Restorative Justice and the law

Source: (2007) In Robert Mackay, Marko Bosnjak, Johann Deklerck, Christa Pelikan, Bas van Stokkom, and Martin Wright, ed., Images of Restorative Justice Theory. Frankfurt, Germany: Verlag fur Polizeiwissenschaft. Pp. 129-150.

“…He follows the path set by Marko Bosnjak, initially carrying out an analysis of the potential and the achievements of criminal law; he mentions carrying out investigations, giving orientation and guidance regarding right and wrong and dwells more extensively on law’s role to provide a last resort if restorative justice is unavailing in a case. After this he gives an account of the potential role of state law, including the political importance of democratic rule-making, i.e. defining both crimes and the processes of law enforcement. Finally, the role of punishment is interpreted as serving as a background threat, thus enabling alternative conflict resolution to evolve ‘in the shadow of the Leviathan’. Hartmann then draws special attention to the inherent drawbacks of all these functions. From there the author takes the reverse perspective and asks whether restorative justice meets basic indispensable principles of criminal law. He deals with the presumption of innocence, stating that at least within the diversionary mode of victim-offender mediation and conferencing in mainland Europe it is not violated at all. He then discusses at some length the principle of proportionality – having recourse to debates among legal theorists. The principles of impartiality and independence are addressed, and finally once more, the issue of punishment and alternatives to punishment. At that point Hartmann opts for a model for the relationship between restorative justice and criminal law which he characterises as ‘resonance’, a kind of mutual recognition and influence between the two methods of dealing with conflict and with crime.” (Editor’s abstract)