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Restorative Justice: Public and Punitive

Kaptein, Hendrik
June 4, 2015

Source: (2001) In, Brian Williams (ed.), Reparation And Victim-Focused Social Work (pp 34-44). London, UK: Jessica Kingsley Publishers.

Two well-known and related criticisms against restorative justice in criminal law concern a supposed lack of punitive character of restorative measures and a supposed absence of the state and general interests as primarily important factors in criminal law. Indeed, from times before the Enlightenment criminal law and punishment are regarded as having to do exclusively with relationships between disobedient individuals and the state, ousting victims of crime from criminal procedure and its possible consequences. Against this, restorative justice stresses the importance of victims receiving their dues. In restorative conceptions offender-state relationships seem to be replaced by offender-victim relationships, possibly endangering essential public functions of criminal law. Such criticism may hold good if restorative justice in criminal law is modeled according to mediation, civil law damages and related measures. However important such measures may be, restorative justice does not exclude compensation for grave harm done to victims by penal servitude to be effected by offenders. For example: symbolic and material compensation and reparation for victims of gross maltreatment may be effected through paid labor by Actually, in more than a few legal orders something of this is appeaning, in cases of harm done to general interests as well, harm to be compensated for by the rewards of some or other public service to be performed by offenders. Such penal servitude, indeed not excluding mere damages etc. for lesser offenses, may not be unproblematic, but is clearly punitive. Offenders are made to suffer, albeit in a constructive and restorative fashion.


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