Abstract: 

The prosecution always goes first. In this paper I examine the historical and philosophical foundations of that staple of the criminal trial and observe that emerging restorative justice practices have typically adopted this structure. The victim begins by narrating the crime and its impact. The offender responds. I argue that the radical aspirations of restorative justice (in particular its aspiration to re-conceive justice as right-relation) are ill-served by the dynamic resulting from this procedural framework. Drawing on three examples, Aeschylus's OrestiaGrágás, the 12th-13th century Icelandic laws of homicide, and the law of the indigenous Canadian Kit-au-max people relating to accidents and death, I argue that it would be better to flip the restorative justice conference so that the offender would go first. Requiring the offender to narrate their experience and explain their reasons for action would position restorative justice as a more compelling alternative to the traditional justice system.The prosecution always goes first. In this paper I examine the historical and philosophical foundations of that staple of the criminal trial and observe that emerging restorative justice practices have typically adopted this structure. The victim begins by narrating the crime and its impact. The offender responds. I argue that the radical aspirations of restorative justice (in particular its aspiration to re-conceive justice as right-relation) are ill-served by the dynamic resulting from this procedural framework. Drawing on three examples, Aeschylus's OrestiaGrágás, the 12th-13th century Icelandic laws of homicide, and the law of the indigenous Canadian Kit-au-max people relating to accidents and death, I argue that it would be better to flip the restorative justice conference so that the offender would go first. Requiring the offender to narrate their experience and explain their reasons for action would position restorative justice as a more compelling alternative to the traditional justice system.

 

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