Outlining the Shadow of the Axe—On Restorative Justice and the Use of Trial and Punishment

Abstract

Most proponents of restorative justice admit to the need to find a well defined place for the use of traditional trial and punishment alongside restorative justice processes. Concrete answers have, however, been wanting more often than not. John Braithwaite is arguably the one who has come the closest, and here I systematically reconstruct and critically discuss the rules or principles suggested by him for referring cases back and forth between restorative justice and traditional trial and punishment. I show that we should be sceptical about at least some of the answers provided by Braithwaite, and, thus, that the necessary use of traditional punishment continues to pose a serious challenge to restorative justice, even at its current theoretical best.

Why meta‐research matters to regulation and governance scholarship: An illustrative evidence synthesis of responsive regulation research

“…From a control‐centered ethics point of view (responsiveness to the institutional setting within which responsive regulation operates, see further Bryer (2007), responsive regulation may be problematic because regulators may too quickly embrace it as a rational, utilitarian tool (Baldwin & Black 2008). The presentation of a tit‐for‐tat strategy and the related regulatory pyramids, in particular, builds on the idea that targets of regulation will respond “rationally” (and predictably) to the escalation or de‐escalation of the regulator (von Holderstein Holterman 2009). Likewise, responsive regulation assumes that regulators will respond “rationally” (and predictably) to their targets.…”

“…A cluster of ethical issues concerns inconsistencies in the application of responsive regulation. From a discretionary ethics point of view (Bryer 2007), such inconsistencies are particularly problematic because the way in which regulators respond to a target's behavior is often largely outside the control of that target (von Holderstein Holterman 2009). Besides, external parties may seek to play the ambiguities of responsive regulation and to influence the relationship between regulators and their targets (Simpson 2013).…”

Retribution, restoration and the public dimension of serious wrongs

“…But, in general, by officially investigating a case and prosecuting alleged perpetrators the state empowers individuals to seek and obtain acknowledgement and redress for wrongs committed to them. In addition, the judicial resources the criminal law provides may help victims to obtain clarity, recognition and compensation (Holderstein Holtermann, 2009). In this sense, advocates of restorative justice may welcome part of the procedures of standard criminal justice.…”

The role of international criminal prosecutions in increasing compliance with international humanitarian law in contemporary African conflicts

“…On different, but related grounds, he asserts that the burden of proof is on those who deny the deterrent value of prosecution to show that this is the case. 83 His reason for doing so is that 'human beings are by and large instrumentally rational actors', and thus intuitively, the fear of prosecution ought to have an effect on behavior. 84 He has a point.…”