Restorative Justice as a
Vehicle for Legitimacy in PostConflict Societies
Dr Jonathan Doak,
Nottingham Law School, NTU
David O’Mahony,
Durham Law School, University of Durham
Question
• Can Northern Ireland’s new
restorative conferencing
arrangements assist in building
legitimacy in the criminal justice
system?
So what is ‘legitimacy’?
• Normative legitimacy
• Legal legitimacy
• Social legitimacy
Does legitimacy matter?
• ‘Public acceptance, confidence and support… are
social incidents of legitimacy… Because criminal
justice is crucial to the security of the state, and
because criminal justice is integral to the state’s
project of governance, the criminal justice
system has become central to the political and
constitutional integrity of the state - a generally
recognised and jealously guarded incident of its
sovereign authority’ (Walker and Telford, 2000:
53-55)
Legitimacy and procedural justice
• See work of Tom Tyler and colleagues.
• People’s experiences with fair procedures will make it
more likely that they will…
• Accept a sense of obligation to obey the law
• Acknowledge the moral authority of rulers to make
and enforce the law
• Desist from offending
• Fair treatment within the CJS was associated with
values such as ‘representation, honesty, quality of
decision, and consistency, and more generally of
participation and esteem’ (Tyler, 1990: 175).
Legitimacy through restorative
justice
• Proponents of restorative justice thus frequently
contend that the restorative paradigm may carry
wider societal effects reverberating beyond the
direct participants in a particular mediation or
conference setting:
• Eg, strengthening social relationships, affirming
community norms and a collective vision; civic
ownership of disputes.
• Values include truth, accountability, reparation,
reconciliation, conflict resolution and democratic
participation.
Restorative Youth Conferencing in
Northern Ireland
• Background and operation of restorative conferencing
• Criminal Justice Review
• Court ordered and diversionary conferences
• Mainstreamed process within criminal justice
• How can these arrangements contribute to legitimacy?
• Questioned whether it is:
•
•
•
•
•
Open
Devolved
Accountable
Participatory
Engaging with the wider community
Youth Conferencing Research
• Re-analysis of Youth Conferencing Evaluation (2005)
• Observations of 185 conferences, interviews with 171 offenders
and 125 victims
• Supplemented by recent conferencing data and interviews with
practitioners in Youth Conference Service and range of
stakeholders and community representatives
Findings:
• An inclusionary process?
• Bringing those directly impacted together
• Facilitating dialogue
• Engaging victims in the process and dialogue?
• Extent of engagement
• Victims and supporters
• Why victims attended
• Engaging offenders (and family) in the process and dialogue?
•
•
•
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Types of offences
Reasons for attending and experience
Holding offender to account
Offenders and family support
Findings 2
• Engaging Police, Conference Coordinators and Others
• Engagement with the outcomes (conference agreements)
•
•
•
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Contribution to process
Types of disposals, restorative vs. punitive
Delivery of outcomes and community involvement
Ownership of disputes and community reintegration
Conclusions
• Legitimacy, youth conferencing and restorative justice:
• Potential to bolster criminal justice legitimacy
• Promotes engagement
• Allows for better sense of procedural justice
• Especially for communities and individuals who have been alienated
• Process seen as fair, democratic and participatory
• Contributing to sense of ownership of justice and resolving
conflicts through inclusionary means vs. punitive exclusionary
means
• Potential applications in other jurisdictions, especially where
there are significant community and criminal justice tensions