Sorry, but this equation is primitively, barbarically, and unjustly (surprised?) reductionist. "Legalism" tends to be quite a naughty word in modern legal discourse.
It is true that "legalism" has become something of a dirty word, even in legal discourse. However, some of us still contend, though unfashionably, that the law is necessarily formulaic, rigid and strict in application.
The rules of equity, for example, exist to "temper" the common law and to blunt its harshness but we, rightly, do not allow equity to intrude upon the common law at every instance of apparent harshness or unfairness. Rather, the rules of equity intervene only to prevent a "perverse" result of the application of the law: that is, where the spirit of the law is defeated by its letter, not simply where any perceived harshness or barbarism results.
Every time a judge applies a test or considers a list of pre-determined factors or makes a calculation in accordance with a particular formula, he is engaging in what those who might wish to discredit such rigidity might pejoratively term "legalism". Each time he departs from these things in the name of justice or fairness, all he really does is substitute for these things his own judgment of what is right.
It is precisely "legalism" (which I would define as adherence to principle and enduring respect for precedent) which is the strength of the common law. To us legal realists, the law is simply what the courts do, in fact, and nothing more pretentious. It is not the attempt of human kind to approximate divine justice or create God's kingdom on earth: that is the work of Christ's Church.
The more closely the law of man can participate in the ideals and ends of the law of God, the more conducive to true justice it will be.
An Orthodox Christian with genuine faith in the substance and integrity of his spiritual values and principles will seek and desire the adoption and application of such by all.
I respect you for believing this and think it noble, but I fundamentally do not agree.
The only judge of our hearts is our Lord, God and Saviour. The work of the courts is very unlike the work of God. It is a mistake to ever try to bring these two types of judging into harmony: Tolstoy apprehended that when he wrote that it is not for any one or more of us to put another person behind bars. He was wrong, of course, but at least he correctly identified the conundrum.
Since, according to you, this happens "too often", I would love for you to refer me to some material accounting for a single case of a restorative justice program in which focus has been exclusively on rehabilitation of the offender to the detriment of any concern for the victim or the community.
I am not complaining about restorative justice programs
so much as I am complaining of the takeover of jurisprudence by the theory
of restorative justice. I think the theory of restorative justice underestimates the value of denunciation of an offender's conduct and the victim's need to see the offender suffer some loss. Restorative justice can account for these things but I think its analysis of them is strained and unnatural, as well as not true to reality. Victims don't care about "reintegration".
By the way, you are aware that restorative justice programs are not the same as rehabilitation programs?
You will note that I conceded that the other factors I enumerated can be understood within a restorative justice framework. I am well aware of the theory of restorative justice (it is as flawed as any other human theory of justice, by the way), as well as how restorative programs play out in reality (I have already said in this thread that I have been working in children's law for a few years now).
I understand that I've been somewhat dismissive before now. For that I apologise. Please, though, do not assume I know nothing of what you are speaking simply because I am not agreeing with you, especially when I have said I have at least some real world expertise.
Anyway, I meant that I was pleased to see you posting again: please consider it re-iterated.