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Repressive, restorative and reflexive criminal law

Nielsen, Beth Grothe
June 4, 2015

Source: (2001) In Victim policies and criminal justice on the road to restorative justice: Essays in honour of Tony Peters, ed. E. Fattah and S. Parmentier, 145-165. With an introduction by E. Fattah and S. Parmentier. Leuven, Belgium: Leuven University Press.

Beth Nielsen maintains that, on the one hand, modern “grand theoriesâ€? on legal evolution and the relationship between law and society do not generally treat criminal law as an example, perhaps because it is assumed that criminal law has little developed since its classical articulation. Specific theories about criminal law, on the other hand, tend to focus on particular issues such as the nature, rationale, and legitimization of punishment. In either instance, there is insufficient theoretical consideration of the nature, purpose, and development of criminal law. Nielsen observes, in this context, that the inclusion of certain acts as criminal, and the omission of others, depends on diverse historical, political, social, and economic factors. This leads to the argument of Nils Jareborg, namely, that the modern emphasis on incarceration as a solution to social problems is in itself a serious criminal policy problem, a problem in need of a paradigm shift. This emphasis is part of a development from a “defensive criminal law modelâ€? (concerned with protecting the individual against abuse of power by other people and by the state) to an “offensive criminal law modelâ€? (characterized by recourse to criminal sanctions to solve all sorts of behaviors deemed social problems). With all of this in mind, Nielsen reflects on theories about law in terms of repressive, restorative, and reflexive views of law.


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