William & Mary Journal of Race, Gender, and Social Justice
Abstract
Restorative justice is often framed as an alternative to the criminal legal system, and thus justifications of restorative justice tend to be rooted in the language of the criminal system. However, this approach limits our way of thinking about the practice of restorative justice, especially non-state, community-based practices. This Article argues for an independent, rights-based justification to support these community-based practices. By offering an in-depth analysis originating from a rights-based perspective, this Article engages with two underdeveloped areas of scholarly literature and suggests a new way of thinking about the day-to-day practice of restorative justice through a human rights lens. First, it takes a step towards filling the relative absence of robust analysis exploring modern day-to-day restorative justice—as opposed to the transitional justice or purely indigenous justice mechanisms—from the perspective of human rights law. Second, it engages with the relatively neglected discourse on non-state individual and community duties to promote human rights and joins the voices arguing for the recognition of such duties. Third, this Article theorizes the content of the dignity claim held by parties who have been harmed or committed harm. It then develops the corresponding duty to promote human dignity after an interpersonal harm has been committed. This Article concludes by arguing that this duty is at least partially fulfilled by community-based restorative justice practices. When engaging in these practices, duties are mainly borne by individuals and nonstate communities, with the state bearing duties to permit and support such practices, to the extent those practices meet their ethical obligations, as well as to meet certain needs.