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    Attainable and a Better Legal System

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    Is there an attainable, a better legal system than we now have? Explain.

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    https://brainmass.com/law/history-and-philosophy-of-law/attainable-and-a-better-legal-system-28362

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    Please refer to attached file response (also provided below) I have provided the two articles that I drew from, as well. I hope this helps and take care.

    RESPONSE:

    1. "Is there, attainable, a better legal system than we now have?"

    One possibility is to move to a Restorative Justice System. I have located two excellent articles on this topic, which I attached for convenience (also available on-line http://www.lcc.gc.ca/en/themes/sr/rj/howse/howse_main.asp and http://www.johnhoward.ab.ca/PUB/C26.htm). The first article by Llewellyn and Howse attempts to apply the Restorative Justice System to other aspects of law besides the criminal law system.

    Briefly, then, the first article by Llewellyn and Howse: In addition to offering a guide for the development of future restorative justice initiatives, the framework in this paper will also serve as an evaluative tool for existing practices claiming to be restorative in nature. We will briefly examine the parameters and direction for such evaluations. This paper will also explore the practicalities of applying the framework. Restorative justice practices have most commonly been employed in the area of criminal justice. An examination of the scope of restorative justice practices will be undertaken with a view to entertaining the possibility for restorative justice in other areas of law. In the process, we will attend to the potential problems and limits in applying this model of justice. Finally, the authors look at the interaction with and integration of restorative justice practices with current legal institutions. How can restorative justice be done and who are the appropriate actors and agents of restorative justice practices? For a definition of Restorative Justice, see the following sections of the article by Llewellyn and Howse:

    A THEORY OF RESTORATIVE JUSTICE
    A Question of Justice

    Defining Restorative Justice

    Restorative Justice ~ A Theory of Justice

    Restitution

    Corrective Justice

    Retributive Justice

    Restorative Justice

    Although these are both Canadian article, the information equally applies to similar justice system across countries as well.

    From the second article, refer to the following section:

    WHAT IS RESTORATIVE JUSTICE?

    Llewellyn and Howse conclude that the elaboration of a conceptual framework for restorative justice entails enormous issues of institutional reconstruction and redesign. In this conclusion, the authors stated "we can do little more than articulate what we consider the research, and policy development, agenda that flows most immediately from the possibilities opened up by the restorative idea."

    These authors (Llewellyn and Howse) make some good closing points. First of all, as the article discusses, any transition towards restorative justice will involve a complex interaction with existing processes, institutions and roles. At the level of detail, the range of institutional practices to be rethought is formidable--in the criminal context, the entry point for restoration can arguably begin as early as preventative policing, extending through prosecutorial discretion, to sentencing (where, all too often, alternative approaches have been taken as beginning). The challenge of weaving restoration into the various existing justice contexts (criminal, family, commercial etc.) needs to be addressed in a context-by-context basis. In the criminal area, where rights of the accused have been extensively constitutionalized in a manner that assumes important features of the present system, research must be undertaken on how this legacy may affect restorative possibilities, and how Charter issues may have to be re-thought where the co-existence of restorative and conventional approaches is contemplated.

    Secondly, Llewellyn and Howse point out that any move towards a restorative approach should presuppose a careful examination the issue of cross-cultural understandings of justice (read article attached for more detail). The conceptual framework supposes the possibility of cross-cultural dialogue and understanding about justice, and therefore rejects a cultural relativist or determinist view. But supposing the possibility of such dialogue does not, of course, obviate the need to undertake it. By necessity restoration must respond to the moral intuitions of both wrongdoers and sufferers of wrong, however broadly defined. A restorative approach will clearly not work unless there is a policy development process that at least could begin with a broadly based consultation and dialogue with Canadians in all their diversity, asking hard questions about why, for example, so many of us viscerally reach for punishment as a "solution"--a dialogue where voices of wrongdoers and sufferers of wrongs must be present and in interaction.

    The second article on Restorative Justice explains the failure of the present justice system in following sections (attached as "Restorative Justice2"):

    THE FAILURE OF THE JUSTICE SYSTEM
    Retribution
    Deterrence
    Denunciation
    Rehabilitation
    Incapacitation
    Reparation
    Costs
    IGNORING THE VICTIM
    WHAT IS RESTORATIVE JUSTICE?

    This second article also explains the main goals of the Restorative Justice system in the sections following:
    RESTORATIVE JUSTICE GOALS
    Justice for the Victim
    Justice for the Offender
    Addressing Victim-Offender Relations
    Community Concerns

    2. "Explain."

    Both articles explain how this Restorative Justice System is attainable. The first article explains (i.e., see mainly the Section 'Theory in Practice' of Llewellyn and Howse, as well as other sections, such as the limitations section. Check the table of contents below for sections that you want to look up:

    ________________________________________

    RESTORATIVE JUSTICE ~ A CONCEPTUAL FRAMEWORK

    INTRODUCTION HISTORICAL OVERVIEW
    Justice in History

    Contemporary Restorative Ideas

    Origins of Restorative Justice

    A THEORY OF RESTORATIVE JUSTICE
    A Question of Justice

    Defining Restorative Justice

    Restorative Justice ~ A Theory of Justice

    Restitution

    Corrective Justice

    Retributive Justice

    Restorative Justice

    THEORY IN PRACTICE
    Victims/Sufferers of Wrong

    Wrongdoers

    Community

    Restorative Process

    Elements of Restorative Justice Practice

    Encounter

    Rights Protection -- Addressing Power Imbalances

    Outcome

    Evaluation

    Summary

    THE LIMITS OF RESTORATIVE JUSTICE: Promise, Possibility and Problems
    Scope of Restorative Justice

    Challenges for Restorative Justice:

    Is Restoration Possible Where One or More Parties is Absent?

    Deterrence, Social Protection, and the Limits of a Purely Restorative System

    Whose Idea of Restoration?

    CURRENT PROGRAMS AGENTS OF RESTORATIVE JUSTICE
    Restorative justice within a dual system

    State and Community as Agents of Restorative Justice

    Developing Restorative Processes

    CONCLUSION: The Road to Restorative Justice -- Getting from Here to There

    The second article, deals with the implementation of a Restorative ...

    Solution Summary

    This solution explains if there is an attainable and a better legal system than we now have. Supplemented with two supporting articles describing restorative justice as attainable and a better legal system.

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