The ethical foundations of restorative justice

Restorative Justice offers a promising new approach for dealing with crimes in modern societies. There has been a considerable amount of research on the topic, yet much of this work has been done with limited reference to the discussions in political philosophy and the philosophy of punishment. This neglect means that there are still significant theoretical challenges facing the theory behind restorative justice. This thesis places restorative justice within the larger philosophical context and develops the necessary framework for restorative justice as a theory of criminal justice. The thesis beings by examining traditional justifications for punishment, as given by consequentialists and retributivists. The consequentialist justifications fall prey to empirical questions regarding the effectiveness of punishment in achieving the aim of prevention and theoretical objections to consequentialist theories. Retributivism is able to avoid the problems that face consequentialist theories, but the justification for punishment that it offers fails to prove that punishment is always necessary, and it is particularly problematic in non-ideal societies. Thus, while punishment is permissible in response to crime, it is not an obligation. The first step in the argument for restorative justice is to examine two approaches to desert in responding to crime. The approach advocated treats desert as a fluid and relational concept based on the conception of social justice known as democratic equality. The thesis then identifies three crucial aspects to the accounts of restorative justice that have been given in the literature. These are the theories of personhood and crime that restorative justice relies upon and the role that punishment and retribution play in restorative justice. The thesis argues that reliance on a relational conception of personhood is unnecessary and advocates justifying restorative justice on the basis of the conception of social justice. The thesis then examines traditional theories of crime and compares them to the relational understanding offered by proponents of restorative justice. The relational understanding is advocated based on its ability to provide a single principle of criminalisation that relies upon the more general theory of social justice within liberal egalitarian society. The place of punishment and retribution in restorative justice is then examined. I argue that neither concept is necessarily included or excluded from such processes, but that there are legitimate reasons to be concerned about the coerciveness of restorative practices. The thesis concludes by examining the type of system that the theory advocated could support in the current social context. In light of the worries about the coerciveness of restorative proposals and the inappropriateness of a restorative response to all instances of crime a multifaceted system is advocated. This system would treat restoration as the preferred response, while providing responses in situations where restoration is not appropriate and where due process concerns require a more traditional approach. It is argued that such a system would be a significant improvement over current practices and more in line with the conception of social justice as democratic equality