1ST CEC-Detroit Research Project 2012: Restorative Justice, Social Justice and the Environment

Abstract

This assignment (paper) will help you develop a concept of justice and how it applies to social inequities and environmental damage.

Assignment Requirements

1)      Find a web definition of restorative justice,

2)      read a short essay I (Carolyn Raffensperger, M.A., J.D.) wrote on BP and restorative justice at http://www.sehn.org/blog/?p=394.

3)      Read the Law for an Ecological Age essay, http://www.sehn.org/law_intro.html  and then read the article A Law To Protect The Earth: The Tort of Ecological Degradation at http://www.sehn.org/law_transform.html

4)      review the environmental justice essay listed in the course requirements.

5)      Write a three page essay on your concept of social justice and the environment.

This review is to be turned in by August 6th, 2012. This material should be incorporate into the analysis in your final project.

Keywords: Restorative Justice, Social Justice, Environment and Restorative Practices

Defining Restorative Justice

According to the International Institute for Restorative Practices (IIRP) found at www.iirp.edu there is an article wrote by Ted Wachtel, the IIRP President and Founder, in Defining Restorative, where the graduate school distinguishes and describes “Restorative Justice” as being reactive by the nature of its intended purpose. For example, “[r]esponses to crime(s) and other wrongdoing after it occurs” (Wachtel, International Institute for Restorative Practices, 2012 pg 1).  Moreover, “In public health terms, restorative justice provides tertiary prevention, introduced after the problem has occurred, with the intention of avoiding reoccurrence.” (Wachtel, International Institute for Restorative Practices, 2012 pg 1).

In order that restorative justice practices work, successfully, toward their goals and the full potential of restoring justice, all stakeholders must willingly participate in the process. In fact, the article continues and further states that:

“When criminal justice practices involve only one group of primary stakeholders, as in the case of governmental financial compensation for victims or meaningful community service work assigned to offenders, the process can only be called partly restorative. When a process such as victim-offender mediation includes two principal stakeholders but excludes their communities of care, the process is mostly restorative. Only when all three sets of primary stakeholders are actively involved, such as in conferences or circles, is a process fully restorative (Wachtel, International Institute for Restorative Practices, 2012 pg 4).

“Restorative justice echoes ancient and indigenous practices employed in cultures all over the world, from Native American and First Nation Canadian to African, Asian, Celtic, Hebrew, Arab and many others” (Wachtel, International Institute for Restorative Practices, 2012 pg 2). Restorative practices have since evolved and “The IIRP’s definition of restorative practices also includes the use of informal and formal processes that precede wrongdoing, those that proactively build relationships and a sense of community to prevent conflict and wrongdoing” (Wachtel, International Institute for Restorative Practices, 2012 pg 1).

In the United Kingdom, the Restorative Justice Council, found at www.restorativejustice.org.uk states the following to exemplify some possible new ideas, exciting and developing applications by social justice advocates worldwide:

Restorative practices can be used in many areas to resolve conflict and repair harm.

Restorative practice is an innovative and expanding field. Practitioners who learn the skills are using them in new and creative ways; and members of the public are asking for them in situations where harm has occured.

For example, restorative processes have been used to resolve complaints against the police, or in cases of medical negligence where what the patient really wants is an explanation, an apology and assurance that no one else need suffer. Restorative processes have been used to deal with regulatory breaches, for example in relation to Health and Safety or Environmental Protection where people want to avoid recourse to the law and resolve problems positively (Council, 2012).

Restorative Justice and the BP Catastrophe

One of the more recent and exciting developments in Restorative Justice processes is something that Carolyn Raffensperger briefly discusses in her article regarding the BP Catastrophe, (Raffensperger, 2012) what’s known as the precautionary principle which by definition is an ethical principle that we ought to learn a valuable lesson, to consider our respect in and for all things, without exception. Ms. Raffensperger, indeed, has provided a valid foundation for advancing her advocacy of the precautionary principle, which seems like something similar to a “Preventive Maintenance Program” within the built environment of machines, structures and other things. That said, my point is and I wholeheartedly agree herein that if you do not take the proper precautionary care of animate and inanimate objects or things they shall ultimately break-down without question and when doing a benefit/cost analysis, after the fact, will always indicate that a precautionary principle in place could have prevented the damages due to neglect.

To further, exemplify our definition of restorative justice with respect to Carolyn Raffensperger’s article, she stated therein as follows:

Restorative Justice is a theory of justice that “emphasizes repairing the harm caused or revealed by unjust behavior.

The focus of restorative justice is to heal relationships, and make the victim whole. In the case of the oil hemorrhage in the Gulf the list of victims (or future plaintiffs, if you will) is long. The Ocean herself, all the sea creatures, the residents of the Gulf, and future generations, have suffered unspeakable damage from the Deepwater Horizon explosion. Restorative justice would assign blame as a way to allocate responsibility for the actions necessary to restore the environment, to restore all the relationships that are woven into the Ocean and coast. All of them.

Many key voices have called for the precautionary principle to be employed so that something like this never happens again. Essentially the principle is an ethic of refraining from doing harm. It is another expression of the Golden Rule that says, “Do unto others as you would have them do to you.” This ethic is reflected in the concept of Restorative Justice. How should we behave when the damage has already happened? First we apply the precautionary principle to prevent any more harm and then we restore the environment so the cascade of damage can be stopped (Raffensperger, 2012).

Conclusion

A Law To Protect The Earth: The Tort of Ecological Degradation

We begin here to search for solutions that effectively address these issues and indeed, find ourselves focused on advocating the “Precautionary Principle” for the purposes of legislating statutory language that would ensure the health, safety and welfare of environmental values as indicted or indicative therein and our final quotes as follows:

When environmental interests come into conflict with economic interests, our current property law (by which I mean all laws that govern our effects on the environment, including traditional rules of ownership, the liability rules of the common law, and federal and state environmental statutes) implements a very clear conception of how those conflicts should be resolved. As we shall see, that conception incorporates the goal of promoting economic activity, even where that activity externalizes environmental damage onto society. What we need is a new conception for resolving such conflicts that places a higher priority on environmental preservation, and a corresponding new legal structure that promotes this new balance of interests.

As we think about how our property law should be designed, we should recognize that, in the United States at least, property rights, private as well as public, are solely creatures of law that each generation must structure so as to best further the public welfare. Legal historians have shown that American property rights have never been fixed, but instead have been modified continuously through the centuries as our circumstances and social objectives have changed (Guth, 2012).

Throughout most of our history, the common law has been the nation’s major source of property laws. Its current structure was created during the nineteenth century by judges seeking to enable the industrialization of the United States. Those judges concluded explicitly that the public welfare was no longer best served by the ancient rule that landowners must “use their own so as not to harm another.” They came, instead, to view the public welfare as being served as long as actions have a net benefit even if collateral damage sometimes occurs, and concluded that economic activity generally can claim such a net benefit. Thus, they sought to encourage economic growth by developing new legal rules designed to shield industry from the liability that was imposed by the old rules. As they overthrew the old law and invented the modern liability doctrines of negligence and nuisance, the most important step they took was to change the goal of the law from preventing people from causing harm to preventing only actions that do not produce a net social benefit. They placed the burden of proof onto plaintiffs to demonstrate that defendants’ acts are “unreasonable” to make them liable for the damage they cause. Thus, the modern test for liability at common law requires plaintiffs to prove that defendants could have taken steps to prevent damage that were “cost-effective” (meaning steps whose benefits outweigh their costs); otherwise the damage is deemed “reasonable” and allowed to lie where it falls, considered an acceptable by-product of the social benefits of economic activity.

The only conclusion that we must consider here is one, which takes us down a path to understand and empower the very nature of all systems therein that sustain our worldly or human existence. Should we choose to do otherwise without protecting those systems from further harm and degradation, we shall not inherit the earth because she will surely die without our help.

Works Cited

Council, R. J. (2012, August 1). Restorative Justice Council. Retrieved from In Other Areas: http://www.restorativejustice.org.uk/what_is_restorative_justice/in_other_areas/

Guth, J. H. (2012, August 1). Science & Environmental Health Network. Retrieved from A Law To Protect The Earth: http://www.sehn.org/law_intro.html

Raffensperger, C. (2012, August 1). Science & environmental Health Network. Retrieved from Restorative Justice and the BP Catastrophe: http://www.sehn.org/blog/?p=394

Wachtel, T. (2012 pg 1, August 1). International Institute for Restorative Practices. Retrieved from Defining Restorative: http://www.iirp.edu/pdf/Defining-Restorative.pdf

Wachtel, T. (2012 pg 2, August 1). International Institute for Restorative Practices. Retrieved from Defining Restorative: http://www.iirp.edu/pdf/Defining-Restorative.pdf

Wachtel, T. (2012 pg 4, August 1). International Institute for Restorative Practices. Retrieved from Defining Restorative: http://www.iirp.edu/pdf/Defining-Restorative.pdf

 

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