Natália de Souza Neves, Diálogos entre a justiça restaurativa e a justiça social pela via de acesso a direitos e seus reflexos sobre adolescentes em conflito com a lei [Dialogues between restorative justice and social justice through access to rights and their impact on adolescents in conflict with the law]

Natália de Souza Neves, Diálogos entre a justiça restaurativa e a justiça social pela via de acesso a direitos e seus reflexos sobre adolescentes em conflito com a lei [Dialogues between restorative justice and social justice through access to rights and their impact on adolescents in conflict with the law]. Belo Horizente: Expert, 2021, 194 pp., ISBN: 978-65-89904-31-1 (hbk).

In her enlightening book, Natália de Souza Neves problematises the fact that restorative justice programmes often provide little focus on the needs of offending adolescents, failing to pay attention to the widespread rights violations many of them encounter within the Brazilian justice system – a concern that has largely been ignored by the system itself.
The book addresses two main questions. The first concerns the possibilities and limits of incorporating social justice into the restorative justice approach within Brazil’s juvenile justice system. The second investigates whether there is a theoretical and methodological framework capable of substantiating such possibilities. Starting from the assumption that such a framework exists, the author supports this through an analysis of the integral protection doctrine, which offers the basis for dealing with adolescents in conflict with the law in Brazil, as well as through an analysis of the theoretical and methodological foundations of restorative justice.
The theoretical framework Natalia uses to advocate for social justice is based on Amartya Sen’s capabilities approach. This approach focuses on the capabilities of individuals within society, their freedom, and their actual opportunities to choose and lead the kind of life they value and can celebrate. It is, therefore, an approach that, from Sen’s perspective, offers elements to assess whether or not a society is fair. With regard to justice and restorative justice practices, Natália’s work draws on a wealth of theoretical sources from both foreign and Brazilian scolars, including Howard Zehr, Lode Walgrave, Daniel van Ness, John Braithwaite, Mylène Jaccoud, Leoberto Brancher, Cristina Assumpção and Vania Yazbek, among others.
The book features a preface by Professor Elza Maria Miranda Afonso, Professor Emeritus at Universidade Federal de Minas Gerais (UFMG) Law School, and an afterword written by Professor Fernando Gonzaga Jayme, who is an Associate Professor at the same university. It is organised into four chapters following an Introduction in which the author presents the interdisciplinary nature of the work, derived from her doctoral thesis. The thesis aimed to ‘problematise and understand the possibilities and boundaries of a restorative justice [approach] that incorporates social justice within the juvenile justice system for adolescents in conflict with the law’ in Brazil.
The first chapter begins with an explanation about the paradigm shift from the doctrine of irregular situation to the doctrine of integral protection. The author analyses the rights of children and adolescents in Brazil by exploring the paradigmatic changes that began with the drafting of the 1979 Brazilian Minors Code and evolved toward the integral protection of rights, a shift that was heavily influenced by the 1989 International Convention on the Rights of the Child (CRC). Indeed, the CRC not only served as a milestone for policies and practices of the retifying countries more broadly, but also as a guiding framework for addressing issues affecting children and adolescents in Brazil.
When analysing the impacts of the CRC, adopted by the United Nations (UN) General Assembly on 20 November 1989, the book highlights that the Brazilian Constitution, promulgated on 5 October 1988, had actually anticipated the Convention’s approval. Indeed, the Constitution not only preceded the Convention’s approval but also adopted its guidelines. Therefore, the new doctrine of integral protection became the cornerstone of the Brazilian Statute of Children and Adolescents, known by its Portuguese acronym ECA. By incorporating the CRC’s guiding principles into Brazil’s legal system, ECA ensures that children and adolescents are treated as subjects of law, not merely as objects of State tutelage and assistentialism. The enactment of ECA led children’s and adolescents’ rights to be defined and protected in the event of threat or violation and, specifically for adolescents in conflict with the law, this legislation posits that restoring their full rights is a shared responsibility of the family, society and the State. On these grounds, adolescents who commit criminal acts are held responsible within the limits of the law, and prescribed social-educational measures are implemented.
In continuity, Natália explores the relationship between the doctrine of integral protection and the material and procedural principles and safeguards stipulated by the CRC, ratified and enacted in Brazil through Decree 99710/1999. She discusses the nature of social-educational measures, concluding that they are fundamentally educational, ruling out their criminal and punitive aspects. Finally, closing the first chapter, the author introduces another way of approaching juvenile justice – already implemented in several countries – proposing that an understanding of offences from a restorative justice perspective can offer a more humane way to handle cases involving adolescents who commit criminal acts, and allows all parties involved in a harmful event the opportunity for a restorative experience.
In the second chapter, titled ‘On restorative justice: criticisms of the retributive paradigm of justice’, the author criticises the retributive paradigm for its focus on the violation of the law and the transgression of norms, while neglecting the needs stemming from the crime for the victim, the community and the offender. This paradigm often overlooks the economic, social and moral aspects of the behaviour of those involved. Continuing her analysis, the author states that restorative justice offers in-depth reflections and levels significant criticism against the punitive-retributive paradigm. She highlights three key aspects: the narrow focus on the act committed rather than on the context and circumstances; the focus on blaming rather than on the damage and its consequences; and the prevalence of an approach centred on individualised responsibility, rather than one that is shared, multidimensional, and conducive to transformation.
When discussing the factors contributing to the emergence of the restorative movement, the author lists the following: a) Informal justice and alternative conflict resolution methods; b) Indigenous justice, restoring values, traditions and practices of Indigenous peoples based on group cohesion (over coercion) to collectively build solutions; c) Social justice, resulting from criticisms of criminal justice for its negative way impact on those involved; and d) Reparative justice, included within enhanced reparation policies, which focus on meeting the needs of the victim throughout the process. In examining restorative justice models and trends, the author presents three models stemming from different conceptions advocated by proponents: the purpose-centred model, focused on rectifying the consequences of the harmful act; the process-centred model, in which processes define the restorative justice approach; and the purpose- and process-centred model, which allows for a definition based on both purposes and processes.
Finally, when discussing the concept, principles and values of restorative justice, the author highlights the challenge of encapsulating it into a single concept due to its broad applicability across different countries with varying legal traditions and environments, both within and outside the judicial sphere. Regarding values, the author presents accountability as a central value of restorative justice, along with values specific to the areas in which this justice model is applied (such as regulatory contexts within these areas). Furthermore, the author lists respectful listening, empowerment, concern for the needs of all stakeholders involved, and issues related to fundamental human rights as essential aspects. In this context, she emphasises that non-domination is a prerequisite for restorative justice programmes. Finally, at the end of the second chapter, while acknowledging the existence of numerous restorative justice practices worldwide, she highlights three well-known practices: victim-offender mediation, restorative circle and restorative conference.
Chapter 3 introduces Amartya Kumar Sen’s perspective on justice. Sen, an Indian economist, philosopher and researcher is renowned for his studies on poverty and social issues, particularly through the capabilities approach. He views the economy as a tool for promoting social well-being and, in collaboration with Mahbub ul Haq, developed the Human Development Index (HDI) as an alternative to the Gross Domestic Product (GDP) per capita. This metric, utilised by the United Nations Development Program (UNDP) since 1993, measures education, health and income as indicators of human development, unlike GDP, which solely reflects economic activity. Regarding the notion of capabilities, freedom and opportunities, the book stresses that Sen’s concern lies not in merely identifying ideal institutions and social arrangements, which is the scope of traditional justice theories, but rather in focusing on the actual lives people lead. Sen’s theory of justice centres on what individuals are capable of accomplishing based on their capabilities, skills and opportunities, representing a justice theory that enables dialogue with and is grounded in reality.
The author underscores Amartya Sen’s focus on ‘the life that people live, the freedom they have to choose and what they are capable of achieving’, aligned with the objectives they have set for themselves, aiming for a life ‘they can celebrate’. Sen disregards the criterion of wealth as the sole measure of social achievement. Instead, he provides a framework for evaluating society’s fairness based on individuals’ capabilities, their capacity to act, and the freedom to pursue their desired goals. In other words, Sen’s concept does not define social justice directly but establishes criteria for assessing a society’s fairness, measuring individuals’ success or failure based on their capabilities and freedom to choose their path. Furthermore, Sen’s perspective highlights the emergence of responsibility and duty from the freedom to choose one’s life path and aspirations. Regarding the notion of capabilities, freedom and opportunities, the author also stresses that Sen’s focus on processes facilitating both freedom of action and decision-making, along with the effective opportunities available to people, considering their personal and social circumstances. In this sense, opportunity is considered an integral aspect of freedom.
The author begins the fourth and final chapter – ‘Contributions of the capabilities approach to restorative justice’ – with a critical examination of Brazilian social inequality across its various dimensions. She argues that an ‘infraction act’¹x Unlike ‘crimes’ committed by adults, offences by adolesents are termed as ‘ato infracional’ under the ECA – ‘infraction act’ being its literal translation. constitutes a social phenomenon, contending that it is impossible to dissociate the perpetrator from their socio-economic context and life background. She also reflects on how Brazil’s historical and political processes have contributed to the country’s economic and social stratification, exacerbating existing social inequalities. In this vein, Natália asserts that applying restorative justice to adolescents who commit criminal acts aligns with Brazilian legislation and emphatically argues that the doctrine of integral protection must not be disregarded, as it serves as a theoretical-legal foundation for the rights of this public. Conversely, drawing on Sen’s ideas of justice, the author suggests that realising the needs and rights of this group requires the direct or indirect participation of a network of support systems capable of guaranteeing their rights.
The author also discusses intergenerational mobility, highlighting the interconnectedness of income inequality with institutions, power structures, politics and the economy, which in turn impacts intergenerational mobility. According to her, thus, there is a correlation between exacerbated social inequality and unequal distribution of opportunities, directly influencing people’s capabilities and freedom. Conversely, more equal income distribution positively affects capabilities. Ultimately, the author leads the reader to understand that the transformative power of restorative justice hinges on the effectiveness of social justice. Restorative justice alone is deemed insufficient to fully realise its transformative potential, particularly in a country where social inequality profoundly affects social institutions, people’s lives and intergenerational mobility, leading to conflicts and violence.
This work holds great value for individuals working with adolescent offenders in countries and contexts marked by deep social inequality. It is also invaluable for anyone interested in understanding, promoting, encouraging and acting in the field of social justice, particularly those whose interest lies in the effectiveness of restorative justice and its transformative power.

Noten

• 1 Unlike ‘crimes’ committed by adults, offences by adolesents are termed as ‘ato infracional’ under the ECA – ‘infraction act’ being its literal translation.