Models of Justice: Retributive vs Restorative CLN4U

Retributive Justice Broad focus: crimes are against the state/society Broad focus: crimes are against the state/society Emphasis on punishing those who have committed crimes Emphasis on punishing those who have committed crimes The punishment should fit the crime The punishment should fit the crime

Kant’s Debt Metaphor Citizens in a society enjoy the benefits of a rule of law Citizens in a society enjoy the benefits of a rule of law According to the principle of fair play, the loyal citizen must do their part in this system of reciprocal restraint According to the principle of fair play, the loyal citizen must do their part in this system of reciprocal restraint An individual who seeks the benefits of living under the rule of law without being willing to make the necessary sacrifices of self-restraint is a free rider An individual who seeks the benefits of living under the rule of law without being willing to make the necessary sacrifices of self-restraint is a free rider They’ve helped themselves to unfair advantages, and the state needs to prevent this to preserve the rule of law They’ve helped themselves to unfair advantages, and the state needs to prevent this to preserve the rule of law

Kant’s Debt Metaphor In cases of wrongdoing, someone who merits certain benefits has lost them, while someone who does not deserve those benefits has gained them In cases of wrongdoing, someone who merits certain benefits has lost them, while someone who does not deserve those benefits has gained them Punishment "removes the undeserved benefit by imposing a penalty that in some sense balances the harm inflicted by the offense.“ Punishment "removes the undeserved benefit by imposing a penalty that in some sense balances the harm inflicted by the offense.“ It is suffered as a debt that the wrongdoer owes their fellow citizens It is suffered as a debt that the wrongdoer owes their fellow citizens

Restorative Justice Rights-based approach focusing on peaceful resolution of wrongs Rights-based approach focusing on peaceful resolution of wrongs Not so much based on punishing the offender, but on having the offender set things right by recognizing, accepting, and taking real responsibility for their actions Not so much based on punishing the offender, but on having the offender set things right by recognizing, accepting, and taking real responsibility for their actions Similar to Aboriginal concept of “Healing” Justice: healing the wrong in a cooperative manner Similar to Aboriginal concept of “Healing” Justice: healing the wrong in a cooperative manner

What’s on the Test Theories of Crime: Biological vs. Sociological Theories of Crime: Biological vs. Sociological Elements of Crime – subcategories Elements of Crime – subcategories Federal vs. Provincial Roles Federal vs. Provincial Roles Types of Offences Types of Offences Relationship between Criminal Law & Morality Relationship between Criminal Law & Morality

Criminal Process – Procedural Law & Justice Criminal Process – Procedural Law & Justice Police Investigations Police Investigations Powers of Arrests & Detention Powers of Arrests & Detention Reasonable Grounds – S.8 Reasonable Grounds – S.8 Fingerprinting – Fingerprinting – Not Criminally Responsible Not Criminally Responsible Defences – Defences – Jury System Jury System Cases: R v. Lavallee Cases: R v. Lavallee

Comparison Retributive Justice Restorative Justice Crime is an act against the state, a violation of a law (abstract) Crime is an act against the state, a violation of a law (abstract) Crime is an act against another person and the community Crime is an act against another person and the community Crime is an individual act with individual responsibility Crime is an individual act with individual responsibility Crime has both individual and social dimensions of responsibility Crime has both individual and social dimensions of responsibility Punishment is effective (threat of punishment deters crime; punishment changes behaviour) Punishment is effective (threat of punishment deters crime; punishment changes behaviour) Punishment alone is not effective in changing behaviour and is disruptive to community harmony and good relationships Punishment alone is not effective in changing behaviour and is disruptive to community harmony and good relationships Victims are peripheral to the process Victims are peripheral to the process Victims are central to the process of resolving a crime Victims are central to the process of resolving a crime Focus on establishing blame or guilt, on the past (did he/she do it?) Focus on establishing blame or guilt, on the past (did he/she do it?) Focus on the problem solving, on liabilities/obligations, on the future (what should be done?) Focus on the problem solving, on liabilities/obligations, on the future (what should be done?) Emphasis on adversarial relationship Emphasis on adversarial relationship Emphasis on dialogue and negotiation Emphasis on dialogue and negotiation