Restorative Justice and Responsive Regulation

By John Braithwaite | Go to book overview

8
Transforming the Legal System

ALREADY THE POSSIBILITIES OF RESTORATIVE JUSTICE AND RESPONSIVE REGULATION have been explored in a remarkable variety of legal fields—criminal offending, school bullying, Indigenous justice, consumer complaints against nursing homes, nuclear regulation, financial regulation, other areas of business regulation, human rights, and the regulation of armed conflict. This chapter expands the ambit further to legal process across the entire legal system. The argument will be that (1) it is possible to transform the entire legal system to a more just one through a radical remake of the legal process according to the principles of restorative justice and responsive regulation; (2) such a project is not as utopian as it may seem, since major changes are already afoot that are spontaneously pushing the legal system in the direction of wider use of alternative dispute resolution; but (3) there is as much chance that the ultimate destination of this change will be an alternative dispute resolution (ADR) dystopia as a change for the good. Yet state and social movement steering of the growing wave of ADR holds out the possibility of a legal system that advances justice more than injustice. Equally, with radical transformation of the legal process, there is the prospect of enhanced economic efficiency through increasing the odds of win-win outcomes in a system where a culture of justice delivers principle-based certainty.1

It is doubtful that any Western society has such a legal system today. We have a legal system where even in a comparatively just society like Australia, 68 percent of the people in the workforce who suffer imprisonment are unemployed at the time of arrest, while almost all major corporate criminals are unpunished. It is a legal system that allows many profitable large corporations to get away with paying no company tax. It is a legal system that enacts a Trade Practices Act for the purposes of consumer protection yet finds that more than 90 percent of the private litigants under the act are businesses rather than consumers. Across the board when rights are created, those rights are used by large corporations for purposes such as avoiding their tax obligations, while poor and middle-class individuals almost never have the legal resources to enforce such rights in the courts. Systematically, the poor are denied access to the courts while wealthy corporations use the law as a weapon to advance their interests against

-239-

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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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