From Retribution to Restoration

This paper is based on research carried out in Northern Uganda on the negotiation between retributive and restorative justice in conflict transformation. The findings show that in the daily lives of survivors of sexual and gender based violence (SGBV) in post-conflict northern Uganda, retributive and restorative justice systems are not used as mutually exclusive mechanisms for seeking justice. Rather, they are constantly negotiated. Children and other stakeholders in post-conflict settings pragmatically choose to apply aspects of each justice system to serve their own goals. In the real life experience of these survivors and their families, the two systems are interconnected and interdependent. Their boundaries, therefore, seem to be porous; “places of meeting and exchange rather than walls of protection against each other”(Jordan J, Hartling L, New developments in relational-cultural theory. In: Ballou M, Brown L(eds) Rethinking mental health and disorder. Guilford Press, New York, 2002: 8). In the daily lives of children and their caretakers in post-conflict settings, it is a fallacy to imagine that retributive and restorative justice systems are working independent of each other. In other words, when each system operates independent of the other, it becomes incomplete as an explanatory model for justice in the context of the survivors and their families. This chapter demonstrates how people, especially survivors of SGBV and their families in Northern Uganda, negotiate between retributive and restorative justice in an effort to access justice. This chapter further explores whether an ingenious hybrid of retributive and restorative justice can creatively contribute to the achievement of justice for the survivors and their families. It also explores the extent to which the process of negotiating between the two justice systems may create space for impunity. The chapter concludes that although nurturing a hybrid justice system creates opportunities for participation and ownership of processes and outcomes by the victims/survivors and perpetrators of atrocities and their families, care must be taken to ensure that the best interests of the survivors and their rights are not compromised.

The emergence of restorative justice as an alternative model to Western, court-based criminal justice may have important implications for the psychology of justice. It is proposed that two different notions of justice affect responses to rule-breaking: restorative and retributive justice. Retributive justice essentially refers to the repair of justice through unilateral imposition of punishment, whereas restorative justice means the repair of justice through reaffirming a shared value-consensus in a bilateral process. Among the symbolic implications of transgressions, concerns about status and power are primarily related to retributive justice and concerns about shared values are primarily related to restorative justice. At the core of these processes, however, lies the parties' construal of their identity relation, specifically whether or not respondents perceive to share an identity with the offender. The specific case of intergroup transgressions is discussed, as are implications for future research on restoring a sense of justice after rule-breaking.

What’s Love Got to Do with It?

This interdisciplinary qualitative research on Uganda combines an empirical approach with an analysis of theoretical studies. It argues that the retributive-oriented state justice system should take a more hybrid approach by absorbing the restorative method of traditional justice systems arbitrated by community leaders to improve the way sexual and gender-based violence (SGBV) cases of refugees and asylum-seekers are addressed. The goal is to examine the interlinkages of restorative and retributive justice and why both systems should be better integrated to enhance ways of addressing SGBV. It is argued that there will be a positive impact on people in Uganda, including refugees who have suffered SGBV, if such an integration of both systems occurs. Drawing from interviews, it uses a theoretical framework of direct, structural and cultural violence within the continuum of violence. In this context, the study argues for a hybrid approach to depatriarchalize domestic justice systems, whether retributive or restorative justice, to contribute to better and more victim-friendly systems that consider the views and hopes of SGBV survivors.

Restorative justice is a philosophical framework that offers a different perspective on crime and criminal justice. It presents a new way of thinking about crime and how to respond to it. In other words, restorative justice is a process by which the parties involved decide how to address the consequences of a specific crime. Furthermore, restorative justice seeks to repair what has been violated. It is a form of justice (pertaining to criminal matters) based on "reparation," meaning that efforts should be made to repair the severe impacts of the crime and the resulting damages, either completely or symbolically. Since crime wounds the conscience of society, the justice system aims to mend the damages caused, and the parties are allowed to participate in this process. Retributive justice, which focuses on the crime, and rehabilitative justice, which focuses on the offender, are both known as the classic or traditional models of criminal justice. In recent decades, they have faced various criticisms regarding their efficiency and performance. The traditional (classic) criminal justice system faces significant limitations and challenges, increasing the demand for its reform and change. Both nationally and internationally, this system encounters fundamental criticisms. Some criminologists and jurists have sought to replace the classic criminal justice system, introducing a new system called "restorative justice" into the fields of criminology and criminal law. Restorative justice is a new and yet ancient and deep-rooted model of criminal justice that has been revitalized since the 1970s and 1980s. According to scholars, the inclination towards restorative justice in recent decades is due to the criminal justice system's inability to control delinquency through both retribution and rehabilitation, highlighted by the sudden and regrettable increase in crime rates. This raised fundamental questions about the traditional criminal justice system's and governments' capacity to control delinquency. Moreover, government officials have realized that crime control extends beyond the capabilities of the state in two significant and distinct ways: 1) The capacity of state criminal justice institutions is severely limited, and 2) there are control mechanisms that operate outside state boundaries and are somewhat independent of state policies. These challenges have led to the creation and development of alternative methods and a redefinition of the state's role in criminal justice. Critics believe that retributive criminal justice has neglected or at least not given adequate roles to the victim, the offender, and society in favor of public authority through criminal laws. This research employs an analytical-descriptive methodology, is of an applied nature, and utilizes laws, regulations, and library resources, also having an educational aspect. The results indicate the necessity of replacing classic criminal justice with restorative justice by examining the mechanisms related to the administration of justice by relevant national and international institutions, particularly the United Nations, and national efforts in most countries. According to its proponents, restorative justice can resolve the conflict arising from the crime, as well as the resulting hostility, tension, and conflict between the victim and the offender within the community framework through mediation, negotiation, collective reconciliation, and various methods of repair and restoration.

This paper argues that our primary concern in responding to wrongdoing should be distinct from our concern with the just distribution of wealth: retributive justice serves an important moral end that is independent of the promotion of welfare. I proceed by comparing retributive justice to restorative justice, because the latter offers a paradigm often aimed at replacing retributive justice, and is more closely concerned with social justice. I suggest that there are different possible paradigms of restorative justice, that one which is closer to social justice is less plausible and that a more plausible model need not be in tension with retributive justice, but could rather fall under it. I do not, however, conclude that there is no relation between retributive and social justice; while they relate to importantly distinct moral claims, I provide reasons for thinking that the moral justification of our system of punishment depends on the existence of at least some measure of social justice. The aim of retributive justice is importantly distinct from the just distribution of wealth, but this distinct aim cannot be served without some degree of justice in the distribution of wealth.

PurposeThe purpose of this study is to examine the effect of supervisor’s unfair treatment on follower’s retributive and restorative justice perceptions. The main goal is to find asymmetric nonlinear trajectories in the relationship between the severity of unfair treatment and employees’ orientation toward retributive/restorative justice.Design/methodology/approachUsing an experimental policy-capturing design that varied five levels of transgression severity (none to very high) within supervisor–subordinate relationship injustice situations, 168 employees rated their retributive/restorative justice preferences. Latent growth curve modeling was used to fit the overall patterns of change.FindingsAs hypothesized, the trajectory of restorative justice was convex and progressed in a negative exponential shape, whereas the retributive justice trajectory was concave but followed a less steep positive exponential shape.Research limitations/implicationsThe main limitation is a threat to the external validity of the results. Scenario-based surveys may not fully generalize to actual organizational situations.Practical implicationsThese findings help managers to understand how unjust treatment can shape employees’ expectations and, thus, address it adequately. This is important to retain qualified personnel and to minimize workplace disengagement in the aftermath of poor treatment.Social implicationsRestorative justice is of great importance for minor and moderate violations of justice.Originality/valueBy illustrating different trajectories, this study extends research on restorative and retributive justice in organizations. The results help to understand when people expect restoration and are motivated to punish wrongdoers.

Retributive criminal justice, as expressed in criminal prosecutions, is not the only way to achieve accountability for criminal wrongdoing. An alternative is provided by the concept of restorative justice. Restorative justice focuses on repairing the harm caused by crime by responding to the needs of all stakeholders, including the perpetrator. It therefore constitutes a particularly well-suited approach to crimes committed by children. However, because restorative justice has been developed for “ordinary” crimes within domestic settings, it needs to be adapted to the situation of “extraordinary crimes”, i.e. crimes under international law, in transitional settings. The fourth chapter develops a new approach to achieve accountability for crimes under international law, which is called restorative transitional justice. The chapter begins with an analysis of restorative justice as a theoretical and practical concept, including its relationship to juvenile justice. It then explores the applicability of restorative justice in transitional settings and its suitability to address crimes under international law. Thereafter it turns towards developing the concept of restorative transitional justice and discussing its practical application. After establishing why restorative transitional justice constitutes an ideal approach to the situation of child soldiers, a variety of restorative transitional justice processes for child soldiers are analyzed on a theoretical and practical basis.

At the heart of our shared humanity lies the intrinsic value of human life—an irreplaceable essence that shapes the moral fabric of society. A humanistic and people-oriented society demands that retributive and restorative justice be reconciled. The commutation of the death sentence is one such extension. This paper challenges conventional narratives by exploring an alternative framework rooted in human dignity and potential. It delves into the death penalty through the lens of the capabilities approach, a framework developed by Amartya Sen and Martha Nussbaum that emphasises human dignity and well-being. By comparing retributive and restorative justice models, the paper argues for a more humane approach to justice that goes beyond mere punishment to consider the potential for rehabilitation and social healing. Retributive justice, which focuses on accountability, often neglects the broader impacts of capital punishment, while restorative justice emphasises the offender’s potential for change and the needs of victims and communities. The paper proposes introducing a capabilities test to assess whether the potential for personal development should guide sentencing away from capital punishment. This approach is crucial because it challenges the status quo in criminal justice, advocating for a system that respects human potential and promotes societal well-being. The significance of this scholarship also lies in its potential to reshape the legal landscape in countries where the death penalty remains a contentious issue. By linking the capabilities approach to criminal justice, and advocating for a greater incorporation of restorative justice within retributive systems, such as in India and Singapore, this paper offers a fresh perspective that could influence both policy and practice, making it a timely and necessary contribution to the global debate on capital punishment. This scholarship isn't just about theoretical exploration; it’s about envisioning a justice system that upholds human dignity at its core, an issue that remains deeply relevant today.

Sexual Assault and Restorative Justice

This article explores the relationship between retributive justice, restorative justice, and reconciliation. Using the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) as case studies, it begins by examining whether international war crimes tribunals, as dispensers of retributive justice, can contribute to reconciliation in post‐conflict societies. According to their supporters, international war crimes criminals can foster reconciliation in three principal ways: by seeing that justice is done; by establishing the truth about crimes committed; and by individualizing guilt. It will be argued that each of these claims is flawed. War crimes tribunals are an important part of the peace‐building process in post‐conflict societies but it is argued that the retributive justice they deliver is not the most effective means to promote reconciliation. The article’s core premise is that restorative justice has the greatest potential to initiate and further reconciliation and should, therefore, complement the administration of retributive justice. To demonstrate the value of restorative justice in practice, it provides some examples of restorative processes in Rwanda and in the former Yugoslavia.

The aim of this article is to explore ways in which community building can be integrated into the practices of juvenile justice work. It begins by discussing how the extent of community cohesion and societal resources at the neighbourhood level has a major bearing on the propensity of young people to engage in criminal and anti-social behaviour. The article then describes recent trends in the area of `restorative justice', in which the main focus is on individual offenders repairing social harm via juvenile conferencing and through active recompense measures. Following this, the article provides a model of what can be called `restorative social justice', one that builds upon the conferencing model by attempting to fuse social justice concerns with progressive juvenile justice practices. The article concludes by describing a range of interventions that might be adopted in areas such as youth crime prevention and youth sanctioning processes. The emphasis is on `good practice' examples of community building, drawing upon relevant case studies.

Intimate partner violence (IPV) and sexual violence (SV) are drivers of women's morbidity and mortality yet remain among the most underreported crimes in the United States. Understanding IPV/SV survivors' justice preferences and justice definitions can strengthen violence prevention and response systems. In-depth interviews were conducted with women who experienced past-year IPV (n = 26), to explore their justice preferences and recommendations. Primary themes included accountability, safety, and rehabilitation, with examples within and outside the current justice system, and across restorative and retributive justice frameworks. Women sought accountability through a variety of means. Retributive approaches like incarceration offered accountability as well as fleeting safety, but were critically limited in addressing the root causes of violence and, in some cases, were felt to exacerbate the problem. Women's expressed needs and preferences centered on restorative aspects of justice, including perpetrator's acknowledgment of harm, achieving physical safety and stability, and perpetrator rehabilitation through counseling. Paradoxically, women's safety-related justice goals both encouraged and discouraged their engagement in the formal justice system. The discordance between women's justice preferences and their perceptions and experiences within the current justice system illustrate complex and difficult trade-offs faced by survivors in achieving physical, social, and economic safety. Moreover, they likely contribute to the low levels of IPV/SV reporting to police. Women's goals were aligned with restorative justice principles, illustrating the value of this approach. In an era of unprecedented dialogue on justice reform, results provide direction for integrating restorative justice practices to strengthen the justice response to violence against women.

Criminal Justice and Sexual Violence: Need for Reforms

Whither society in restorative justice? Challenging citizenship and community building This article discusses the concepts of society and community involvement as they appeared in the articles of the Dutch-Flemish Tijdschrift voor Herstelrecht (Journal of Restorative Justice) during last 20 years. It shows how the journal from its very beginning adopted a strong focus on criminal justice reform, although restorative practices within the community occupied a considerable space in the consecutive volumes as well. Studies on restorative justice programmes in Belgium and The Netherlands, such as victim-offender mediation and family-group conferences, revealed a predominant orientation on interpersonal relationships stressing the role of the community of care. In the same sense, also community mediation and other community oriented restorative practices focus on the personal well-being of people and the improvement of personal and social relationships. Hence, both theory and practice face two important challenges in developing restorative justice: (1) which role to give to a larger community and how to operationalize its involvement, and (2) how to deal with underlying causes of crime and social-structural injustices? Referring to European action-research projects and to conceptual models developed outside Europe, a case is made for designing restorative justice methodologies and programmes involving civil society in a more encompassing way and linking micro to macro societal levels. Developing strategic alliances with new social movements could be the way forward.