Bluebook Law Essay Sample on Restorative Justice: Concept, Definition, and Practice

In this expository essay, you will find an in-depth discussion of the concept of restorative justice, comparing it with other forms of justice, and further exploring how restorative justice is practiced and impacts criminal justice.

The law was established to ensure that no person is harmed and that the accused face the morally right consequences of their actions. With this, the idea of justice was formed. Justice is a philosophical and ethical idea that proposes that all people should be treated fairly, impartially, and reasonably by the law and its arbiters. Earlier legal systems focused on punitive ways to render justice, specifically by imprisonment or death. However, with the evolution of criminal law , sociology, and psychology, the concept of restorative justice was born. In this law essay , the author sets out to provide an in-depth discussion of restorative justice by differentiating its concept from the concept of conventional justice, defining restorative justice, and discussing the impacts and issues related to its practice.

The Concept of Restorative Justice

The concept of restorative justice is a relatively new concept in law, proposed by Albert Eglash in the late 70s. In his paper “Restitution in Criminal Justice: A Critical Assessment of Sanctions,” published in 1977, he presented three types of criminal justice: retributive, distributive, and restorative. [1] Restorative justice differs from the first two as it focuses on “restoring the harmful effects of these [the criminal act] actions and actively involves all parties in the criminal process” instead of focusing only on the criminal act while pushing all parties involved—offender and victim—to the sidelines as passive participants. [2] Restorative justice, therefore, emphasizes the restoration of dignity, equality, and respect that were impinged upon by the criminal act. 

Although restorative justice was applied to criminal law only in the 20^th century, its concept has been widely discussed since antiquity. Aristotle discussed the concept, and it was widely used by indigenous groups[3] , though it was not applied to modern legislation. Restorative justice is anchored in the idea that crime is an act that harms people, a stark contrast to the conception of justice as an offense to the law established by the nation-state. Thus, with restorative justice, crimes are settled as conflicts between individuals, so it is resolved by the parties involved rather than decided by disinterested third parties.

Definition of Restorative Justice

The definition of restorative justice did not become clear until recently, after much discussion and research. Still, Gavrielides argues that definitions tend to be artificial and tend to be obsolete as new needs and innovations emerge. [4] This is a crucial perspective in the study of restorative justice since there is a tendency to be attached to established conceptions, which results in a resistance to more current and applicable definitions. 

With that said, the consensus on the definition of restorative justice is that it is a paradigm or an approach to dealing with a crime and its consequences. Howard Zehr, one of the founding fathers of restorative justice, refers to restorative justice as a philosophy. However, he provides the working definition of restorative justice in his book The Little Book of Restorative Justice  (2003): “[a] process to involve to the extent possible, those who have a stake in a specific offense to collectively identify and address harms, needs, and obligations in order to heal and put things as right as possible”. [5]

This definition has served as the foundation of modern definitions of restorative justice. Apart from that it briefly outlines the guiding principles in the practice of restorative justice. More current definitions of the term more or less align with Zehr’s definition. The United Nations defines restorative justice as “a way of responding to crime, or to other types of wrongdoing, injustice or conflict, that focuses primarily on repairing the damage caused by the wrongful action and restoring, insofar as possible, the well-being of all those involved”.[6] While the Canadian Intergovernmental Conference defines it as “an approach to justice that seeks to repair harm by providing an opportunity for those harmed and those who take responsibility for the harm to communicate about and address their needs in the aftermath of a crime”. [7] 

These definitions follow a similar trend in understanding restorative justice as an approach or a philosophy in dealing with crime. Furthermore, this approach is not punitive, nor does it focus on “paying” for a crime, but on repairing broken relationships and restoring peace or balance, as Zehr put it. [8] 

The Pillars of Restorative Justice

In the practice of restorative justice, the definition is less important than the pillars. The pillars of restorative justice, as established by Zehr, is the one governments, organizations, and law practitioners, adhere to. Restorative Justice has three pillars—harms and needs, obligations, and engagement. [9] In its first pillar, restorative justice is concerned with the harm done and the needs of the victim in order to recover and repair the harm done, as well as the harm done or experienced by the offender that compelled them to commit a crime. The second, obligations, is concerned with the obligations of the offender to take accountability and responsibility for the crime. This is less about punishment or making sure they “get what they deserve” and more about making sure they understand the harm they have caused and the consequences of their actions. The last pillar is engagement wherein all the direct stakeholders—the victim, offender, and community—all actively participate in reaching a consensus on how to deliver justice and resolve the case. [10] These pillars serve as the foundation for the practice of restorative justice.

Restorative Justice in Practice

The pillars of restorative justice have served as the foundation for numerous policies for handling crime, which has in turn, helped establish processes for the practice. The prevailing criminal justices remain retributive and distributive, however, restorative programs now exist within the criminal justice process all over the world. Restorative justice takes the form of a few programs, namely: victim-offender mediation, circles, conferencing programs, victim-offender panels, victim assistance programs, and ex-offender assistance programs.[11] According to the Centre for Justice & Reconciliation, the following reparative programs may also be part of the restorative process: restitution, community service, and victim compensation.[12] These programs either address or help facilitate a consensus about how to address the pillars of restorative justice—the harms and needs of both victims and offenders, the obligations of offenders and the community, and the engagement of the stakeholders.

Despite the existence of seemingly numerous programs and policies adhering to the principles of restorative justice, retributive and distributive justice are still the prevalent forms of justice practiced in most systems. For most countries, restorative justice serves as a complement to established justice systems. While, perhaps, modern proponents of restorative justice would prefer restorative justice as the prevalent form of justice, Zehr and Gohar stated in their book that both the current criminal justice system and restorative justice are necessary if we are to achieve truly restorative outcomes. [13] It is worth noting here that the authors' goal, at least in the near future, is restorative outcomes rather than replacing the current system with a restorative system. This approach to criminal justice would greatly benefit all stakeholders as it emphasizes the need to utilize all available resources to arrive at an acceptable result. Nevertheless, it is possible to develop or improve the current set of restorative programs and practices being implemented. Further integration of restorative justice principles in legislation, moreover, would, indeed, take more time.

Impacts of Restorative Justice

Various studies have been conducted to verify the effectiveness of restorative justice, and among the most recent studies reviewed for this paper, the census is that restorative justice has an overall positive impact on the victim, offenders, as well as the community. 

A 2019 study on the impact of restorative justice on domestic violence found that restorative justice practices are useful in reducing subsequent incidents of violence.[14] Similarly, a study conducted in Australia, found that not only do restorative justice programs have a positive effect on recidivism, but it also leaves a positive impact on the victims as the majority of them are satisfied with the processes and outcomes. [15] Meanwhile, a 2017 meta-analysis study found that the effects of restorative justice programs on juvenile offenders are not as promising, as results are inconsistent, but they have a consistently positive impact on victims.[16] The studies summarized here are limited but show a promising future for the further implementation of restorative justice in the criminal justice system.

Conclusion

Arguably, the practice of restorative justice is currently fragmented as it serves mostly as a supplement to the established retributive programs and practices. While there is plenty of room for improvement in how justice systems all over the world implement restorative justice, this type of justice, nonetheless, presents a better alternative to mass incarceration. Restorative justice helps facilitate a return to communal approaches, which are arguably more humane, as has been demonstrated in the discussions of the concept, definition, and pillars of this type of justice. 

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