The institutionalisation of restorative justice: justice and the ethics of discourse
| Jurisdiction | South Africa |
| Date | 15 August 2019 |
| Published date | 15 August 2019 |
| Citation | 2007 Acta Juridica 56 |
| Pages | 56-72 |
| Author | Barbara Hudson |
The institutionalisation of restorative
justice: justice and the ethics of discourse
BARBARA HUDSON*
University of Central Lancashire, UK
I INTRODUCTION
The starting point for this paper is that restorative justice is based on the
idea of examining and reconciling different claims on justice and different
perspectives on undesired (criminal) events through discourse. Terms
such as ‘dialogue’, ‘deliberative debate’, ‘conference’, occur repeatedly in
discussions and descriptions of restorative justice, but these words remain
largely unexamined, they are the taken-for-granted dimensions of
restorative justice. This paper focuses on the ‘discourse’ of restorative
justice; the discussion rests on three main arguments:
(1) Even democratic and egalitarian, modern societies are nonetheless
divided societies; this means that residues of former conflicts
implicated in, for example, imperialism, autocratic monarchies, lack
of rights to any but a narrow group of bourgeois citizens, remain
and that new conflicts emerge.
(2) Theories and models of justice presently being advocated to
establish discourse as the fundamental principle of justice are better
suited to conflict solving than established formal modes of justice,
and restorative justice incorporates the discursive principle more
closely than other justice modes do.
(3) The discursiveness of restorative justice could be restricted or
distorted by institutionalisation, but other futures are possible.
The paper will discuss the principles of discourse that are advocated as
the model of justice with the greatest potential for resolving conflicts, and
for reconciling competing claims and different perspectives. It will then
draw on two examples of instances where principles of discourse are
penetrating justice debates and practices: the Canadian Supreme Court
and the Ministerio Publico in Brazil.
1
Both these countries introduced
new constitutions in the 1980s which respond to conflicts and divisions
of different kinds. The Canadian Constitution was prompted in large part
by the demands of the French-speaking population of Quebec for
separation from the English-speaking Canadian Federation; the Brazilian
* BSC MA PhD Professor of Law,University of Central Lancashire.
1
Research was assisted by a grant from the Canadian High Commission Faculty Research
Program, and by support from FEMPAR (Fundacao Escola do Ministerio Publico do Estado
do Parana).
56
2007 Acta Juridica 56
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Constitution was introduced following the end of the military dictator-
ship and emphasizes the importance of extending democratic rights to
previously marginalised groups.
II JUSTICE IN DIVIDED SOCIETIES
Even the most democratic societies are divided by gender, race, ethnicity,
socio-economic status, lifestyle, religion and so on. Diversity and division
are unavoidable; they are conditions of modernity, made more complex
over the centuries by population movements associated with wars,
famines, imperialism, the slave trade and other drivers of migration. The
citizens of modernity do not live in the near-homogeneous societies
envisaged both by traditional forms of indigenous justice, and by the
Enlightenment philosophers and politicians who developed the theories
and institutions of justice that were implemented in Europe and exported
around the globe. Post-Enlightenment liberal theories were based on the
lives and interests of a narrow – and therefore not radically pluralist –
group of persons: white, property-owning males. The radical divisions in
contemporary societies mean that these principles are not adequate to
realise the aims of democratic societies around the world in regard to
rights and remedies; that is, they have not proved effective for the
extension of justice to all citizens. Issues of the rights of minority groups
to cultural recognition; rights and protection of women and children;
rights and protection of migrant workers; and of those who appear to
threaten the physical security, economic well-being or preservation of
culture of democratic societies, make new principles and procedures of
justice necessary.
Divided societies must have institutions and processes to adjudicate
competing rights claims; they must find ways of including the hitherto
excluded and marginalised; they must acknowledge and accommodate
hitherto unrecognised identities; they must define rules of membership
and decide which rights are membership rights and which are universal
human rights; they must establish rights and responsibilities in relation to
fields new to governance, such as environmental concerns. They must
find modes of accommodation and establish procedures of fair co-
operation between groups and individuals who may have different and
even conflicting interests and ideas of the good life.
As well as adjudicating between competing claims and ensuring
co-operation when interests and values compete, justice systems in
divided societies have to be able to move beyond the closures of what
rightly has been described as ‘white man’s justice’.
2
Feminists and
2
B Hudson ‘Beyond white man’s justice: race, gender and justice in late modernity (2006)
10(1) Theoretical Criminology 29.
57THE INSTITUTIONALISATION OF RESTORATIVE JUSTICE
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