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How restorative justice fits with an adversarial system

5 May 2023

| Author: Leslie Thomas KC

I want to come back to the question I asked: does the adversarial system serve us well? You might think that my discussion so far has been somewhat conservative and Eurocentric. After all, I’ve talked about only the English adversarial model and the French inquisitorial model. Both are essentially European ideals of justice, although the legacy of colonialism means they have been exported to every part of the world. What about other conceptions of justice that are rooted in other traditions?

As I have stated earlier, the adversarial system of justice has been criticised for being overly focused on winning and losing rather than promoting justice. This has led to calls for alternative models that prioritise collaboration and restoration over confrontation and punishment.

Restorative justice

Restorative justice is a victim-centered approach that focuses on repairing the harm caused by the offence rather than punishing the offender. In a restorative justice model, victims, offenders and community members come together to discuss the harm that has been caused and work together to find a way to repair that harm.

It has several potential benefits. It can provide victims with a greater sense of closure and satisfaction than traditional criminal justice processes. It can reduce recidivism rates by addressing the underlying causes of criminal behaviour. It can foster a sense of community and promote healing among those affected by the offence.

Some forms of restorative justice are rooted in non- Western traditions and have been heralded as an antidote to the punitive and fault-based European tradition. As Archbishop Desmond Tutu said:

“We contend that there is another kind of justice, restorative justice, which has characteristics of traditional African jurisprudence. Here the central concern is not retribution or punishment but, in the spirit of ubuntu, the healing of breaches, the redressing of imbalances, the restoration of broken relationships. This kind of justice seeks to rehabilitate both victim and the perpetrator, who should be given the opportunity to be reintegrated into the community [they have] injured by [their] offence.”

Around the world, restorative justice has increasingly been recognised in law, not as a replacement for the judicial system but as an adjunct to it. There are numerous examples of programs in the criminal justice system. In some instances, criminal cases are referred to a restorative justice process as an alternative to prosecution. In other cases, a restorative justice process takes place prior to sentence and is taken into account in sentencing.

In New Zealand, the Māori have been using restorative justice practices in their communities for centuries. Another example from the UK is the Youth Conference Service in Northern Ireland, introduced in 2003.

The Navajo Nation Peacemaker Program is a good example of a non-Western, non-adversarial tradition of justice coexisting with the formal judicial system. Within the Navajo Nation, the program coexists with the formal tribal court system. As described by the judicial branch of the Navajo Nation in 2004, the role of the peacemaker is “to bring parties together to talk out disputes and to reach a consensual agreement. A peacemaker is not an adjudicator and does not sit in judgment, rather [they facilitate and guide] disputing parties to reach and decide for themselves.”

Although rooted in a particular cultural tradition, the Navajo Peacemaker Program has inspired initiatives elsewhere. Another example of voluntary dispute resolution in a non-Western cultural context is the Peace and Consensus Committees of Rojava, which respond to crime and conflict by seeking to reach a consensus between the parties. There are also separate women’s committees which deal with violence against women.

Limitations

For those of us who are worried about the impact of the carceral justice system on marginalised people and communities, restorative justice and peacemaking are very attractive options. Clearly, these programs have a great deal of promise in resolving conflicts and addressing harms outside the formal justice system. However, it is important to note that restorative justice processes have certain limitations. Restorative justice is not appropriate for all cases, particularly those involving serious offences or repeat offenders.

In these cases, the harm caused may be too severe or the offender may be unrepentant, making it difficult to achieve a meaningful restoration of relationships. Moreover, restorative justice requires a willingness to participate from both the offender and the victim. It is also not designed to settle factual disputes. It isn’t equipped to deal with a situation where the accused denies that they did what they are accused of.

Second, some feminists have been critical of the use of restorative justice in the context of sexual and gender-based violence on the ground that it might serve as an opportunity for the abuser to re-victimise and re-traumatise the victim and might not lead to effective action being taken against the perpetrator to protect other victims.

On the other hand, this is not to say that restorative justice is always inappropriate for cases of sexual and gender-based violence. As I highlighted earlier, Rojava has adopted a system of women’s peace committees that deal with violence against women. And in the West, other feminist legal scholars have identified a positive case for restorative justice in some cases of sexual and gender-based violence.

It is also important to note that implementing restorative justice can be challenging in large, complex legal systems where resources may be limited and there may be resistance to change from those invested in the existing system. What can we learn from all of this? Restorative justice remains a promising alternative to traditional punitive approaches in cases where it is feasible and appropriate. We can say that restorative justice and peacemaking models have significant advantages as an alternative to punitive justice. But they aren’t suitable for every case. And in the places where they have been deployed on a large scale, they have tended not to be a replacement for the traditional justice system but an adjunct to it.

While these alternative models of justice have their own advantages and disadvantages, they all share a focus on collaboration, problem-solving and community involvement, rather than adversarialism and punishment. There are also more radical alternatives. Some people on the anti-carceral left, who believe in the full abolition of police and prisons, have instead adopted the idea of “transformative justice” which rejects this kind of integration into the carceral system. That’s a whole complex topic in itself, with several arguments for and against.

Conclusion

In conclusion, the adversarial system of justice in England and Wales has numerous flaws that have been extensively discussed in this series over the past three weeks. While it can be effective in certain cases, it is not universally effective in getting to the truth and it can become profoundly unfair when one party is unrepresented or there is a significant inequality of resources between the parties.

However, we should be cautious about replacing it with another system, as the inquisitorial system may not necessarily lead to fairer trials or better outcomes. We should also be sceptical of the belief that continental European systems are superior to our own.

Restorative justice and peacemaking should be embraced but it is important to recognise that they are not appropriate in every case and are not a complete replacement for the adversarial system. In many cases, we still need a means of resolving factual disputes and deciding who is telling the truth.

Therefore, mitigating some of the adversarial system’s problems by increasing legal aid funding significantly is the most effective measure when it comes to mitigating inequality of arms. We must also strive to address the systemic biases and inequalities present in the current system and work towards more equitable and just outcomes for all parties involved. ■

Professor Leslie Thomas KC is a lecturer at Gresham College in central London ■

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