Since the early 1970s there has been growing dissatisfaction in many countries with the criminal justice system, both in the way it is conceptualised and in the way it functions.
The various streams within this comprehensive movement have included the restitution movement, the victims’ rights and support movement, the prison abolition movement (see Daniel Van Ness, ‘An Overview of Restorative Justice Around the World’, Paper presented at Eleventh United Nations Congress on Crime Prevention and Criminal Justice, Bangkok, Thailand, 18–25 April 2005); and more recently the therapeutic jurisprudence movement (Annette Van der Merwe, ‘Therapeutic jurisprudence: judicial officers and the victim’s welfare’ – S v M 2007 (2) SACR 60 (W) pp 98–106. At http://126.96.36.199/bitstream/handle/2263/15710/VanDerMerwe_Therapeutic%282010%29.pdf?sequence=1
Specific concerns that have been expressed include:
- The fact that criminal proceedings tend to exclude victims, despite the fact that they are the very people most affected by the crime incident;
- The inadequacies in the conceptual foundations or practices of criminal justice;
- The recognition that imprisonment causes suffering and debilitation;
- The inadequacies of retribution alone as a governing theory; and
- The appropriateness of making offenders accountable to their victims.
Some feminist scholars have argued that societal responses to crime should reflect values such as harmony and felicity rather than those of control and punishment (Daniel Van Ness and Karen Strong, Restoring Justice, Cincinnati: Anderson Publishing Company, 2002). Annette van der Merwe quotes Susan Daicoff to the effect that all these streams have ‘two core common features’:
They all explicitly seek to:
- Optimise human well-being in legal matters, whether that well-being is defined as psychological functioning, harmony, health, reconciliation or moral growth; and
- Focus on more than legal rights, so they include the individual’s values, beliefs, morals, ethics, needs, resources, goals, relationships, communities, psychological state of mind, and other concerns in analysis of how to approach the legal matter at hand (Van der Merwe, ‘Therapeutic jurisprudence’, quoting Susan Daicoff, ‘Growing Pains: The integration vs. specialization question for therapeutic jurisprudence and other comprehensive law approaches’, 30 Thomas Jefferson Law Review 551, 2008).
In addition, we would argue that in our pursuit of justice we need to also draw on the perspectives of peace building and conflict transformation so that we recognise the impact that wider context plays in situations of conflict, violence, harm and crime.
Restorative justice is a very specific stream within the comprehensive movement outlined above, and has developed in such a way that it is not limited to criminal justice matters (Gerry Johnstone and Daniel Van Ness (eds), Handbook of Restorative Justice, US and Canada: Willan Publishing, 2007, p 15). It represents an attempt to rethink, fundamentally, our concept of what justice is, to view matters of crime and justice through a new lens, in many ways by returning to earlier understandings. For that reason, it is frequently described as a rediscovery rather than a discovery (AM Skelton, ‘The Influence of the Theory and Practice of Restorative Justice in South Africa with Special Reference to Child Justice’, unpublished LLD thesis, 2005, p 4).