Restorative Justice and Therapeutic Jurisprudence: Two Sides of the Same Coin

Introduction

The authors conceive therapeutic jurisprudence emerging from the restorative justice practices, as a major development in criminological thinking, having roots in a variety of indigenous cultures, including spirituality and holistic healing traditions, that aims to re-connect offenders with their surroundings and communities. Restorative justice and therapeutic jurisprudence have been proposed as solutions to many of the issues confronting modern criminal justice. Despite citing indigenous legal systems as a source for current concepts of restorative justice and therapeutic jurisprudence, both the theory and practice of it have been developed substantially around the world in recent years. Therapeutic jurisprudence and restorative justice can be intimately tied to the formation of a disagreement or harmful behaviour, and competent emotion management is vital in the conflict resolution processes. Therapeutic jurisprudence investigates the impact of the law on the well-being including the emotional well-being of its people. It suggests legal reform based on behavioural science to reduce negative consequences and boost positive effects on wellbeing. Meanwhile, restorative justice addresses disrupting behaviour, whether related to legal action or not, which can cause not just physical but also emotional or psychological suffering that must be healed if the problem is to be fully remedied. The fundamental healing technique is a mediated contact between victim and offender in which each emotion can be addressed and comforted by addressing the events, their consequences, and what the offender can do to take responsibility for their wrongdoings or make apologies to the victims for their harms (King, 2008).

The development of restorative justice concept can be traced in the article written by Albert Eglash ‘Beyond Restitution: Creative Restitution.’ The idea of justice which he referred to is not new but was not practiced widely. Such provisions of justice have been noted in human history also. John Braithwaite has observed and mentioned in his studies that restorative justice has been the dominant model of criminal justice in most of the human histories across the world.

Restorative justice theory addressed the failures in the justice system and suggested adequate therapeutic jurisprudence in many cases. As mentioned by Bajpai (2002) in his article ‘towards restorative justice’ the theory of restorative justice is developing new ways of ‘doing justice.’

Van Ness and strong (1997) have identified a few movements for developing restorative justice. These movements are the following:

• 1.

  There is a movement on informal justice also called as the informal justice movement majorly addresses that there should be informal procedures with a view to increasing access to and participation in the legal process. The intention of this movement is de-legalization concerning with minimizing the stigmatization and coercion which are in existing practices in the criminal justice system. This will help in removal the stigma to the victims in criminal justice system.

• 2.

  A concept of restitution which was discovered in 1960s to response to a crime rediscovered. This movement also more focused on the victims. It addressed that there is need of maintaining the meeting of victim and offender which will sever the best interest of society. It has also addressed that offender shall bear the losses occurred to the victim due to his wrong-doing or act.

• 3.

  Another a big movement that may also classified as victim’s right movement. This has addressed the right of the victim to participate in the legal process.

• 4.

  Later a movement developed to address the reconciliation/conferencing between the victim and offender. It has majorly addressed in two ways:

  • I.

    Victim/offender Mediation: It has originated from the efforts of the Mennonite Central Committee; this process helps to address the problem by having a mediator along with the victim and offender. So that an alternate way can be developed to resolve the conflict.

  • II.

    Family group conferencing movement in New Zealand: This was inspired from the Maori traditions in New Zealand.