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Deriving Restorative Justice from Retributivism.

Gildert, Robin Scott
June 4, 2015

Source: (2002) Ph.D. dissertation, Philosophy, Faculty of Graduate Studies, University of Western Ontario, London, Ontario, Canada.

I argue that morality requires us to implement a system of restorative justice as a response to the crimes of many offenders. This claim is not novel, but the path I take to show the necessity is. I argue that the justification of a state’s response to a criminal’s offending is based on an accounting of three generally accepted principles—proportionality, treating like cases alike, and accountability. These principles are based in a conception of human beings endowed with a high and equal moral worth. Most utilitarian and deontologists accept that human beings have a high moral worth. Moreover, the three principles are also generally accepted as integral components of a theory of punishment. I claim that if a theory of punishment fails to be consistent with these principles then that theory will fail as a justification of punishment. Next, I argue that an interpretation of the three principles is best understood from a broadly retributive perspective, to be seen as a test to determine whether or not we are giving people what they deserve. I will argue that our worth as human beings is best recognized when we give people what they deserve. Thus, the moral requirement to implement a system of restorative justice rests on a fundamental retributive requirement. It is here where my work departs from most work on retributivism or restorative justice. It is often argued that restorative justice and retributivism are mutually exclusive. Retributivism requires that people get the punishment they deserve regardless of the consequence while restorative justice requires that offenders be treated in a manner that restores the relationship between them, their victims and their communities regardless of what offenders deserve. These are erroneous assumptions as punishment is not always deserved as a response to criminal wrongdoing. Instead, to maintain a consistency with our principles, punishment is often precluded as a response to criminal wrongdoing. However, a response to offending is still required. In these instances I will argue that we ought to implement a system of restorative justice to give people what they deserve and remain consistent with our principles. Author’s abstract.


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