The restorative and the retributive systems: combining measures

Tănăsescu Bianca - Liliana Legal Adviser

1. Definitions of key concepts

The retributive system is based on “The Retribution Theory of Punishment” (Immanuel Kant) which states that punishment for a crime is morally acceptable as long as it is proportionate response to the crime committed.

This system became what we call conventional justice.

Conventional justice centers on punishment, imprisonment, loss of goods and even loss of life.

We find this system in most cultures of the world but is significantly different, proportionality being a subjective concept.

The restorative system is based on a more individualized approach of the crime committed, focusing on the needs of the victim and the offender.

The main goal is to repair the injury or prejudice through dialogue and prevent repeat offending using persuasion methods.

2. Comparing characteristics

In the conventional justice system the state is considered the holder of the injured social values, the judicial proceedings end with a winner-loser resolution, revealing an inflexible and impersonal approach.

The victim and the offender are half passive subjects caught in a framework of predictable, rigid and many times ineffective measures.

Restorative justice focuses on the individual as holder of the injured social values and seeks a resolution by healing, agreement and compromise.

It provides an individualized and flexible approach that involves an active role of both the victim and the offender.

Punishment is a sanction for a past behavior and does not offer solutions to improve future behavior, while the restorative measures arise from the need to understand the pathology of social and individual scars with the goal to prevent future crimes.

3. Main measures

Retributive measures : Punishment Loss of goods Loss of life (in some law systems)

Restorative measures : Conflict mediation Counseling Support group Educational projects

4. Joint efforts – Penal mediation

Mediation is a method of conflict resolution in a neutral and impartial framework using the help of a specialized third-party as mediator.

This method focuses on the understanding, by both parties, of the need to repair the injury or prejudice caused by the crime committed, and it has a better chance of producing positive effects both immediate, as well as long-term.

Mediation aims to reach an agreement between the two parties.

This agreement, if reached, it eliminates the criminal liability of the offender.

5. Combining measures

A world without retributive measures is,for now, inconceivable.

While the restorative measures prove their growing effectiveness as an alternative, the classical criminal sanctions are a necessity to assuring a climate of social safety.

The vision on justice should not be single sided, at a contrary, combining retributive and restorative measures can have a positive outcome.

Most contemporary systems of law seem to adopt this direction by introducing provisions in legislative texts, which associate punishment with restorative measures.

In conclusion the two systems are not antagonistic, but rather complementary.

The two sets of measures can be combined to increase the effectiveness of criminal justice and reduce repeat offending.