Ought To Be And To Be: Analysis On Legitimacy Of Restorative Justice

In the past two decades, the remarkable performance of judicial reform in the track process of criminal judicature fascinated both Chinese and foreign jurisconsults, and restorative justice as one of the new emerging forces more further attracted their attention. Restorative justice gave the traditional retributive criminal justice a shot in the arm, by offering the offender, the victim and the local community a platform to encounter and engage each other. It holds offenders accountable for their actions under an objective rule of law, but always attends fully to victims' needs - both symbolical and material, enable offenders to assume active responsibility for their actions and recreate a harmonious society that supports the rehabilitation of offenders and victims and is active in preventing crime aiming at achieving the ultimate judicial goals. Jurisconsults observe the formative track and explain the effect of restorative justice in all means of contemporary jurisprudential theories. Even some scholar considered restorative justice is a successful challenge to retributive justice, and makes a contribution towards the furtherance of major judicature. However, restorative justice as an informal one developing in criminal judicial practice has to face much criticism and real difficulties. Academic and practical circles argue about its legitimacy. So it is really an important and complicated task whether to include or exclude restorative justice for every country's criminal procedural rules reform.This paper is mainly on this topic with the theme of Ought to Be and To Be: Analysis on Legitimacy of Restorative Justice. The paper is divided into five parts. The first part points out the main theoretical and social background. And the second part gives the theoretical summary of restorative justice in a practical process. Based on the theory of social contract, the next part analyzes the legitimacy of restorative justice at an "ought to be" level, and offers the limitation and standards of its legitimacy. Then the fourth part discusses restorative justice as a mode of social control by descriptive experimental comment in order to find a practical logic and to understand the legitimacy of restorative justice from another level of "to be". Finally, the last part attempts to give the reform schemes with the social control practice of or pertaining to restorative justice in our country's criminal procedure.