Restorative Justice: Sketching a New Legal DiscourseInternational Journal of Punishment and Sentencing (2008)
Restorative justice has emerged as an increasingly accepted approach to criminal law around the world over the last 30 years or so. Unlike the traditional theories of justice – Kantian justice and utilitarian efficiency – restorative justice focuses on the private rather than the public effects of crime. Restorativists emphasize the needs of primary stakeholders, namely victims and offenders, over the needs of society at large when considering how the criminal justice system should respond to crime. This Article argues this difference in focus is reflected in the various theories’ conceptions of human nature and subjectivity. While the traditional theories maintain very different conceptions, each relies on a conception that is universal, transcendental, and abstract. When one examines the underlying assumptions in restorativist literature, one finds that restorativists are less dependent upon such abstract conceptions. Instead, restorative justice embraces an understanding of subjectivity that is more akin to the thought of Michel Foucault – an understanding of the individual as a locus of cultural, social, economic, and historical relationships. At the same time, a Foucauldean analysis demonstrates that restorative justice practice is much more compatible with Kantian than utilitarian assumptions about human nature and morality, and, indeed, that as applied to criminal punishment, restorativists are truer to Kant’s Categorical Imperative than Kant himself. In the end, this Article argues that restorativism, as seen through a Foucauldean lens, offers an intriguing augmentation of the dominant theories of justice and utilitarianism and may ultimately serve as a jumping-off point for a more dynamic, agile, and vital approach to the practice of law.
- restorative justice,
- michel foucault,
- justice theory
Publication DateSummer July 1, 2008
Citation InformationFrank D Hill. "Restorative Justice: Sketching a New Legal Discourse" International Journal of Punishment and Sentencing (2008)
Available at: http://works.bepress.com/frank_hill/1/
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