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Theory Articles -- Full List

Articles discussing theoretical issues related to restorative justice.

. The truth about truth commissions: Why they do not function optimally in post-conflict societies.
Almost forty years after the first truth commission convened and more than sixty-seven others have been employed, there is little clarity on how they contribute to their stated objectives and in which transitional contexts they succeed or fail. This Article uses data gathered from my field research in Ghana, Sierra Leone, and Liberia to develop a theoretical framework for understanding in which contexts truth commissions may be the most effective. Using insights from the legal transplant literature and applying it to the diffusion of truth commissions, this Article finds that truth commissions face greater challenges carrying out their mandates in postconflict as opposed to post-authoritarians ocieties. In post-confict societies, weak institutions to support a truth-telling process combined with large numbers of victims and perpetrators will tend to overwhelm truth commissions. These factors, along with the lack of moral consensus surrounding mass violence, interact to make truth commissions function less optimally in post-conflict contexts. This Article finds that despite their widespread use in post-conflict and fragile states, truth commissions may have more utility in post-authoritarian or even non-transitional states. In sum, this Article argues that the kind of transition should determine the kind of transitional-justicei nterventions employed. (author's abstract)
. Transitional justice accountability and memorialisation: The Yemeni children affair and the Indian residential schools.
This article outlines the building blocks of transitionalj ustice in democracies. Grounded in the premises of Historical Institutionalism, the article analyses the institutions and processes established and their effect on the outcomes. It offers a comparative analysis of two cases of transitionalj ustice processes in democracies. These are the investigations of the disappearance of Yemeni children in Israel and the Indian Residential Schools Settlement in Canada. There are important similarities and difrences between the two cases. In both settler societies the transgressions were part of aggressive assimilation policies directed at children in an attempt to wipe out the particular cultural influences of the children's family and community. In both cases, children wcrc isolated from the influences of their ethnic group in order to be resocialised into the dominant culture. The dire consequences of both these were suppressed, denied and forgotten in official narratives. The different outcomes of these processes are explained by the differences in the intent to redress, the types of institution and the processes implemented. (author's abstract)
. Transitional justice: A colonizing field?
Transitional justice, as a recent field of study, is in transition itself.' Scholars are raising a number of contentious issues and it has become the subject of ongoing debates regarding how to best come to terms with the past in transitional societies. This usually involves, for instance, the creation of specific judicial institutions to carry out justice and hold individuals accountable in the aftermath of conflict or grave human rights violations. As noted by Thomson and Nagy, the field of transitional justice has only recently started to pay attention to "more localized, traditional mechanisms as a corrective to the shortcomings of internationalized, 'one-size-fits-all' approaches." In this article, I contend that the transitional justice literature is defined by a Western, legalistic approach to justice, which affects the field's ability to account for indigenous and customary mechanisms of justice that do not espouse this legalistic lens. I will discuss two things here. First, I will examine how transitional justice scholars and practitioners favour the implementation and development of certain institutions to the detriment of others in transitional societies. These institutions are usually based on a neo-liberal democratic framework. This, in turn, leads to a discussion about how this preference for particular institutions and mechanisms reveals latent assumptions about the primacy of the rule of law. This article calls for caution in the blind promotion of the rule of law. (excerpt)
. Truth and Reconciliation Commissions and Transitional Justice in a Restorative Justice Context.
There is much debate about which interventions are most effective at rebuilding societies, and the international community has struggled to find acceptable, affordable, and sustainable ways to help communities recover from violence. While criminal prosecutions of war crimes are still an important transitional justice tool, over time several limitations with the traditional retributive justice approach have emerged. In a range of post-conflict settings, trials can be politically unfeasible, and the rule of law is often weak, underdeveloped or suffering from corruption. There are problems of jurisdiction, and the evidentiary rules governing court proceedings can limit investigation into the nature of human rights violations. Furthermore, trials are not victim-centered. In response to these problems, truth and reconciliation commissions have emerged as a restorative justice-based alternative to assist societies to confront their past and are now considered a core transitional justice intervention. (excerpt)
. Words on words.
Restorative justice has been the general designator within the field. It appears in UN documents, in Council of Europe documents, and in articles and books. And the designation sneaks into other languages as well—un-translated. To me, it sounds like a bad choice. The worst part of it is ‘justice’. It leads us straight into the institution of Law. Lady Justice, blindfolded with sword in hand. If anything, the activities we are interested in have no need for a sword. And no need for blindfolding anybody. Blindfolding is a device for preventing undue interference and thereby hindering abuse of the sword. Organisations for alternative ways of handling conflicts are not there to create pain, but to create understanding. Penal law emphasises justice in terms of treating each case with equal gravity. But few acts are equal. And no human beings are completely equal to anybody else. Lawyers attempt to handle this unpleasant fact of life by looking away from most elements in what they are to compare. I often provoke law students by saying that they go through years of systematic training in what not to mention in court. In the end they are left with a few elements, and can thereby create an illusion of comparing equal cases and finding solutions claimed to be ‘just’. The alternative way to handle conflicts is based on the opposite principle. Here is no dominance of ready-made decisions. What is relevant is what the parties find relevant. The dominant goal is to bring the parties so close that they can see each other, and increase to the utmost the amount of information that can create a basis for handling the ongoing conflict. (excerpt)
. Working through the past in Bosnia and Northern Ireland: Truth, reconciliation and the constraints of consociationalism.
Bosnia and Herzegovina and Northern Ireland represent difficult cases for theories of conflict resolution: the consociational structures of governance in each case reflect and, arguably, reproduce the segregation that characterizes everyday life. In each country, truth recovery and reconciliation processes have been seen as ways of overcoming the polarizing effect of ethnonational division. This article suggests that this faith is misplaced on two accounts: firstly, while the intent to reconcile erstwhile ethnic opponents is laudable and admirable, it ignores obvious and complicated practicalities - particularly, the lack of consensus over the past. More fundamentally, however, I argue that the truth and reconciliation paradigm is politically redundant: insofar as it is constitutive of its own reality, it answers questions contained within its own logic and defers consideration of alternative concerns. In other words, by attempting to reconcile ethnonational identities the truth and reconciliation paradigm starts one step too far ahead of itself and by failing to problematize those identities it ends by reproducing them. I suggest that "dealing with the past" becomes saturated with political and social significance. (author's abstract)
Abu-Nimer, Mohammed. Reconciliation, Justice, and Coexistence: Theory & Practice
While researchers and practitioners in general have focused more on the prenegotiation and negotiation phases of response to conflict, less focus has been placed on the postsettlement reconstruction phase. In recent years however, the focus of research and practice has begun to expand to include postconflict conditions and processes. An essential element in this postsettlement phase concerns the parties’ ability to reconcile and reconstruct a new relationship. Much has been written on justice and forgiveness, particularly from theological and philosophical perspectives, yet comparatively little research has been done on ideas and processes of justice, reconciliation, and coexistence. This book, therefore, consists of a number of essays intended to advance the state of knowledge on concepts and practices related to reconciliation, justice, and coexistence. The book is organized into two main parts. The essays in Part I focus on the theoretical framework for reconciliation in peacebuilding. The essays in Part II focus on practices related to reconciliation, justice, and coexistence in areas of conflict; these essays highlight case studies from around the world (e.g., South Africa, Ghana, Northern Ireland, and Cambodia). Contributors represent much of the pioneering work being done by scholars and practitioners in the field of peacebuilding.
Achilles, Mary. Will Restorative Justice Live up to Its Promise to Victims?
Several years ago Mary Achilles collaborated with Howard Zehr on an article on the promises and challenges of restorative justice with respect to victims. They raised concerns about what they perceived as the offender-centered nature of many restorative justice programs and practitioners. As she writes in this chapter, Achilles still believes those concerns to be legitimate, yet she is also now inclined to take a more expanded view about the possibility that restorative justice can live up to its promise to victims. Specifically, she sees the promise of restorative justice to be the elevation of victims to the position of stakeholders in a justice process that begins immediately from the point of the harm caused by wrongdoing. With that in mind, she sketches how restorative justice can be the basis for changing the way we respond to victims to their benefit.
Acorn, Annalise. Compulsory Compassion: A Critique of Restorative Justice
At first, writes Annalise Acorn, restorative justice ideas and practices appealed greatly to her. She had deep misgivings about criminal justice as commonly conceived and applied; especially, as she puts it, with criminal justice as a 'conflation of justice with punishment as imprisonment – or as any pure infliction of suffering on the wrongdoer.' Restorative justice seemed so much more right and worthy as an approach to wrongdoing and injustice. Eventually, however, doubts about restorative justice began to chip away at her initially positive assessment. Her growing skepticism came from several sources, including reflection on her own personal experience, her sense of moral intuition, discomfort with what she perceived as a kind of wishful-thinking 'romanticism' in restorative justice perspectives, and analysis of restorative justice concepts. With all of this in mind, Acorn seeks in this book a critical examination of restorative justice. In particular, she critically assesses the claim that restorative justice can successfully bring together the values of love and compassion, on the one hand, and the requirement of justice and accountability, on the other hand. Toward these ends, she discusses the seductive vision of restorative justice; justice and the teachableness of universal love; restorative optimism; sentimental justice; love and justice; compulsory compassion; and restorative utopias.
Adams, Caralee. The talk it out solution.
What makes for a safe school? Security guards patrolling the hallways? Metal detectors? Zero-tolerance policies? The answer may be none of the above: Educators are searching for new solutions to achieving harmony in the classroom and, surprisingly, they’re increasingly holistic. “There aren’t enough bars, metal detectors, or police to make a school safe if there is a culture of violence in a school,” says Ted Wachtel, founder of the International Institute for Restorative Practices (IIRP) in Bethlehem, Pennsylvania. “You need to strike at the heart of the culture.” (excerpt)
Aitken, Jonathan. Divine Justice
What is justice? That sounds like the topic for a school essay. Yet in the marketplace of spiritual ideas, faith-based solutions and religious discussion, the question of justice—and an innovative answer to it—are moving up the agendas of thoughtful politicians and justice administrators across the world. (excerpt)
Allen, Jonathan. Memory and Politics: Three Theories of Justice in Regime Transitions
In his essay, “The Contest of the Facultiesâ€?, published in 1798, Immanuel Kant presents an intriguing reflection on the French Revolution. The moral significance of the revolution, he suggests, is to be found, not in any event directly connected to it, but in the reaction of “disinterested sympathyâ€? towards the revolutionary cause on the part of onlookers. Because this response was potentially hazardous and had nothing to do with selfinterest, Kant sees it as the result of a “moral disposition within the human raceâ€?, and thus as a moral phenomenon that can never be forgotten. Presumably for Kant, this serves as grounds for hope of moral progress in the form of movement towards a global “federal unionâ€? of independent republics, a union that would secure universal peace. Though I am no latter-day Kant, my central aim in this paper is to identify a novel moral phenomenon that is surely as significant, though considerably less exhilarating, than the circumstances noted by Kant in 1798. I am referring here to the remarkable rise of a series of practices and institutions operating at both the national and global level, designed to respond to war crimes, atrocities, human rights abuses, and grave injustices committed by states or political movements against minorities and individuals. Arguably, this is a development that takes its inception in the Nuremberg Trials and the passage of the United Nations Genocide Convention in 1948. The Eichmann Trial of 1961 also played an important role in alerting people to the idea that past human rights abuses require a response in the present; indeed, most of the manifestations of memory politics that concern me here have occurred since this trial. (excerpt)
Amstutz, Mark R.. The quest for peace and justice: A Biblical code of international relations
Mark Amstutz begins his consideration of the quest for peace and justice by referring to Michael Walzer's account of basic justice or 'moral minimalism.' Moral minimalism is not to be construed as shallow and virtually vacuous justice. Rather, it is to be construed as broad in scope, general in claims, and universal in applicability. Minimal morality is rooted in foundational claims of truth, common humanity, and basic justice, not in the particularities of common education, similar cultural values, or shared political ideologies. In contrast, maximal public justice is full-bodied and embedded in specific cultures and legal systems. Though it is rudimentary, minimal morality provides a framework for public justice, and an ethical basis for pursuit of global order and international peace. With all of this in mind, Amstutz explores elements of a 'minimal' Biblical account of international political ethics, the aim being to illuminate core political principles rooted in a Biblical tradition.
Anderson, S. Willoughby. The Past on Trial: Birmingham, the Bombing, and Restorative Justice.
The community, media, and scholarly responses to these trials point to the way that a crime's effects can reach far beyond the individual perpetrator and victim. In the context of unresolved civil rights-era violence, one murder or bombing inevitably expands outward and into the larger story of segregation and massive resistance; into the systemic, racially-based injustices of southern law enforcement; and to the New South's willingness to move quickly forward without reconciling its troubled past. Restorative justice theory, a reform movement within the criminal justice system, can help contextualize the broad consequences of these crimes. Taking the Sixteenth Street Baptist Church bombing as an example, I use restorative justice theory to expand the concept of harm resulting from this one incident. Rather than understanding the crime in traditional terms as an abstract harm against the state, we must imagine it as an act with consequences for the victims, the community at large, the offenders themselves, and the relationships among all three. By viewing this larger harm through the lens of restorative justice theory, we can expand our concept of 'victim,' and explore the need to think creatively about extrajudicial remedies that may to restore the damage wrought by crime. (excerpt)
Andrieu, Kora. 'Sorry for the Genocide': How Public Apologies Can Help Promote National Reconciliation
The aim of this article is to defend the politics of official apologies as part of a liberal conception of state and society. To acknowledge this is to defend a subjective conception of state legitimacy, not solely based on its objective efficiency but also on the meaning that citizens give to it and their belief in its legitimacy. I will argue that official apologies for past wrongs can be an essential component of this belief, and help building or rebuilding civic trust in the aftermath of mass atrocity. The acknowledgment of a wrongdoing, the acceptance of one's responsibility, and the expression of sorrow and regret for it can therefore appear as a reliable way to promote national reconciliation. I will show that in order to understand how pure words can provoke such an important shift, we need to `unfold' the meaning of an apology and to review our conception of reconciliation itself. Only if we consider reconciliation as the achievement of trust can apologies become part of the reconstruction process of post-conflict societies. I will draw upon a Habermassian conception of discursive solidarity to show that, rightly understood and formulated, apologies, as a form of dialogue, could become an essential norm-affirming and community-binding measure in the aftermath of mass atrocities, one compatible with a liberal project of transitional justice. (author's abstract)
Antkowiak, Thomas M.. Remedial Approaches to Human Rights Violations: The Inter-American Court of Human Rights and Beyond
This Article argues that reparative approaches that include only compensation and declarative relief are not only insufficient in egregious cases such as Plan de Sanchez, but they are also inadequate, inefficient, and even unwanted in many other scenarios of rights abuse. Thus, I espouse a remedial model that emphasizes the restorative measures of satisfaction and rehabilitation, as well as general assurances of non-repetition, in response to all human rights violations. (excerpt)
Aquino, Karl and Goodstein, Jerry. And restorative justice for all: Redemption, forgiveness, and reintegration in organizations.
We explore the topic of restorative justice in organizations. The tradition of restorative justice directs attention to the aftermath of wrongdoing. We highlight three ways offenders (making amends), victims (extending forgiveness), and organizations (fostering reintegration) restore justice in the workplace. Our paper concludes with questions for future research and inquiry. (author's abstract)
Archibald, Bruce P. Citizen Participation in Canadian Criminal Justice: The Emergence of 'Inclusionary Adversarial' and 'Restorative' Models
Changes in how citizens relate to criminal justice are in the air. Perennial demands to 'get tough on crime' continue. But as a society, we are 'getting smart about getting tough'. As the new Youth Criminal Justice Act and the relatively recent amendments to the sentencing provisions of the Criminal Code attest, Canada is at the forefront of international developments which acknowledge the importance of integrating restorative and more traditional paradigms of criminal justice. Moreover, the character of traditional criminal justice is changing. All of these initiatives are rooted in varying degrees of citizen alienation from what traditionally has happened in our criminal justice system. Individual citizens and identifiable communities are demanding greater participation in the administration of criminal justice. Courts, legislators and criminal justice policy makers are responding to these demands with measures, sometimes ad hoc and sometimes more coordinated, to increase the capacities of those affected by criminal harms, and their procedural aftermath, to participate meaningfully in effective societal responses to these wrongs. Meanwhile there is ferment in the scholarly literature about concepts of citizenship and theories of democracy. This paper is intended to sketch a map of these changes and reflect on the various new trails that are being blazed over what might otherwise be thought to be somewhat familiar territory. (excerpt)

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