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A restitutive theory of justice is a rights-based approach to criminal sanctions that views a crime as an offense by one individual against the rights of another calling for forced reparations by the criminal to the victim. This is a sharp departure from the two predominant sanctioning theories-retribution and crime prevention. Rights-based analysts have criticized this approach for failing to include mens rea, or criminal intent into the calculation of sanctions, thereby ignoring the traditional distinction between crime and tort. Such a distinction is problematic, however, since punishment for an evil mind cannot be made compatible with a coherent individual rights framework. To do so would require the existence of a right to certain thoughts of others, a morally and theoretically objectionable position.

To understand the argument for a restitutive remedy for rights violations one must posit what a crime is: an unjust redistribution of entitlements by force that requires for its rectification a redistribution of entitlements by force if necessary from the offender to the victim. Certain common objections to such an approach are considered, including the difficulty of measuring damages, the impossibility of reparation and the problem of criminal attempts.

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Randy E. Barnett, The Justice of Restitution, 25 Am. J. Juris. 117 (1980)

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Criminal Law Commons