Abstract
AbstractProblem-solving justice is analysed in terms of democratic theory about the conditions under which courts are justified in applying coercive sanctions. The guilty plea process forces defendants to forego evidentiary proof and accept treatment and surveillance. All problem-solving ‘courts', which actually are corrections agencies, operate this way. This violates the legitimating triadic structure in which judges adjudicate, not medicate. Two popular problem-solving models are therapeutic justice and restorative justice. The therapeutic model is individualistic and emphasises personal responsibility, consistent with neoliberal penality. The restorative model is socially and communally oriented, but in practice it must be legally constrained from applying unwise popular prejudices. Habermas's theory of communicative action and discourse ethics of democratic deliberation presents an alternative to both models. Communicative interaction implies a commitment to factual truth, sincerity, and normativity ...
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