By what authority? On the relationship between restorative justice and the legal practice of juvenile court waiver.

摘要

This dissertation is an examination of the justice implications of the practice of juvenile court waiver processes that transfer offenders younger than 18 years of age from the juvenile delinquency court to the adult criminal court for trial and punishment. Since 1990, a perception that wrongdoing by young offenders has increased and become more violent has focused attention on the reform of the juvenile delinquency system. Reforms of the juvenile court waiver process reflect the tension in the range of recent proposals to reform the juvenile delinquency system, especially as to the justification for punishment, and poignantly reveal internal incoherence. The author holds that justification for responses to wrongdoing in the juvenile justice system tends to be grounded on virtue-based principles while in the adult criminal justice system the justification tends to be right-based. She offers a notion of restorative justice, rightly understood, as a more adequate response to crime. The Kantian constructivism in the ethic of practical reasoning of Onora O'Neill, and an imperative of obligations, is a bridge to the rights-based constructivist jurisprudence most recently grounded in John Rawls' theory of justice. An imperative of obligations makes it possible to hold both justice and virtue as practical principles for guiding action. Restorative justice has both religious and ethical origins. The priority of moral agency that these principles provide resonates with the respect for dignity of the human person and a robust understanding of the common good provided by Roman Catholic Social Teaching. A cornerstone of restorative justice is the participation of victim, offender and community as stakeholders in the criminal justice process. The definition and role of community within restorative justice is ambiguous. Restorative justice, rightly understood, defines this community in light of the priority placed on moral agency, and creates a duty of responsibility on the part of the community for the formation of all participants. Responses to wrongdoing based on an ethic of practical principles would include obligations of justice and virtue in assessing the justification for these responses. Restorative justice offers the via media for such a rapprochement between rights and obligations, justice and virtue.