Criminal Justice as Regulation

Problem-solving courts and restorative justice programs provide important new alternatives to cope with recurring problems in the criminal justice process. But they are much more. They are harbingers of a new theory of the criminal justice process that challenges traditional accounts in fundamental ways. Although practices akin to problem-solving courts and restorative justice have long operated outside or below the radar of the theory of criminal law and the adjudicative process, over the past few decades these practices have come to the fore and are now supported with full-blown theories, which threaten to displace traditional accounts of criminal responsibility, criminal liability, and indeed the core features of the criminal justice process. The new theories are based on theories of regulation, where the objective is not so much to enforce the law as it is to secure compliance to the law in order to facilitate harm reduction and restore social order. Nowhere is this new development so clearly seen as in the opening chapters of John Braithwaite’s important book, Restorative Justice and Responsive Regulation. In this book, Braithwaite offers a full-throated theory of the new criminal justice process that is based on recent developments in regulatory theory and, most particularly, responsive regulation, which Braithwaite helped to develop. This model is implicit to varying degrees in any number of recent developments in the criminal justice process, and in this paper, I argue it has the potential for displacing the classical theory of criminal law.