Academic journal article International Journal of Punishment and Sentencing

Restorative Justice: Sketching a New Legal Discourse

Academic journal article International Journal of Punishment and Sentencing

Restorative Justice: Sketching a New Legal Discourse

Article excerpt

What needs radical reexamination is what it means to punish, what is being punished, why there is punishment, and, finally, how punishment should be carried out. What was conceived in a clear and rational way in the seventeenth century has grown dim with the passage of time. The Enlightenment is not evil incarnate, far from it; but it isn't the absolute good, either, and certainly not the definitive good.

Michel Foucault (1)

Introduction

As the epigraph suggests, the aim of this paper is not merely an exploration of the practice of restorative justice, but rather an examination of the radical re-visioning of criminal justice specifically and legal discourse generally toward which restorative justice gestures. Restorative justice imagines, and seeks to bring about, a system of justice which is responsive to the vicissitudes and dynamism that characterize individual experiences of crime. In order to do this, it re-imagines what the priorities of a system of criminal justice should be by inverting the priorities of traditional legal discourse. Whereas the traditional Western legal discourses of utilitarianism, or efficiency, and justice theory emphasize the so-called public interests triggered by crime, restorative justice emphasizes the private interests that go largely unaddressed in the criminal justice system as it exists today.

The result of this inversion of the traditional concern of public over private is that neither of the traditional legal discourses can descriptively or normatively account for a restorative justice paradigm. In other words, restorative justice cannot be adequately explained using the vocabulary of either utilitarianism/efficiency theory or justice theory. Since both these traditional theories make universal claims about human nature and the function of criminal punishment, the fact that the dynamism of restorative justice is not fully exhausted by the vocabulary of either discourse indicates that perhaps the two traditional discourses have some common underlying tenet with which restorative justice is incompatible. My suggestion in this paper is that restorative justice does not embrace the traditional Enlightenment notion that a universal and transcendent rationality or Reason frames and inflects the formation of individual subjects. Instead, restorative justice embraces an understanding of subject formation which is akin to, or at least parallel with, Michel Foucault's notion of subjectivation; that is, restorative justice emphasizes the historical, social, institutional, cultural, and ultimately constructed and constructive nature of the individual subject as opposed to the universal and transcendent subject of traditional legal discourse, which is itself one of the historical legacies of the Enlightenment. This kinship between restorative justice and Foucault's philosophy suggests the emergence of a new type of legal discourse, one that is less rigid in its formalism and more agile in its application, a legal discourse that can account for and respond to the lived needs and experiences of human beings, and one that, unlike the traditional discourses, does not demand that all other truths be subsumed or ignored, but instead recognizes the value of alternatives and embraces multiplicity. This is, admittedly, a monumental task that I have set before myself, one which I cannot hope to fully realize within the confines of this article, but as the title indicates, the pages that follow are mere sketches, provisional pencil marks on a blank page, a work in progress; taken as such, it is my hope that I have at least made visible the contours of an alternative legal discourse, one which is, by its very premises, vital and evolutive in nature.

I. Restorative Justice

Many writers locate the origins of restorative justice in the criminal justice practices of indigenous peoples around the world and pre-modern societies in Africa, the Middle East, and Asia, practices which were, and in some cases still are, embedded in religious and spiritual traditions. …

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