Dialogical Justice. Philosophical Coordinates for rethinking the Reaction to Crime in a restorative Way

It has become a commonplace to say that criminal justice is facing a crisis both in its conceptual premises and its practical applications or even to take this as a premise for discourses about criminal justice. At such a moment restorative justice emerges as a very peculiar proposal. It does not simply identify and criticize ‘what is wrong’ or malfunctioning in the contemporary practice of criminal justice: the restorative approach, in fact, suggests a decisive change in the way justice is understood and envisioned, both as a practice and as an idea. It is no surprise, then, that such a perspective has been recently gaining increasing attention in legal-philosophical studies. Restorative justice invites us to rethink the justification, the goal, and the limits of the reaction to crime – and emerges, as some of its proponents say, as a different ‘paradigm’ of justice. Thus its core idea transcends the borderlines of the purely legal debate, nor can it be confined to the world of ‘social action’. Therefore, the attempt to undertake a philosophical reflection on restorative justice should not surprise: although much restorative justice actually originated from practice and still constantly refers to it, the ‘holistic’ restorative approach to face the problem of justice assumes a remarkable (although seldom explicit) philosophical character. Moreover, it must be noticed that the restorative approach relies on concepts and proposals which have a remarkably normative emphasis.; They therefore, require adequate argumentation in order to be justified philosophically: otherwise, there is a risk of confining restorative justice to being an ‘optional view’ that can be chosen or not depending on individual opinions or to general consensus. In other words, the ambition to represent an idea –and/or an ideal – of justice, obliges the restorative approach to face the challenge of reflecting on its own conceptual premises and on their foundations: a challenge that may sound unpopular, or even impossible in a cultural milieu – such as the postmodern one – which assumes an anti-foundational perspective as a some kind of dogma. This essay is meant to provide a brief, provisional exploration of the philosophical arguments which may help to showing that restorative justice is not just an ‘optional view’. Many of the underlying assumptions and ideal goals of the restorative perspective call for a global rethinking of justice which transcends the mere need of solving situational problems and instead addresses the roots of the question about what justice is and what justice requires. Connecting classical legal philosophy and the contemporary debate, the author explores some ethical and anthropological reflections that move towards a ‘dialogical’ idea of justice: this sees ‘dialogue’ not just as an event, but rather as a conceptual structure which is inherent to the human condition. Such theoretical coordinates may orient towards a more humane and ethically approvable approach to justice which, in the author’s view, already lies behind some of the main proposals of restorative justice, but still need to be consolidated by creating a solid philosophical frame, in order not to waste the innovative impulse that such an approach has been giving to the debate on criminal justice.