Formality of Informality. The Role of Legislation Concerning Restorative Justice Practices.

Source: (2005) Essay for the Seminar on Mediation and Restorative Justice. Catholic University of Leuven.

The initial question that is evolving from the title is whether we need legislation
concerning restorative justice, and if so, why. If we are successful in answering this question
and systemising the reasons behind our answer, the following issue that is coming up is
whether our argument is valid in any context or not. If not, it would serve as a sign that there
are more underlying aspects behind our argument concerning the legislation of restorative
justice.
Translating this abstract introduction into more concrete terms, the following essay
will firstly discuss the reasons behind my argument pointing out that legislation is necessary in
any justice system applying restorative practices. Following discussing the ‘pro-legislation’
aspects, I intend to sketch some of the possible dangers that have to be taken into
consideration while designing any legislative framework. As a consequence, the final part of
the essay will highlight those issues that, in my opinion, have even more underlying roles
concerning the effective application of restorative justice than merely the emphasis on legal
framework. Namely, in the final section the necessity of a broader approach in
implementation issues will be discussed. Accordingly, I intend to argue that besides
legislation we also need to focus on realising a suitable institutional as well as cultural framework
in a society in order to find the place for restorative interventions in any justice system. If we
forget this broader context and only consider the necessary legislative aspects, we can easily
‘loose the wood for the trees’. (excerpt)