Restorative justice and legal culture
| Author | Iván Navarro Papic,Alejandra Díaz Gude |
| Published date | 01 February 2020 |
| Date | 01 February 2020 |
| DOI | http://doi.org/10.1177/1748895818796549 |
| Subject Matter | Articles |
https://doi.org/10.1177/1748895818796549
Criminology & Criminal Justice
2020, Vol. 20(1) 57 –75
© The Author(s) 2018
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DOI: 10.1177/1748895818796549
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Restorative justice and
legal culture
Alejandra Díaz Gude
Universidad San Sebastián, Chile
Iván Navarro Papic
Universidad San Sebastián, Chile
Abstract
This article explores the question of how to expand restorative justice as a national policy in
a country underrepresented by the literature. We maintain that considering legal culture is
essential. We identify restorative justice traditions that are characteristic of civil law and common
law legal systems, respectively, and compare them with a case study belonging to the former
system. We argue that restorative justice practices are shaped by the legal culture, political
tradition and criminal justice identity of the system where they develop. We suggest an approach
to transferring restorative justice practices based on comparative criminology, restorative justice
traditions and legal culture, making a theoretical contribution to the field, as well as having
practical implications at the level of public policy design.
Keywords
Comparative criminology, legal culture, public policies, restorative justice, victim–offender
mediation
Introduction
This research explores the question of implementing restorative justice on a national
level once the approach has been successfully introduced and realized on a more modest
scale. The question was prompted by the experience with restorative justice (RJ) in
Chile, where there have been RJ practices operating for more than a decade; where there
Corresponding author:
Alejandra Díaz Gude, Faculty of Law and Government, Universidad San Sebastián, Bellavista No. 7, Recoleta,
Santiago, 8420524, Chile.
Email: Alejandra.diaz@uss.cl
796549CRJ0010.1177/1748895818796549Criminology & Criminal JusticeDíaz Gude and Navarro Papic
research-article2018
Article
58 Criminology & Criminal Justice 20(1)
have been large scale structural incentives for RJ; and where criminal justice policy
favours or is open to RJ approaches, but nonetheless, where it has not moved to the cen-
tre stage in the Chilean juvenile and criminal justice system. One contribution of this
article is to introduce the RJ experience of a jurisdiction underrepresented in English
language academic literature. In addition, and just as fundamentally, it aims to address a
gap in knowledge, in how RJ expands from local to national public policy. Of the studies
that do cover implementation of RJ (Aertsen et al., 2012; Blad, 2012: 97; Dignan, 2000;
Van Ness and Strong, 2015: 49, 133–147), there is little reference to issues of legal cul-
ture (Friedman, 1997; for exceptions, see Dignan and Cavadino, 1996; Shapland, 2011).
An analysis of Chile, where the legal culture has elements analogous to or drawn from
both civil and common legal jurisdictions, offers a novel setting to interrogate models of
RJ that are largely studied in specifically civil legal (e.g. Continental European) or com-
mon legal (e.g. the USA, UK or Australian) systems.
A possible path to follow in understanding the expansion of RJ as a national policy is
to analyse comparative experiences and to learn from them. In the Latin American region,
penal policies are frequently imported from abroad (Fonseca and Bolívar, 2015: 153). In
the literature on comparative criminal justice, some important findings related to this are
that: (1) criminal justice practices and policies tend to reflect the culture and national
histories in which they are embedded (Tonry, 2015: 512); and (2) there are risks inherent
in the transfer of criminal justice policies and practices, given the complexities of criminal
justice systems and the problems of translating concepts and institutions from one culture
to another (Brants, 2011: 52–55). Taking into account these observations, this article’s
analysis starts with the premise that: a country seeking to expand RJ should look at coun-
tries or systems which have had success in implementation and which have similarities
with its own legal and socio-political culture in general, and with its RJ tradition, in par-
ticular, in order to learn from it/them. This framing of RJ in comparative context fits with
Nelken’s (2011: 1–3) argument for sound comparative criminological analysis and policy
transfer. The following hypothesis allows one to operationalize this premise for the pre-
sent analysis: RJ developments in a given country will be a reflection of said country’s
legal, social and political culture.
In order to explore this hypothesis, the single case study research method was adopted.
The selected case study consisted of RJ developments in Chile. These are contextualized
through two dominant RJ models, which reflect wider legal, political and cultural tradi-
tions. An assessment then followed of whether or not RJ in Chile was closer to one of
these models, and whether this enables us to generalize the case study findings to the
theoretical proposal contained in the hypothesis.
In the first section, a concept of RJ is provided. In the second section, RJ traditions and
legal systems are analysed. In the third section, the methodology is discussed. In the fourth
section, the case study context is examined. In the fifth section, the case study is analysed
according to key features, followed by further analysis and lastly, our conclusions.
Concept of Restorative Justice
Restorative justice emerged in the 1970s and 1980s in different parts of the world
(Bazemore and Schiff, 2001: 25; Braithwaite, 1999: 3; Zehr, 1990) as a new practice and
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