Ch. 9 - Republican Theory and Restorative Justice

Restorative Justice

A process for resolving crime and conflicts that focuses on redressing the harms caused to victims while holding offenders accountable for their actions and engaging the community in a conflict resolution process.

• Victim and offender are treated as members of the community.

• Interaction between offenders and the victims.

Republican Theory

It sees justice as restoring people to their status as free and equal citizens by preventing and repairing domination caused by crime. Seeks to reform, or reshape major institutions.

Focus is place on:

• Restorative justice: Victims regain a voice and power, offenders must acknowledge harm and make amends.

• Victim-offender mediation: Conflict is handled through dialogue, the outcome is mutually agreed and not imposed, the process avoid the state being overly controlling or dominating.

Normative Framework

A set of values and principles about how things should be, not just how they are. A moral blueprint for designing a fair criminal justice system.

Under republicanism, the theory is setting standards for:

• What a good society looks like.

• How the criminal justice system should operate.

• What values should guide laws and institutions.

Reintegrative Shaming

Braithwaite’s shaming theory posits that reintegrative shaming, a process by which the offender is shamed for his or her actions and then is welcomed back into the community, inhibits future misbehaviour.

• He also argues that those who participate in the shaming process are less likely to misbehave in the first place.

• Sits at the centre of restorative justice.

  • Dealing with offenders and victims in positive ways over punitive responses.

Where Does Republican Theory Come From?

Comes from a long historical tradition of thinking about liberty and freedom, rooted in Republicanism. The main idea across the different eras is individual freedom, not being under the control of others (non-domination).

Developed over a period of time:

• Ancient Rome: Ideas about citizenship and freedom vs. slavery.

• Northern Italian republics (medieval/renaissance): Emphasis on civic participation and self-government.

• 17th century England: During the English Civil War, debates about power, rights, and liberty.

• 18th century during the American Revolution: Focus on freedom from domination by rulers.

When Did Republican Theory Emerge?

• Historical roots: Originates in Ancient Rome (around 500 BCE onward). Developed over centuries through political philosophy.

• Modern republican theory (what your course is likely referring to): Late 20th century (1980s–1990s). Revived and developed by scholars like Philip Pettit and John Braithwaite.

  • 1990 - 1993

Negative Liberty

Being free from interference by others, a concept of freedom.

• You are free if no one is stopping you from doing what you want

• Freedom = absence of external constraints (like laws, force, or control by others

Rehabilitation

An attempt to change or reform a convicted person so that he or she will not commit another criminal act.

• This emerged from retributivists claims.

• This was related to the to the fact that preventative measures had not worked, been unjust and indeterminate sentences had been wrongly applied.

Retributivists (Retributive Justice) Theory

Punish because it is deserved, and do it fairly.

Believe that people should be punished because they deserve it for committing a crime. Focus is on fair, proportionate punishment (justice = “just deserts”). Main concern is justice and fairness, not charging the offender.

• They argue that rehabilitation and treatment:

  • Didn’t work

  • Could be unfair or abusive

• They criticize things like indeterminate sentences (uncertain release dates)

Preventivists (Crime Prevention Theory)

Punish crime to deter future crime.

Believe that the goal of punishment is to prevent future crime. They supported strategies aimed at reforming offenders and reducing overall crime.

This includes:

• Rehabilitation (changing the offender)

• Deterrence (scaring others from offending)

• Incapacitation (locking people up so they can’t reoffend)

Republican Theory Elements

• Denial of domination: Laws should prevent people from having power over others

• Impact of crime: Affects the freedom (dominion) of victim, offender, and community

• Cause of crime: Weak conscience + lack of social bonds (low interdependence)

• Social context: Individualistic society with low Communitarianism limits people’s development

• Responsibility: Behaviour is partly personal choice and partly shaped by social conditions

• Response to crime: Use reintegrative shaming and the least restrictive punishment

• Goal: Promote shared values and strengthen community (communitarianism)

• Practice: Use restorative processes like Victim–Offender Mediation and family group conferences.

Braithwaite and Pettit (1990) Two Implications

Crime damages a person’s freedom (their control over their life), and the justice system should focus on restoring that freedom, not just punishing. These scholars are against the retributivist theory because it calls for harsher sentencing, as this approach has implications for society overall.

• The justice system should be designed to help people have control over their own lives. It means that we need to protect other people’s freedom, and do not let others (or the state) control them unfairly.

  • Goal of republican liberty, and personal dominion.

• A theory of justice should cover everything, not just punishment. Thinking about the entire justice system, not just one part.

Utilitarianism

A family of normative ethical theories that prescribe actions that maximize happiness and well-being for all affected individuals.

3 Things Sentencing Should Do (Republican Approach)

When someone commits a crime, it harms freedom (dominion). So sentencing should focus on fixing that harm in three ways.

1. Respect the victim: The offender must admit the victim has rights and freedom. Acknowledge what they did was wrong. This restores the victim’s dignity.

2. Repair the damage: The offender should make up for the harm (e.g., apology, compensation). Helps restore what was lost.

3. Reassure the community: The offender must show they won’t do it again. Helps people feel safe and trust the system. This restores confidence in society.

Dominion

A person’s ability to control their own life and act freely without being dominated or interfered with by others. Dominion means personal freedom and independence. When a crime happens, someone’s dominion is harmed. Example: theft, assault, etc. take away control, safety, or choice. The goal of the justice system, restore that dominion.

• Comes from the Republican liberty approach.