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Punishment, Restorative Justice, and Morality of Law: Concluding Observations.

Foqué, René
June 4, 2015

Source: (2005) In Erik Claes, René Foqué, and Tony Peters, eds., Punishment, Restorative Justice and the Morality of Law. Antwerp; Oxford: Intersentia. Pp. 183-198.

The tension often felt in practice between the repressive character of criminal law on the one hand and the more horizontal, humanizing claims of restorative justice on the other, confronts us with a serious conceptual and theoretical deficit. What is needed is a more refined conception of law than that offered by a purely repressive interpretation of law. The latter risks becoming the victim of an ill-considered spiral of fault and penalty, one which is not so seldom tossed on the stormy pragmatic and populist seas of an uncompromising politics of crime-fighting. A more refined interpretation of law, one which can mobilize sufficient critical potential against a similar, somewhat naïve (but in its naïveté often successful) repressive image of the law, will have to transcend the practices of criminal justice in order to be able to assess and guide it in critical fashion. In other words, it will have to form part of a normative theory of law, one which is transcendent over individual case precedents. (excerpt).


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