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Restorative Justice and the Morality of the Fair Trial: A Reply to Brochu.

Hildebrandt, Mireille
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. 89-100.

In this paper I will look into restorative justice from the perspective of the fair trial, as it developed over the past 200 years. For those who take the fair trial for granted this might seem a redundant exercise, that can only lead to a meaningless comparison based on the refusal to take restorative justice seriously on its own merits. My aim is, however, to acknowledge the particular and fragile character of the fair trial as a means to build checks and balances in the power-relationships between governments and their citizens. On top of that the fair trial is meant to assure publicity and transparency in a way that is instrumental for the goals of punishment, such authority of the violated legal norm. To be instrumental in this sense both prevention and retribution depend on publicity and transparency. While the rise of restorative practices might elucidate the shortcomings of the fair trial (and/or of the way it is practiced today) this should not prevent us from a critical evaluation of certain aspects of mediation in penal matters. (excerpt)


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