A previous Lexicon column noted that three theories had been formulated to provide a rationale for the notion of justice.
These include: the theory of distributive justice, which relates to the distribution of wealth within society; the theory of restorative justice, which relates to repairing the harm caused by wrongful conduct and resolving contradictions between people; and the theory of retributive justice, which relates to punishment (see The notion of justice).
This column considers the notion of restorative justice. It begins by outlining its objectives and origins, and then considers the use of restorative justice in mainland China.
Objectives of restorative justice
The notion of restorative justice has been particularly prominent in the context of criminal offences. It has operated either as an alternative to formal criminal law proceedings or as a process that takes place alongside formal proceedings, and is taken into account in areas such as sentencing.
Restorative justice has several objectives. One is to provide a process by which offenders can accept responsibility for their actions and understand the harm that their actions have caused. Another is to reduce recidivism – the risk that they will offend again – and to give offenders an opportunity to redeem themselves.
A third, equally important, objective is to give victims an opportunity to speak out. This can be achieved through means including (where appropriate) arranging a meeting or conference between the victim and the offender, often with the involvement and support of members of the family or broader community. In addition, or as an alternative, the victim may be given an opportunity to suggest how the harm might be repaired, including through the payment of compensation, an apology or other means of redress.
Restorative justice, therefore, has different objectives from retributive justice, which places its focus on allocating blame and imposing punishment. Indeed, some people argue that the process of restorative justice represents a type of punishment for offenders, and that it is often more effective in achieving justice and a sense of closure for victims than the traditional forms of punishment.
At the same time, it is important to ensure that restorative justice is not used by offenders to take advantage of the system, and that it does not result in sub-optimal outcomes, particularly in serious crimes such as sexual assault and homicide.
Section 6 of the Restorative Justice Act 2004 of the Australian Capital Territory provides a good example of the objects of restorative justice:
(6) Objects of Act
The objects of this act are as follows:
(a) To enhance the rights of victims of offences by providing restorative justice as a way of empowering victims to make decisions about how to repair the harm done by offences;
(b) To set up a system of restorative justice that brings together victims, offenders and their personal supporters in a carefully managed, safe environment;
(c) To ensure that the interests of victims of offences are given high priority in the administration of restorative justice under this act;
(d) To enable access to restorative justice at every stage of the criminal justice process without substituting for the criminal justice system or changing the normal process of criminal justice;
(e) To enable agencies that have a role in the criminal justice system to refer offences for restorative justice.
Note: “Offence” includes an offence that is alleged to have been committed, but has not yet been tried in court, or proven (see section 12).
The past few decades have seen an increasing focus on restorative justice. In some jurisdictions, it was initially used only for crimes involving (perpetrated by) children and was subsequently expanded to crimes involving adults. In addition, there has been an expansion in the scope of the offences in which restorative justice may be used.
Origins of restorative justice
The notion of restorative justice can be traced back to traditional customs of indigenous peoples in countries such as Canada and New Zealand, and traditional practices in China. Many scholars, including Western scholars such as John Braithwaite, have identified Confucius as an important philosopher of restorative justice. As this column has previously noted, the traditional concept suggested by the Chinese word for dispute, jiufen (纠纷), was a breakdown of social harmony and a disruption of the natural order (see Alternative dispute resolution: mediation or conciliation).
According to Confucian thought, disputes should be resolved by restoring the relationship between the parties to the dispute. And the best tool for this purpose was li [礼], which could be described as the norms of moral conduct and propriety that govern social relations. It was only if those norms did not succeed in resolving the dispute that one should have resort to fa [法]; namely, impersonal rules that apply on a more or less universal basis and often result in punishment for their breach.
The distinction between li and fa was reflected in the two main historical schools of thought in Chinese law – the school based on Confucianism and that based on legalism. The legalists argued that law should not protect powerful persons, and that everyone was equal before the law; the Confucianists argued that discretion should be applied in the application of law based on the circumstances of the case and, in particular, the specific relationship between the parties involved (see Legal thought).
Restorative justice in China
Historically, the Chinese legal system has alternated between periods in which restorative justice was permitted in criminal cases and periods in which it was prohibited. For example, prior to the legal reforms in the late Qing dynasty, restorative justice was an established feature of the traditional criminal justice system.
In the first decade of the last century, however, legal reforms expressly prohibited restorative justice processes in criminal cases. Subsequently, in 1943, the Regulations of the Communist Party of China on Mediation in Civil and Criminal Cases in the Shan-Gan-Ning Border Region provided that offenders and victims could agree to reconciliation in all criminal cases except those involving serious crimes and crimes infringing upon public interests.
Subsequently, revisions to the Criminal Procedure Law in 1996 removed the concept of criminal reconciliation from all public prosecution cases. Following the Supreme People’s Procuratorate Several Opinions on the Application of the Criminal Policy of Tempering Justice with Mercy in Prosecution in 2007, revisions to the Criminal Procedure Law in 2012 resulted in the insertion of the following provisions:
Chapter II Procedures for Reconciliation Between Parties in Cases of Public Prosecution
Article 288
With respect to the following cases of public prosecution, the parties may undertake reconciliation if the criminal suspects or defendants have shown true remorse and obtained the forgiveness of the victims through means such as compensating for the loss and apologising, and the victim has voluntarily accepted reconciliation:
(1) Cases arising from civil disputes that involve suspected offences as stipulated in the provisions of chapter IV and chapter V of the Criminal Law, and that are punishable by a fixed-term imprisonment of no longer than three years or less; and
(2) Cases involving crimes of negligence that are punishable by a fixed-term imprisonment of seven years or less, except for crimes of dereliction of duty.
Where the criminal suspect or defendant has committed intentional crimes over the past five years, the procedures in this chapter shall not apply.
Article 289
Where the parties to a criminal case reach reconciliation, the public security organ, the people’s procuratorate and people’s court shall consult the parties concerned and other relevant persons, review the voluntariness and legitimacy of the reconciliation, and oversee the preparation of the reconciliation agreement.
Article 290
With respect to a case where a reconciliation agreement has been reached, the public security organ may suggest that the people’s procuratorate deal with the case leniently. The people’s procuratorate may suggest that the people’s court impose lenient punishment. The people’s procuratorate may decide not to prosecute the case if the circumstances of the crime are minor and do not require criminal punishment. The people’s court may impose lenient punishment on the defendant in accordance with the law.
Article 288 contains key elements of restorative justice, namely, the offender has accepted responsibility, the offender has offered some form of redress to the victim, and the victim has voluntarily accepted reconciliation. It also outlines the scope of the procedure, namely, the circumstances in which the procedure applies.
Article 289 provides that the voluntary participation and legitimacy of the reconciliation must be reviewed. Article 290 provides that in some cases, a decision will be made by the people’s procuratorate not to prosecute the case; in other cases, the reconciliation agreement will be taken into account in reducing the punishment.
To date, the use of criminal reconciliation in mainland China has been relatively limited. In addition, some scholars have criticised the procedure on the basis that it can sometimes be used on a coercive basis, and that it is sometimes perceived to be a way in which wealthy offenders can “buy their way out”.
However, similar approaches have been adopted in many other jurisdictions and there appears to be an international trend towards relying on restorative justice principles in a broad range of offences, including serious offences such as sexual violence and family violence.
Andrew Godwin is currently a member of a World Bank team that is advising a central bank in Asia on potential reforms to its mandate. He previously practised as a foreign lawyer in Shanghai (1996-2006) before returning to his alma mater, Melbourne Law School in Australia, to teach and research law (2006-2021). Andrew is currently Principal Fellow (Honorary) at the Asian Law Centre, Melbourne Law School, and a consultant to various organisations, including Linklaters, the Australian Law Reform Commission and the World Bank.
