. While Daly seem to rely on her Sexual Assault Archival Study, as empirical evidence to hold that restorative justice can play a key role in providing victims of sexual assault justice, Cossins insists that the evidence is 'insufficient' to allow for restorative justices practices, and rather would prefer a legal reform. The question arises whether there could be a possibility for an integrated approach? (author's abstract)
. The limits of judicial idealism: Should the International Criminal Court engage with consequencialist aspirations?
Drawing on the experience of the International Criminal Tribunal for the Former Yugoslavia ("ICTY") and the International Criminal Tribunal for Rwanda ("ICTR"), this article argues that idealism about what international criminal justice mechanisms can achieve has lead to ideologically-driven judicial decision-making in international criminal law." ICL idealism manifests itself in the belief that international criminal prosecutions can achieve a wide range of aspirations and goals, both international and local. According to the Secretary General of the United Nations, international criminal tribunals pursue a number of aims including "bringing to justice those responsible for serious violations of human rights and humanitarian law, putting an end to such violations and preventing their recurrence, securing justice and dignity for victims, establishing a record of past events, promoting national reconciliation, reestablishing the rule of law and contributing to restoration of peace." Idealism about the institutional capacity of international tribunals also found expression in the reports of Judge Antonio Cassese, the first President of the ICTY and ICTR.22 Among the institutions' "Future Priorities," Judge Cassese confidently stated that the Tribunals were establishing an unassailable "historical record ... thereby preventing historical revisionism," which he lauded as "a most important function of the Tribunal." In the case of the ICTY in particular, Cassese added that in their judicial proceedings international judges endeavored "to establish as judicial fact the full details of the madness that transpired in the former Yugoslavia." (excerpt)
. The paradox and promise of restorative attorney discipline.
Our contribution to this debate is to envision a specific structure and form for public participation in disciplinary processes. We draw upon theory and practice in the field of Restorative Justice. Developed primarily in the context of criminal and juvenile justice, Restorative Justice animates diversionary programs such as victim offender mediation, conferencing,and sentencing circles and emphasizes two important elements that are currently undervalued in attorney discipline: 1) deliberation and decision making by a diverse group of stakeholders and 2) discussion that focuses on repairing the damage caused by the offender. A restorative approach sees “that ‘justice’ can only be realized when the stakeholders most directly affected by a specific offence—the victim, the offender and the community—have the opportunity to voluntarily work through the consequences of the offence with the emphasis on repairing the harm and damage done.” In our view, the legal profession both constitutes and creates community. By strengthening that community, a more restorative disciplinary process can in turn improve the morale of practicing lawyers, prevent ethical misconduct, and protect the public. (excerpt)
. The problem with the duty to adjudicate: How mediations can promote international human rights.
In this Note, I expose the potential drawbacks to considering adjudication as the only option for remedying human rights abuses. Furthermore, I discuss the use of mediations as an alternative or complement to adjudications. I contend that mediations should be used more widely to improve human rights enforcement and protect vulnerable persons from future violations. Mediations can help fill the gaps that currently exist with adjudications as the default enforcement mechanism. For example, people are generally most susceptible to human rights violations in states with a weak rule of law, which in turn correlates to limited access to justice. Mediations can improve access to justice in states that are struggling to enforce international human rights norms. In fact, they may even be preferable under some circumstances due to their greater availability and their ability to promote human rights appreciation in developing nations as well as focus on the needs of both the victim and the perpetrator. I will examine how mediations can be used to address circumstances like the previously described child labor abuses in Mayatha. I argue that mediations should be an acceptable and, in some circumstances, even the preferred method to remedy human rights abuses. I will illuminate the advantages, disadvantages, and feasibility of using mediations as a method of confronting human rights abuses. However, this Note does not argue that mediations are an acceptable means to resolve all human rights abuses; instead, it contends that stakeholders should examine mediations as a potential tool to provide justice and human rights protections to people around the world. (excerrpt)

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