Restorative Justice in Islam- Should Qisas Be Considered a Form o

11 d orne at 8 see also k immett e dgar t im n ewell

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11 . D ORNE at 8. See also K IMMETT E DGAR & T IM N EWELL , R ESTORATIVE J USTICE IN P RISONS : A G UIDE TO M AKING I T H APPEN 11-14 (Waterside Press 2006) (describing the values methodologies of restorative justice).
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R ESTORATIVE J USTICE IN I SLAM 40 BERKELEY J. OF MIDDLE EASTERN & ISLAMIC LAW Vol. 4:1 restorative justice advocates is the underlying belief that the criminal justice system in the status quo fails to respect the human dignity of the perpetrator, the victim, and the larger community. Restorative justice is, therefore, occasionally referred to as “balanced justice” or balanced restorative justice. 12 A. Theories of Restorative Justice Restorative justice is a radical concept that criticizes the monopoly of the state in managing criminal prosecution and punishment. It is also a long-delayed reaction to the current criminal system that arose without consensus of the governed during the Middle Ages, when the “state stole crime.” 13 Restorative justice advocates emphasize that the damage caused by a crime is not simply a remote and slightly fictionalized harm “to society” as represented by the state. They focus instead on those individuals most directly harmed by the crime: the victim, the victim’s family, and the local community. 14 The state is seen as dealing with crime as though there were no connections between the perpetrator, the victim, and the community beyond the negative occurrence of the crime itself. However, according to the restorative justice theory, a crime is a “breach of relationship within the community.” 15 For this reason, restorative justice advocates insist that the local community, and not exclusively the state, should hold the perpetrator accountable. 16 In short, restorative justice rejects the narrative that crime is a crime against the state, and that state officials are satisfactory representatives of the community affected by the crime. Restorative justice is also critical of the current emphasis on incarceration. Even though some prisons provide “rehabilitative services,” many offenders commit crimes after leaving prison. Restorative justice advocates maintain that the community never regains any sense of safety or wellbeing after an offender completes his or her 12 . Id . at 6. The term “balance” as used in restorative justice circles can also refer to balancing the goals of accountability, competency development, community safety, and the goals of both conservative and liberal ideology. 13 . Id . at 7. 14 . Id. 15 . Id. See also , A NDREW VON H IRSCH , P RINCIPLED S ENTENCING : R EADINGS ON T HEORY AND P OLICY 167 (Andrew von Hirsch et al. eds., Hart Publishing 3d ed. 2009) (1992) (observing that community restoration, as unclear as that term might be, is a goal of restorative justice). 16. D ORNE , supra note 8, at 4.
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R ESTORATIVE J USTICE IN I SLAM 2011 RESTORATIVE JUSTICE IN ISLAM 41 sentence and returns to the community. Furthermore, the offender must live with the stigma of having been incarcerated upon returning to the community. 17 Thus, under the conventional system, the victim,
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