International Journal on Criminology Volume 1, Number 1, Fall 2013 | Page 20

Restorative Justice
victim’s everyday legal experience. 15 Victims of serious offenses, who are taken into
account throughout the penal process, particularly by Victim Services, contradict such
intellectual flimsiness. This construction of victimhood—based on supposed social
representations that are yet to be scientifically proven—in response to the law and order
approach, without epistemic reflection, is similar in its excesses to the most populist
penal claims.
In this context, restorative justice processes are likely to bring the work of justice
closer to fulfillment. Drawing from traditional practices, such measures offer the supreme
advantage of focusing both on punishing offenses and on repairing the harm done to
people, with a view to restoring the social peace that is seriously compromised by crime.
Based on the philosophical precept of “reintegrative shaming”, 16 in this regard restorative
justice intends to highlight the inacceptable nature of the offense committed and,
consubstantially, to assert the love that friends, family, and the community continue to
feel for the person who sincerely shoulders responsibility for the crime. Of course, it
may only be applied to infringements of essential social values (felonies), as the
treatment of antisocial behavior, breaches of social discipline, instances of deviance such
as maladjustment (now unfairly penalized) do not belong to the field of criminal justice.
2. The conceptual aspects of restorative justice
There are several definitions of restorative justice available, illustrating the creativity
encouraged by this alternative way of ensuring justice. 17 In concrete terms, it can be
characterized by several key criteria which in turn validate as restorative the measures it
promotes. Part of a dynamic process, restorative justice presupposes the voluntary
participation of all those who feel concerned by the criminal conflict, in the presence and
under the supervision of a “judicial third party” and, if necessary, of a “psychological
and/or social third party”. It requires the active involvement of each party in negotiations
to find the best solutions for all concerned which, through their increased sense of
responsibility, are likely to lead to restitution for all, and more broadly, to the restoration
of social harmony.
The operationalization of restorative justice measures causes a real epistemic shift, to
the undoubted benefit of the criminal justice system and in a fully complementary
manner. In the current model of criminal justice, crime is considered as an act prejudicial
to the State. The justice system focuses exclusively on the abstract responsibility of the
offender and on the offense committed, with the aim of applying the penalty provided for
by the law. Justice is viewed through an adversarial legal process with offenders and
victims remaining passive or even ignored. As such, positive law reduces "criminal
procedure to a technical matter". 18 The penalty provided by law is seen as fair in itself,
and compliance outweighs results.
According to the restorative philosophy, crime is an offense causing harm to people
and relationships. Consequently, the aim of the justice system is to identify the needs and
obligations of each protagonist. Justice is understood as a process that actively involves
all individuals concerned. Dialog is used to foster reciprocity and the sharing of
emotions. Each stakeholder is encouraged to take practical responsibility, leading to a
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15 . See Cario, Qui a peur des victimes?, in AJPénal, Dalloz, 2004-12, 434-436; AJPénal, 2009-12,
491-494.
16 . J. Braithwaite, Crime, Shame and Reintegration (1989) (Cambridge University Press, 1999).
17 T. De Villette, Faire justice autrement. Le défi des rencontres entre détenus et victimes,
Médiaspaul, 2009; Cario, La justice restaurative, 74 et seq.
18 A. Garapon, D. Salas, Les nouvelles sorcières de Salem. Leçons d’Outreau, Seuil, 2007, 138.
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