Restorative justice programs have rapidly gained in popularity as a means of peaceful conflict resolution. At the same time, the programs raise concerns because in order to join, offenders assume responsibility for their acts, are automatically held culpable, and forfeit their rights under criminal law for representation, judicial review, and uniform sentencing, among others. Restorative justice shares this automatic culpability with strict liability, an older and proven legal tool that has had long experience convicting defendants without the need to prove mens rea. The present article explores the similarities between restorative justice programs and strict liability, with a view toward learning from the experience accumulated by strict liability in dealing with the absence of mens rea. To this end, the article discusses the distinction made under strict liability between incriminating and escalating responsibility, and explores the benefits that restorative justice programs can derive from such a distinction.
Challenges Shared by Restorative Justice and Strict Liability in the Absence of Mens Rea
Golan Luzon is a post-doctoral research fellow in the Faculty of Law at Bar-Ilan University, Israel. He holds doctoral degrees in law and philosophy from the Bar-Ilan University. His principal research interests are in criminal law, theories of punishment, the philosophy of law, and jurisprudence.
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Golan Luzon; Challenges Shared by Restorative Justice and Strict Liability in the Absence of Mens Rea. New Criminal Law Review 1 November 2016; 19 (4): 577–591. doi: https://doi.org/10.1525/nclr.2016.19.4.577
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