Restorative Justice and Responsive Regulation

By John Braithwaite | Go to book overview

2
Responsive Regulation

THE BASIC IDEA OF RESPONSIVE REGULATION IS THAT GOVERNMENTS SHOULD BE REsponsive to the conduct of those they seek to regulate in deciding whether a more or less interventionist response is needed (Ayres and Braithwaite 1992). In particular, law enforcers should be responsive to how effectively citizens or corporations are regulating themselves before deciding whether to escalate intervention. Responsive regulation is not only something governments can do; private actors in civil society can also regulate responsively, indeed, even regulate governments responsively (Gunningham and Grabosky 1998).

Regulatory formalism is the important contrast to responsive regulation. The formalist says to define in advance which problems require which response and write rules to mandate those responses. The formalist might say, for example, that armed robbery is a very serious evil. Therefore it should always be dealt with by taking it to court, and if guilt is proven, the offender must go to jail. Responsive regulation requires us to challenge such a presumption; if the offender is responding to the detection of her wrongdoing by turning around her life, kicking a heroin habit, helping victims, and voluntarily working for a community group “to make up for the harm she has done to the community,” then the responsive regulator of armed robbery will say no to the jail option.

The problem many have with responsive regulation is that it is not designed to maximize consistency in law enforcement. Indeed, the idea of responsive regulation grew from dissatisfaction with the business regulation debate—some arguing that business people are rational actors who only understand the bottom line and therefore must be consistently punished for their lawbreaking, others that business people are responsible citizens and can be persuaded to come into compliance. In different contexts there is a lot of truth in both positions. This means that both consistent punishment and consistent persuasion are foolish strategies. The hard question is how to decide when to punish and when to persuade (Braithwaite 1985). What makes the question such a difficult one is that attempts to regulate conduct do not simply succeed or fail. As we will see in chapter 4, often they backfire, making compliance with the

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Restorative Justice and Responsive Regulation
Table of contents

Table of contents

  • Title Page iii
  • Preface vii
  • Contents xiii
  • 1: The Fall and Rise of Restorative Justice 3
  • 2: Responsive Regulation 29
  • 3: Does Restorative Justice Work? 45
  • 4: Theories That Might Explain Why Restorative Justice Works 73
  • 5: Worries About Restorative Justice 137
  • 6: World Peacemaking 169
  • 7: Sustainable Development 211
  • 8: Transforming the Legal System 239
  • References 269
  • Index 297
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