‘Transforming justice’: challenges for restorative justice in an era of punishment-based corrections

Scholars of restorative justice have long debated its theoretical relationship with formal criminal justice. This analysis critically examines the range of sociostructural conditions in contemporary society that have halted the spread of restorative policies in practice and prevented them from realizing their transformative potential as an alternative system of justice. These factors are attributed largely to a punitive penal culture that is characterized by policy-making based on penal populism, the governance of risk and a managerialist criminal justice agenda; and the widespread co-optation of restorative programs by the state. This broad argument is explored in the context of two particular case studies – recent developments in youth justice and in sexual offending respectively in England and Wales and elsewhere. This examination ultimately highlights challenges for restorative justice in the current risk-driven penal climate and advocates a need to re-evaluate its relationship with formal state justice.

Justice as Improvisation:The Law of the Extempore

Justice as Improvisation: The Law of the Extempore theorises the relationship between justice and improvisation through the case of the New York City cabaret laws. Discourses around improvisation often imprison it in a quasi-ethical relationship with the authentic, singular ‘other’. The same can be said of justice. This book interrogates this relationship by highlighting the parallels between the aporetic conception of justice advanced by the late French philosopher Jacques Derrida and the nuanced approach to improvisation pursued by musicians and theorists alike in the new and emerging interdisciplinary field of Critical Studies in Improvisation (CSI). Justice as Improvisation re-imagines justice as a species of improvisation through the formal structure of the most basic of legal mechanisms, judicial decision-making, offering law and legal theory a richer, more concrete, understanding of justice. Not further mystery or mystique, but a negotiation between abstract notions of justice and the everyday practice of judging. Improvisation in judgment calls for ongoing, practical decision-making as the constant negotiation between the freedom of the judge to take account of the otherness or singularity of the case and the existing laws or rules that both allow for and constrain that freedom. Yes, it is necessary to judge, yes, it is necessary to decide, but to judge well, to decide justly, that is a music lesson perhaps best taught by critical improvisation scholars.

Unveiling Fairness for the Consumer:The Law, Economics and Justice of Expanded Arbitration

In recent years, the US Supreme Court has rather controversially extended the ambit of the Federal Arbitration Act to extend arbitration’s reach into, inter alia¸ consumer matters, with the consequence that consumers are often (and unbeknownst to them) denied remedies which would otherwise be available. Such denied remedies include recourse to class action proceedings, effective denial of punitive damages, access to discovery and the ability to resolve the matter in a convenient forum.

The court’s extension of arbitration’s ambit is controversial. Attempts to overturn this extension have been made in Congress, but to no avail. In contrast to American law, European consumer law looks at pre-dispute agreements to arbitrate directed at consumers with extreme suspicion, and does so on the grounds of fairness. In contrast, some argue that pre-dispute agreements in consumer (and employment) matters are consumer welfare enhancing: they decrease the costs of doing business, which is then passed on to the consumer. This Article examines these latter claims from both an economic and normative perspective.

The economic analysis of these arguments shows that their assumptions do not hold. Rather than being productive of consumer surplus, the use of arbitration is likely to have the opposite effect. The industries from which the recent Supreme Court cases originated not only do not exhibit the industrial structure assumed by the proponents of expanded arbitration, but are also industries which exhibit features that facilitate consumer welfare reducing collusion.

The normative analysis addresses the fairness concerns. It is explicitly based upon John Rawls’ notion of “justice as fairness,” which can provide a lens to evaluate social institutions. This Rawlsian analysis considers the use of extended arbitration in consumer matters in the light of the earlier economic results. It suggests that the asymmetries present in the contractual allocation of rights serve as prima facie evidence that such arbitration–induced exclusions are prima facie unjust/unfair. However, as asymmetry is only a prima facie test, a generalized criticism of the arbitration exclusions (of the sort found in Congress and underlying the European regime) is overbroad.

Experiences of youth justice: Youth justice discourses and their multiple effects

Interventions within youth justice systems draw on a range of rationales and philosophies. Traditionally demarcated by a welfare/justice binary, the complex array of contemporary rationales meld different philosophies and practices, suggesting a mutability that gives this sphere a continued (re)productive and felt effect. While it may be increasingly difficult to ascertain which of these discourses is dominant in different jurisdictions in the UK, particular models of justice are perceived to be more prominent (Muncie, 2006). Traditionally it is assumed that Northern Ireland prioritises restoration, Wales prioritises rights, England priorities risk and Scotland welfare (McVie, 2011; Muncie, 2008, 2011). However, how these discourses are enacted in practice, how multiple and competing rationales circulate within them and most fundamentally how they are experienced by young people is less clear. This paper, based on research with young people who have experienced the full range of interventions in the youth justice system in Northern Ireland examines their narratives of ‘justice’. It considers how different discourses might influence the same intervention and how the deployment of multiple rationalities gives the experience of ‘justice’ its effect.