If South Africa is truly moving towards applying restorative justice principles in the resolution of disputes it will be evident in the legislation and recent case law in different fields; including crimes of child offenders, less serious crimes and serious crimes. 2 Restorative justice versus traditional theories Punishment theories such as retributive and utilitarian approaches focus on ‘righting the wrong’. Retributive theories are based on the idea where the offender can only pay for his ‘sin’ by suffering. Whereas, utilitarian approaches are focused on the legal and moral order, protecting society and potential victims from the offender. This approach also centers on using the deprivation of liberty, pain and suffering to punish current and potential offenders.
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Punishment for Foucault is a show of power first brutal and direct (torture), then organised and rational (prison). Punishment does not get more lenient because of humanitarian reasons but because the power relations in society change. This essay will attempt to look at the above view in depth, to answer the question of what the characteristic of modern punishment is for Durkheim. The essay will then move onto Foucault and his views. I will deal with each view separately, as is not easy to contrast and compare their views because they have a very different outlook on society.
Restorative justice is seen as being guided by the value of healing; whereas the criminal justice system (traditional justice) usually used compensates the hurt of crime with the hurt of punishment. Traditional justice tends to focus more on the crime that has been committed whereas restorative justice places emphasis on the future. It is further seen as an application of the spiritual teaching of criminal justice as well as a theory of social justice. Moreover, it has also been stated that restorative justice should be adopted as a lifestyle. Thus insinuating that we as a society should take to heart the values and principles of restorative justice and apply it in our individual lives.
Studies show that treatment and crime prevention programs are more effective than incarceration. It is believed that the government is not willing to fix the main reasons why people commit crime, however instead, the government is constantly funding for prison construction which is extremely costly. Crime is defined as an illegal act that violates the law and is punishable upon conviction. (Criminal Justice and Legal Access Police Division). Any person who has been declared guilty of crime must be punished, as these punishments such as incarceration, costly fines or in some instances both.
Punishment can be defined as “the imposition of hardship in response to misconduct” with regards to the criminal justice system. There are five possible purposes to the punishment of criminals: incapacitation, deterrence, restitution, retribution and rehabilitation. The idea of incapacitation is that it gets criminals off the streets and protects society. By physically removing the offender from the community, it would prevent him or her from committing future crimes against the public while serving a sentence. The deterrence approach deters people from engaging in illegal acts through threats of punishment.
Why is one system used more than the other? What are examples and results of using restorative justice? Questions such as these will hopefully give us insight into the history of our criminal justice system and clears up any miss confusion which we might have to this day. Retributive justice is a process used in criminal justice courts today, where justice is served through punishments. According to Michael Wenzel, author of the article of “Retributive and Restorative Justice” explains the process of retributive justice by stating “according to this notion, an offender, having violated rules or laws, deserves to be punished and, for justice to be reestablished, has to be punished in proportion to the severity of the wrongdoing.”(Wenzel 349) Essentially what Wenzel is trying to entail us is that justice in this system is delivering punishment to the offender based on the crime that they have committed.