In Search of Restorative Jurisprudence

John Braithwaite, Australian National University

Restorative jurisprudence seems consequentionalist rather than deontological. Restoration, healing, repair of the harm seem to be good consequences rather than contraints to be honoured. Restorative jurisprudence decentres punishment. The 'right' punishment will usually be the wrong solution to the problem - have wrong consequences. Restorative jurisprudence has a radically different conception of responsibility. Responsibility is sought from the collective rather than just from the individual offender. Active, more than passive responsibility is the central ideal. Restorative jurisprudence may be rather Habermasian. It emphasises a certain view of the rule of law but also emphasises deliberative democracy. The justice of law in restorative jurisprudence bubbles up from the justice of the people. But the justice of the law must also filter down to set proper limits on the justice of the people to ensure that human rights are protected.

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Updated 05/20/2006