Restorative and Responsive Justice for the Whole of Law

Source: (2002) Presentation to the Quinnipiac-Yale Dispute Resolution Workshop, New haven 29 April.

As Braithwaite observes, restorative justice is a concept discussed principally in the spheres of criminal law and transitional justice, whereas responsive regulation is discussed principally in the sphere of business. In this paper, as in his book Restorative Justice and Responsive Regulation (2002), Braithwaite argues for a marriage of the two traditions as a whole of law approach. The core idea of restorative justice is that injustice harms; hence, justice should heal. Healing is more likely when there is undominated deliberation among the stakeholders about effects of the harm and appropriate actions to right the wrong. The core idea of responsive regulation is that regulation should be responsive to the motivational postures of the regulated, to their actual conduct, and to structural facts about regulated markets. Moreover, responsive regulation is more likely to work when legally pluralist deliberative institutions engage multiple stakeholders in addressing problems. With all of this in mind, Braithwaite discusses the “whole of lawâ€? hypothesis; deterrence, incapacitation, and relational disputes; the pragmatics of legal system transformation; and restorative and responsive justice in relation to power imbalances in justice systems.