Justice Examined > Models of Justice

Distributive, Restorative, Reparative, and Transitional Models Examined

COLUMN

BY ELLIOTT SCHWEBACH

In the last column of “Justice Examined” (October 2024 Bar News), the nature of justice as it underlies our modern, democratic legal system was explored. A historical journey took us from pre-Socratic Greek society to the present, demonstrating how the influence of Platonism, Roman law, and Christian theology crafted an understanding of justice as removed from nature or divinity and dependent upon a “bounded” (i.e., autonomous and agentic), rational, individual self.

Justice as we know it now is also, for the same reasons, strongly connected to the ideal of righteousness. Whereas the Homeric Greeks understood social outcomes to be directed according to many nonhuman agents, and justice to coincide with the imperatives of emotion, power, and honor, justice today is more about virtuous intentions and commitments to the law.

We grow up believing in these contemporary values because we are taught that they are good. And in many cases, even upon critical reflection, they may still be. And yet, there may also be limitations. A look back at the last half-century of democratic legal scholarship and activism shows us that one does not have to be a Vito Corleone to rethink the nature of justice in theory and practice.

Those of us who grew up in America are familiar with the massive countercultural movement that emerged in the 1960s, where activist leaders, students, and community members across identity groups questioned conventional social values (such as those of justice and state authority). Martin Luther King Jr. drew inspiration from forerunners of civil disobedience such as Henry David Thoreau and Mahatma Gandhi, as well as from his faith, to envision lawbreaking as a tool for achieving justice rather than—as the addressees of his famous “Letter from a Birmingham Jail” implied—as an impediment or threat. 

American society also saw widespread opposition to the Vietnam War, as well as open experimentation with drugs, sex, spirituality, and even communal living; all of which, in different ways, challenge the importance of the reasoning mind or the purely autonomous self.

In addition to how it rethought the “badness” of breaking the law, this countercultural force provided a backdrop for legal theorists to reconsider where responsibility and violence are located in a democratic society. In the following decades, models of justice emerged that began to think about responsibility beyond the bounded, rational self, and began to question how the state could be a potential participant in social violence.

In 1971, John Rawls published A Theory of Justice. It is hard to overstate how large of an impact this book made on Western jurisprudence. Until the time of its publication, justice had not been a central focus of concern for legal and political philosophy for several hundred years. With this book and his proposed model of distributive justice, Rawls convinced many, including former skeptics in the academy, to grapple with the idea that our established approaches to justice may need work.

With A Theory of Justice, Rawls concerns himself with the topic of social inequality. Taking the position that justice should entail fairness, he questions whether modern democratic societies—given their conditions of class difference, wealth and resource inequalities, and other forms of social stratification and oppression—actually meet this standard. Can inequality ever be just? When and how would this be possible?

Stating that “[w]e shall want to say that certain principles of justice are justified because they would be agreed to in an initial situation of equality,”¹1 John Rawls, A Theory of Justice (The Belknap Press rev. ed. 1999) at 19. Rawls formulates two principles that would determine the conditions of just (and unjust) inequality. The first is called “the principle of equal basic liberties,” a familiar democratic standard maintaining that every subject should have the security of basic civil liberties such as privacy and freedom of speech.

The second is called the “difference principle,” which holds that economic inequalities can be fair, and therefore just, but only if they serve the benefit of all, including the least socially advantaged. Rawls provides the example of wealth incentives for highly talented entrepreneurs who create social good through their skills, products, or services.

Because a system that would put this model of justice into practice would necessarily entail redistributive efforts by the state, including progressive taxation and the provision of public education and training schools, his approach is given the label “distributive justice.”

Although it is both somewhat progressive and somewhat conservative at once, gaining him critics from both sides (Rawls believes that private property, for example, passes the criteria for the difference principle, but he also advocates for a strong inheritance tax), Rawls’ approach stretches conventional perspectives on justice by moving responsibility for justice far more considerably toward the state, de-emphasizing righteousness for the individual democratic subject and questioning their extent of agency in an unequal system.

Another model that emerged in the 1970s, and one that has seen practical application in many judicial settings since, goes by the name “restorative justice.” This model focuses its criticism on “retributive justice” in the criminal legal system, which functions to punish lawbreakers in proportion to the severity of crimes committed.

Although many advocates of restorative justice such as Howard Zehr do not reject penalties or sentencing entirely, they aim to offer wrongdoers the opportunity to engage in discussion about the motivations behind and impacts of their crimes. This involves bringing victims into the conversation and increasing accountability, rather than shame, for offenders. It also involves reducing punishments, as well as an honest look at neglected community needs that surround criminal contexts.

Restorative justice therefore aims to open more space for considering the social environment underlying and producing criminality, acknowledging how it limits individual agency and choice, and how it changes what it means for offenders to act “reasonably” under the law. Restorative justice then seeks to change this social environment predominantly through discrete, interpersonal judicial interventions.

Yet, this approach is not without critics. For some, such as advocates of “reparative justice” (a more recent development that takes its name from the need to “repair”), a focus on the interpersonal does not go far enough to address social environments that generate inequality and crime. Proponents of reparative justice focus on longstanding systems of oppression that they observe to be more deeply rooted.

As Sangeeta Prasad of the Center for Children’s Law and Policy stresses: “restorative justice is inadequate. It holds criminally charged individuals accountable, but does not hold accountable the systems and institutions that have failed many of them.”2 ²Sangeeta Prasad, “More Reparative Justice, Less Restorative Justice is Needed,” Juvenile Justice Information Exchange (May 12, 2022), https://jjie.org/2022/05/12/opinion-reparative-justice-can-complement-restorative-justice/. Moreover, given that oppression can itself condition the contours or outcomes of interpersonal interaction, the methods promoted by restorative justice to increase accountability and decrease shame for criminal offenders may be met by loftier challenges than their proponents anticipate.

Prasad offers this example:

When a young Black man in largely impoverished West Philadelphia steals a bike from a professor at the University of Pennsylvania, also located in West Philly, restorative justice requires that the young person talk face-to-face with the professor, apologize and pay for the stolen item. This race- and class-blind model does little to address factors that often fuel crime.³3 Id.

Reparative justice advocates therefore believe that justice requires redressing historical injustices closer to their roots. In the U.S., this would entail reforming the social and economic systems that have unduly privileged white and non-Native citizens by employing strategies such as financial reparation, land restitution, institutional accountability, and policy changes that would more effectively address mass incarceration, poverty, educational disadvantage, and social violence and trauma.

In a model like reparative justice, the state and legal system are not only given considerable responsibility for promoting justice, but they are viewed as historical sites of violence and injustice, as well; i.e., they are also criminal offenders. The same can also be said for the model of “transitional justice,” a fourth approach that has emerged in legal debates and practice in recent decades.

Transitional justice has taken a strong foothold in international law because it asks questions that are pertinent to state transitions in post-conflict periods. In the aftermath of social and political conflict, how do societies reckon with human rights abuses and work toward reconciliation for national, racial, or ethnic communities that have been put at odds?

For transitional justice advocates, reparations also play a strong role, but so do criminal prosecutions for violators of fundamental liberties. To ascertain wrongdoing and determine reparations, truth and reconciliation commissions have become a pillar for transitional justice following their use in Argentina, Chile, and, most famously, South Africa in the 1980s and 1990s.

Although transitional and reparative justice are unified by a strong emphasis on the responsibility and historical violence of state institutions, there are tensions between these approaches, as well. For example, Canada’s Truth and Reconciliation Commission on the state’s history of kidnapping and forcibly assimilating Native children (a practice also employed in the U.S.) drew criticism for encouraging a reconciliation between Native and non-Native Canadian citizens without proposing wider institutional changes to redress colonial legacies of dispossession.

Whereas transitional justice advocates emphasize the importance of maintaining trust in established liberal-democratic institutions, proponents of reparative justice may be more likely to espouse politically conscious, nonviolent reform for the sake of empowering the communities most marginalized by historical injustice.

By contrast, in the name of distributive justice, followers of John Rawls may campaign for sweeping changes to economic policy more narrowly, and practitioners of restorative justice may continue to push back against punishment in criminal sentencing and highlight the positive changes that may emerge for the individuals involved.

The tensions between these different models suggest that justice remains challenging even for those who attempt to transform or expand it. Wherever we each land, however, from classical individualism to radical reform, we all do “justice” to the ideal by continuing to reflect upon it.

NOTES         

1. John Rawls, A Theory of Justice (The Belknap Press rev. ed. 1999) at 19.

2. Sangeeta Prasad, “More Reparative Justice, Less Restorative Justice is Needed,” Juvenile Justice Information Exchange (May 12, 2022), https://jjie.org/2022/05/12/opinion-reparative-justice-can-complement-restorative-justice/.

3. Id.

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