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RJ as punitive public law (abstract).

Kaptein, Hendrik
June 4, 2015

Source: (2004) Papers presented at the Third Conference of the European Forum for Victim-Offender Mediation and Restorative Justice, ‘Restorative Justice in Europe: Where are we heading?’, Budapest, Hungary, 14-16 October. Downloaded 22 September 2005.

Opposition to RJ is often motivated by its supposedly fatal lack of punitive and ‘public’ force. Apologies,
reconciliation, atonement, payment of damages etc. are regarded as informal or civil law-like remedies at best,
lacking the supposedly essentially punitive character of criminal law measures, just as reducing the ‘resolution’
of crime to relationships of victims and offenders is taken to come down to misguided privatisation, or wrongheaded
exclusion from criminal procedure of the rest of citizenship.
Against such and other criticisms of RJ, basic ideas of ‘civilised criminal law’ may be developed. An attempt is
made to base criminal procedure and punishment on principles of moral psychology transcending criminal law,
concerning relationships between actorship, wrongful harm, resentment, apologies, retribution as reparation,
and reconciliation. Reparation by offenders is regarded as essential for restoration of respect and self-respect.
Punishment as mere infliction of pain must be done away with, to be replaced by penal servitude, in the sense
of: reparation of harm done by offenders’ own efforts. Such penal servitude is taken to be the constructive core
idea of retribution as integration of forfeit, punishment and restitution. Offenders’ pain is no more than a
probably not unwelcome by-product, then, in restoration of original positions for all concerned. In this way, RJ
may still be punitive in a sensible way. The essentially public nature of such civilised criminal law is expressed by
the state’s coercion of penal servitude, to be determined in public trial and in the name of the people, as an
expression of moral resentment against offenders and compassion with victims. Crimes against general interests
may be compensated for by penal servitude as well. Still, the possibilities of informal criminal conflict resolution
ought not to go unheeded, if apposite.
Thus regarded, and apart from its much superior kinds of sanctions, civilised criminal law is not completely
different from current criminal law, thus offering fruitful possibilities for piecemeal reform. Author’s abstract.


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