Philosophical Arguments for the Change of Paradigms

At this point, it is necessary to present the philosophical arguments that justified/justify the change of paradigms guiding the criminal justice system, i.e., from a system almost exclusively oriented by the retributive and utilitarian paradigms to a system which has increasingly been including important restorative justice paradigm elements.

First, the fact that retributive and utilitarian paradigms justify alone the infliction of pain on an offender has been considered as particularly disturbing from a moral viewpoint.103 _{Concerning the retributive paradigm, as del Vecchio}

highlights, the absolute justice of repaying evil with evil (as sustained by Kant and other philosophers) is ‘really an empty sophism’ and, therefore, it was instead necessary to consider a philosophical framework where ‘an evil is to be put right only by doing good’.104 _{Retribution has been considered not as a theory}

but only as a philosophical justification to deliberately inflict pain and suffering on a human being, which makes it not only ethically flawed but ‘also morally indefensible’.105 _{It has also been said that ethical justifications, or obligations, to}

sanction norm violations do not resist further scrutiny as ‘the necessity for […] restoration of an intuitive moral balance after a crime does not necessarily imply the intentional infliction of pain on the offender’ and, hence, keeping an exclusive retributive justice paradigm ‘is in itself ethically doubtful’.106 _{A criminal}

101 _{Aukerman (2002) 63. See also Gwynn Davis, Making Amends: Mediation and Reparation in} Criminal Justice (1992) 11.

102 _{See infra Chapter II 2.4.} 103 _{Barnett (1977) 282.}

104 _{Giorgio del Vecchio, ‘The Struggle against Crime’ in Harry Acton (ed.), The Philosophy of} Punishment (London 1969) 197, 199.

105 _{Ezzat Fattah, ‘From Philosophical Abstraction to Restorative Action, from Senseless Retribution} to Meaningful Restitution: Just Deserts and Restorative Justice Revisited’ in Elmar Weitekamp and Hans-Jürgen Kerner (eds.), Restorative Justice. Theoretical Foundations (Willan Publishing 2002) 308, 313.

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justice system led predominantly by the retributive paradigm is not the most appropriate to restore the moral balance disrupted by a crime.107 _{Additionally,}

the ‘construction of the punitive proportionality is itself highly debatable’.108

Therefore, it is not advisable to consider the criminal justice system exclusively as sanction of crimes punished according to criminal law.109

Concerning the utilitarian paradigm, the levying of punishment is undertaken not for the criminal himself, but for its educational impact on the community, i.e., the crime is transformed in mainly a mere excuse for punishing and, thus, treating offenders as means to the ends of others in this manner may raise serious moral problems.110 _{The use of force against an individual merely}

based on the effect that such use will have on others may be questioned as the criminal justice system exclusively becomes a means to make it legitimate the use of force and, hence, it does not constitute a truth-seeking device.111 _An

exclusively utilitarian or instrumentalist response to crime is potentially ‘insatiable’ as it may ‘lead to punishing the innocent or to draconian punishments, in order to increase the deterrent impact’ and the utilitarian justifications of punishment ‘are limited by some (possibly hidden) deontological principles’.112 _{It has even been argued that as the punitive criminal}

justice system has lost its moral function, it no longer has a moral authority to censure criminal behavior.113

Retributive and utilitarian benefits should be incidental to the criminal justice system and, hence, they cannot provide, alone, a justification of the criminal justice system. Accordingly, something else was needed. Restorative justice precisely shifts the moral and ethical justifications of punishment under retributive and utilitarian paradigms as under the latter punishment is morally viewed and justified as an end in itself.114 _{Therefore, the crisis of retributive and}

utilitarian paradigms, due to the uncertainty of their moral status,115 _{justified the}

emergence and incorporation of the restorative justice paradigm.

107 _{Ibid., 59.}

108 _{Ibid., Loc. cit.}

109 _{Federico Reggio, ‘Dialogical Justice: Philosophical Considerations for Re-Thinking the Reaction} to Crime in a Restorative Way’ in David Cornwell et al. (eds.), Civilising Criminal Justice: An International Restorative Agenda for Penal Reform (Waterside Press 2013) 315, 337.

110 _{Barnett (1977) 282.} 111 _{Ibid., Loc. cit.} 112 _{Walgrave (2008) 54.} 113 _{Ibid., 55.}

114 _{Barnett (1977) 283.} 115 _{Ibid., Loc. cit.}

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Second, the previous argument is directly connected to the need for a theory of good, i.e., how one moves from the bad to the good,116 _{or, in other}

terms, restorative justice seen as a theory of social justice.117 _{Under this logic,}

restorative justice philosophy lies on a set of values which include, among others, non-domination, empowerment, respectful listening, equal concern for all stakeholders (victims included) and respect for human rights specified in international instruments.118 _{In comparison to retributive and utilitarian}

paradigms, the restorative justice paradigm is based on a different ethics of justice due to its framing values and principles.119 _{These come from various}

discursive traditions of justice including: i) theological roots and moral philosophy at which ‘compassion, forgiveness, healing and caring tend to come to the fore’;120 _{ii) political and social theories; and iii) ideals from communitarian}

philosophy which focus on how to repair collective relational fabrics affected by crime.121 _{Indeed, as pointed out by Braithwaite, restorative justice values may be}

considered as cultural universals as all cultures value redress of damage to persons and property, security, dignity, empowerment, based on justice and social support and they are indispensable to ‘our emotional survival as human beings’.122 _{Restorative justice aims to address the emotional dimensions of crime}

as much as possible, and to transform the destructive dimensions present in those emotions into constructive motivations, ‘which may contribute directly to the quality of social life while avoiding the ethically negative apriorism of pain infliction’.123

Third, the ethical need to respond to crime cannot adopt manifestations that themselves violate the dialogical principle, which ‘includes the necessity of re-empowering the victim and meeting his or her needs’,124 _{as postulated by the}

restorative justice paradigm. The reparative and participatory dimensions of the restorative justice paradigm reflect a dialogical idea of justice which corresponds, in turn, to the dialogical condition that characterizes both human beings and

116 _{John Braithwaite, ‘Principles of Restorative Justice’ in von Hirsch et al. (2003) 1, 4.}

117 _{Gerry Johnstone, ‘Introduction’ in Gerry Johnstone (ed.), A Restorative Justice Reader. Texts,} Sources, Context (Willan Publishing 2003) 1, 7.

118 _{Ibid., 9.}

119 _{George Pavlich, ‘Ethics, Universal Principles and Restorative Justice’ in Gerry Johnstone and} Daniel Van Ness (eds.), Handbook of Restorative Justice (Willan Publishing 2007) 615, 618. 120 _{Ibid., Loc. cit.}

121 _{Ibid., Loc. cit.}

122 _{John Braithwaite, ‘Restorative Justice and a Better Future’ in Johnstone (2003) 83, 89.} 123 _{Walgrave (2008) 60.}

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institutions.125 _{Accordingly, the so-called militaristic manner of criminal justice}

led almost exclusively by retributive/utilitarian paradigms is to be replaced by a system that meaningfully incorporates the ‘peaceful co-operative dialogue of restorative justice’.126

Fourth, as highlighted by Barnett, restorative justice is oriented by humanitarian goals, including provision of reparations to victims, which makes the criminal justice system more just overall speaking.127 _{Thus, the goal brought}

by the restorative justice paradigm is ‘not the suppression of crime: it is doing justice to victims’.128 _{Although the restorative justice paradigm is not a panacea,}

it may lead to a fairer and improved criminal justice system and society, which cannot arguably be offered by the traditional retributive and utilitarian justice paradigms alone.129 _{Therefore, a moral and ethical principle for the shift from a}

system only led by the retributive/utilitarian paradigms to one that also is guided by the restorative justice paradigm is ‘not to harm the guilty but to help the innocent’.130

Fifth, restorative justice philosophy offers a balanced approach to justice as it elevates the roles of victims, communities and offenders.131 _Restorative

justice philosophical framework orients its pursued goals towards the primary actors of the criminal system, i.e., the victim, the offender and the community. Hence, criminal justice system exclusively led by retributive/utilitarian paradigms, which robs crime victims the opportunity to express their views and concerns, is replaced by a criminal justice system where via the increasing incorporation of restorative justice elements, i.e., led by mixed paradigms, provides more recognition and validation to victims.132 _{Restorative justice, as a}

philosophical framework, is not punitive or lenient in focus and brings important elements absent in a traditional criminal justice system oriented only by retributive/utilitarian paradigms.

Sixth, a concept of equality of justice justified the need for a shifting of paradigm in the sense that not (equal) hurting of offenders but restitution of victims is sought and, thus, ‘Equality of justice means equal treatment of

125 _{Ibid., 340.} 126 _{Johnstone (2003) 5.} 127 _{Barnett (1977) 294.} 128 _{Ibid., 296.} 129 _{Ibid., 299.} 130 _{Ibid., 301.}

131 _{Kathy Elton, ‘The Practice of Restorative Justice: Restoration, a Component of Justice’ (2003) 1} Utah Law Review 43, 50.

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victims’.133 _{Human rights should be equally enforced and respected.}134 _{Thus, the}

restorative justice paradigm acknowledges inter alia a victim’s right to receive reparations from the party responsible and, hence, equality of justice demands equal enforcement of each individual victim’s right to restitution.135

Seventh, even though the previous arguments are arguably and mainly supported by the natural law theory and constructive interpretivism, it is also possible to justify the shift of paradigms under legal positivism.136 _{As known,}

under the philosophy of legal positivism, what the state establishes as law, provided that all the correct political proceedings were adopted, is law and therefore whatever the state says is law, is law.137 _{Following the legal positivism}

philosophy, by shifting the criminal justice from only the retributive/utilitarian paradigm to also include the restorative paradigm, the state would have to enforce individual rights via, for example, the recovery of individual damages.138

Moreover, since internal aspiration to do the morally right thing, community values and fear of community’s disapproval are among the most important elements of compliance with law,139 _{a criminal justice system that is also guided}

by the restorative justice paradigm is strengthened.

The previous arguments justified/justify, from a philosophical perspective, the shift from a criminal justice system exclusively led by retributive/utilitarian paradigms to a system led by mixed paradigms as it incorporates restorative justice elements and, thus, is also led by the restorative justice paradigm. Through the inclusion of restorative justice elements, the deficiencies of criminal justice system may to an important extent be amended. Thus, as powerfully illustrated by Zehr, whereas justice only led by retributive/utilitarian paradigms was envisioned as the blindfolded goddess with balance in hand and impersonal, by the incorporation of restorative justice

133 _{Barnett (1977) 298.}

134 _{Ibid., Loc. cit.} 135 _{Ibid., 298-299.}

136 _{As for natural law theory see, e.g., John Finnis, ‘Natural Law and Legal Reasoning’ (1990) 38} Cleveland State Law Review 1. As for constructive interpretivism see, e.g., Ronald Dworkin, ‘Law as Interpretation’ (1982) 60 Texas Law Review 527. As for legal positivism see, e.g., H.L.A Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harvard Law Review 593; Joseph Raz, ‘Authority, Law and Morality’ (1985) 68 Monist 295.

137 _{Barnett (1977) 301.} 138 _{Ibid., Loc. cit.}

139 _{Zvi Gabbay, ‘Justifying Restorative Justice: A Theoretical Justification for the Use of Restorative} Justice Practices’ (2005) 2 Journal of Dispute Resolution 349, 387.

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paradigm elements to the criminal system, justice may be imagined as healing a wound.140