Research On Theoretical Basis Of Restorative Justice

Restorative justice developed very rapidly in recent four decades, and it gradually becomes a popular subject of criminal law. Undeniably, restorative justice has brought great innovation to judicial philosophy and practice. At the same time, the research on restorative justice has become a hot issue. However, the current research is just a simple description or translation of foreign publications. I can't find any books or articles that describe the developing process of restorative justice and theoretical basis which plays an important role in its birth and development. I tried to understand the developing process of restorative justice and achieve a comprehensive understanding and a correct evaluation of it through the existing books, papers and other relevant information that supports its formation, existence and development.This paper is divided into five parts, discussing the contents and contributions of four theories. At the same time, problems caused by these theories are discussed, too.The first part describes main points of post-modern philosophy, focusing on the perspectives of Marxism and methodological pluralism which has a significant impact on restorative justice. This part clarifies the link between post-modern philosophy and restorative justice by analyzing deconstruction of the concept of crime. The most important contribution of post-modern philosophy is changing the judicial perspective and promoting the formation of restorative justice in the context of critique of traditional criminal justice system. People do not concern just about crime and punishment any more. They concern about the nature of the harm caused by crime, and care about how to compensate for the harm and who to compensate for this harm. They give adequate attention to victims, perpetrators and the community. On the one hand, post-modern philosophy promoted the birth of restorative justice and established the concept of the pursuit of substantive justice. On the other hand, post-modern philosophy shook the basic order because of negation of the universality and unity. How can we pursue justice if the universality and unity of law is completely negative? In other words, how can we achieve justice? Also, how can we solve the issue of missing of the procedure?The second part describes the development of the victimology, focusing on issues of rights, status and relief of the victims. It connects victimology with restorative justice by analyzing the background of the rise of restorative justice and the outcome of the victims movement. On this basis, it discusses the theory of victimology's contribution to restorative justice, which is, forming a victim-centered restorative justice philosophy and providing the evaluation standard of the effectiveness of restorative justice measures.The third part describes the basic content of moral communication theory, mainly about labeling theory, re-shaming theory and sociological analysis of the apology. Based on these theories, restorative justice advocates the implementation of re-shame instead of stigmatic shaming such as imprisonment in order to change perpetrators. Moral communication theory established a philosophy focusing on communication and reconciliation and responded to how to achieve substantial justice from the perspective of perpetrators. On the one hand, we give maintain respect and positive evaluation to perpetrators. On the other hand, we shame the perpetrators and re-evil them in order to get the perpetrators repent and re-integration into the community.The fourth part describes communitarianism. First, I discussed the revival of civil society theory.And then I discussed the relationship of communitarianism and civil society theory. Then I analyzed its impact on restorative justice through analysis of the interaction relationship of state and society. Communitarianism established the philosophy of community harmony, with exclusion of imprisonment and leadership of community to achieve the perpetrators'repenting, victims'receiving compensation and community-building. The community should not only assume responsibility for the perpetrators and the victims, but also undertake the responsibility to protect their peace and harmony. This part also noted the problem caused by the communitarianism, which is mainly about the qualifications and status of community in the restorative justice program. How to determine the application scope of restorative justice is also a problem.The fifth part describes author's basic concepts of restorative justice. I believe that restorative justice still have an important reference on China's legal reform in spite of their own unresolved issues. We should pay more attention to interests of victims and rights of perpetrators, achieve the goal of people-oriented effectively and make good use of the community in order to conserve judicial resources and improve judicial efficiency.