Restorative Justice and the Rule of Law: Rethinking Due Process through a Relational Theory of Rights

Abstract

Restorative approaches to criminal justice can be reconciled with fundamental notions of the rule of law through a relational understanding of rights. Firstly, the paper demonstrates how theories of rights have evolved from a liberal understanding in representative democracies, where individual rights holders can trump the interests of others, to a relational theory where rights embody values which structure appropriate relationships among citizens. Second, the paper shows that relational theory can explain how formal criminal justice and restorative justice in a deliberate democracy interrelate, while embodying different, though compatible, rights, duties and remedies among wrongdoers, victims, communities and justice system authorities. Third, the paper invokes a relational understanding of administrative law to chart an approach to judicial review of restorative justice processes, which can reinforce their deliberative and participatory nature through vindication of relational rights and remedies, without simply returning cases to criminal courts. Finally, the paper details the substantive and procedural administrative law standards to be applied in reviewing restorative justice. The conclusion asserts that a relational understanding of the role and rule of law in relation to restorative justice promotes relationships of equality based on mutual concern, respect and dignity in ways that can enhance justice and social solidarity in a deliberative democracy.

Keywords: Restorative Justice, Relational Theory, Criminal Law, Administrative Law