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The Postulates of Restorative Justice and the Continental Model of Criminal Law

As Illustrated by Polish Criminal Law


Teresa Dukiet-Nagorska

The concept of restorative justice, which focuses on extinguishing the social conflict caused by criminal offense, has been received with growing interest on the part of both legislators and specialists in legal sciences throughout the world. This publication answers the question to what extent the classic model of criminal justice (including its fundamental principles and miscellany of penal measures) is able to meet the challenges posed by that concept. The doubts indicated in the study have been illustrated by normative provisions taken from Polish criminal legislation.
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The Concept of Restorative Justice


has evolved outside of, and at many points in contradiction to, traditional paradigms of criminal law and criminal process. Its sources may be tracked to doubts concerning the roles of many key institutions of penal law. Its founders have questioned the social benefits following the adjudication of criminal penalties and even the notion of crime itself. In addition they have put into question the way the formalised criminal process operates. Last but not least, they have spotted the negative consequences of the professional administration of justice, monopolised by “experts,” i.e. lawyers, at the cost of the wronged party and the local community. Restorative justice makes manifest a profound criticism of the criminal status quo. Let us look at the arguments deployed by these critics, as well as proposals for new premises and solutions thought to produce better results. Finally, we shall analyse arguments which challenge this new trend and the potential for certain elements of this model to invade traditional criminal law.

The social utility of criminal punishment has been negated both under the retributive approach, in which a penalty is understood as just requital for a socially harmful act, and in the utilitarian conception, in which a penalty is rendered primarily as an instrument destined to protect the society from the offender and, in particular, as a means to rehabilitate the wrongdoer. While criticising both these theories, adherents of restorative justice also employ argumentation which is advanced by proponents of each of the two paradigms in their...

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