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The Justice of Restitution

The Justice of Restitution RANDY E. BARNETT A restitutive theory of justice is a rights-based approach to crim- inal sanctions that views a crime as an offense by one individual against the rights of another calling for forced reparations by the criminal to the victim. This is a sharp departure from the two pre- dominant sanctioning theories—retribution and crime prevention. Rights-based analysts have criticized this approach for failing to in- clude mens rea, or criminal intent into the calculation of sanctions, thereby ignoring the traditional distinction between crime and tort. Such a distinction is problematic, however, since punishment for an evil mind cannot be made compatible with a coherent individual rights framework. To do so would require the existence of a right to certain thoughts of others, a morally and theoretically objection- able position. To understand the argument for a restitutive remedy for rights violations one must posit what a crime is: an unjust redistribution of entitlements by force that requires for its rectification a redis- tribution of entitlements by force if necessary from the offender to the victim. Certain common objections to such an approach are considered, including the difficulty of measuring damages, the im- possibility of reparation and the problem of http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png American Journal of Jurisprudence Oxford University Press

The Justice of Restitution

Barnett, Randy E.
American Journal of Jurisprudence , Volume 25 (1) – Jan 1, 1980
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Publisher
Oxford University Press
Copyright
© 1980 by The University of Notre Dame
ISSN
0065-8995
eISSN
2049-6494
DOI
10.1093/ajj/25.1.117
Publisher site
See Article on Publisher Site

Abstract

RANDY E. BARNETT A restitutive theory of justice is a rights-based approach to crim- inal sanctions that views a crime as an offense by one individual against the rights of another calling for forced reparations by the criminal to the victim. This is a sharp departure from the two pre- dominant sanctioning theories—retribution and crime prevention. Rights-based analysts have criticized this approach for failing to in- clude mens rea, or criminal intent into the calculation of sanctions, thereby ignoring the traditional distinction between crime and tort. Such a distinction is problematic, however, since punishment for an evil mind cannot be made compatible with a coherent individual rights framework. To do so would require the existence of a right to certain thoughts of others, a morally and theoretically objection- able position. To understand the argument for a restitutive remedy for rights violations one must posit what a crime is: an unjust redistribution of entitlements by force that requires for its rectification a redis- tribution of entitlements by force if necessary from the offender to the victim. Certain common objections to such an approach are considered, including the difficulty of measuring damages, the im- possibility of reparation and the problem of

Journal

American Journal of Jurisprudence – Oxford University Press

Published: Jan 1, 1980

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