Restorative Justice, Self-interest and Responsible Citizenship

Lode Walgrave

• Publisher: Willan
• Year: 2013
• eBook ISBN: 9781134007707
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Lode Walgrave has made a highly significant contribution to the worldwide development of the restorative justice movement over the last two decades. This book represents the culmination of his vision for restorative justice. Coming to the subject from a juvenile justice background he initially saw restorative justice as a means of escaping the rehabilitation-punishment dilemma, and as the basis for a more constructive judicial response to youth crime that had been the case hitherto. Over time his conception of restorative justice moved in the direction of focusing on repairing harm and suffering rather than ensuring that the youthful offender met with a 'just' response, and encompassing the notion that restorative justice was not so much about a justice system promoting restoration, more a matter of doing justice through restoration.

This book develops Lode Walgrave's conception of restorative justice further, incorporating a number of key elements.

• a clearly outcome-based definition of restorative justice
• acceptance of the need to use judicial coercion to impose sanctions as part of the reparative process
• presenting restorative justice as a fully fledged alternative to the punitive apriorism
• development of a more sophisticated concept of the relationship between restorative justice and the law, and acceptance of the need for legal regulation
• a consideration of the expansion of a restorative justice philosophy into other areas of social life and the threats and opportunities this provides
• a consideration of the implications of the expansion of restorative justice for the discipline of criminology and democracy

Chapter 1

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Focusing on restorative justice

Restorative justice is an unfinished product. It is a complex and lively realm of different – and partly opposite – beliefs and options, renovating inspirations and practices in different contexts, scientific ‘crossing swords’ over research methodology and outcomes. Restorative justice is, at the same time, a social movement with different degrees of self-criticism and a domain of scientific research with different degrees of methodological adequacy. It is a field on its own, looking for constructive ways of dealing with the aftermath of crime, but also part of a larger socio-ethical and political agenda.

Understandably, it is not easy to define what the concept encompasses. Is it a (series of) practice(s)? Is it a (utopian) view? What is the core, what are the essentials of restorative justice and what is derived or secondary? A generally accepted definition cannot be provided; there is none. What is possible, however, is to try to get a sharper view of the vague contours, to focus the lens. But like a photographer who takes his pictures from a certain position, I can only sharpen the view from my own standpoint, which differs in some ways from the views of other authors. My presentation thus unavoidably includes a number of particular options which will sometimes deviate considerably from the mainstream of restorative justice.

The emergence of restorative justice in modern times

Ancient wisdom

Restorative justice is not a recent invention. Some authors suggest that a reparative response to injustice was for a long time the dominant model in earlier times (Zehr 1990; Weitekamp 1999; Van Ness and Heetderks Strong 2006). It sounds reasonable. One can understand that primitive small communities or tribes could not afford exclusion or enduring conflict in their midst, because the struggle for life needed intensive cooperation and mutual support. The tribes probably tried to find constructive solutions to internal conflicts and to avoid the exclusion of individuals as much as possible. According to this view, it was the centralising of power which gradually shifted the meaning of norm transgression away from harming another individual or the group to breaking the ruler's law. The settlement of the aftermath of law-breaking was taken away from its main proponents, and reparation for the victim became subsidiary to punishment to enforce compliance with the law. From that perspective, the state has done much damage to the quality of conflict resolution in communities. Or in Christie's view, the state stole the conflict from its owners (Christie 1977).

Other authors, however, reject this view as being romantic and based on an unscientific approach. It is ‘a kind of foundational myth about the “naturalness” of RJ’ (Bottoms 2003: 88). On the contrary, a history of escalating violence and revenge is suggested (Sylvester 2003; Miller 1999). Experienced injustice and damage were responded to by counteractions, undertaken by the victims, their families and their clans. The emergence of central power then gradually blocked this violent private retaliation, replacing it with an increasingly sophisticated, legally ordered system of punishment. Such a view supports Elias' theory on civilisation: violence in communities was reduced and monopolised more and more in the hands of the state (Elias 1994).

As an amateur historian, I draw two lessons from these contradictory positions. First, there may be a problem with the methodology of ‘objective’ historians. As it is based predominantly on written sources, it may lead to a relative underestimation of restitutive responses. Often, compensation and the associated negotiations were informal and occurred among illiterate people. No authorities or other literate agencies were involved, so that written indications of such resolutions may be scarce. On the other hand, violent settlements probably came more to the attention of the central power, entailing a powerful intervention to stop them. More written reports of such incidents can be expected, so that the number of conflict settlements imposed by central authorities may be overestimated in historians’ reports.

Second, the reality was probably not uniform, but mixed and varied, with different degrees of violence and reparative agreements. Moreover, the way of handling disputes and injustices must have developed differently in different communities and societies (Bottoms 2003). It seems plausible that compensation and restitution have been important ways of responding to injustices, but also that violent settlements occurred spontaneously as revenge or when deliberation appeared not to be possible or no agreement was reached (Schafer 1977). Gradually, rules ordered the amounts and types of compensation and other settlements, and that contributed to reducing the duration of conflicts and violence. But as the state power became stronger and stronger, the scale tipped and punishing the law-breaker overtook repairing the harm. Probably, restitution and compensation have always been practised, but their scope and prevalence in the past is uncertain and probably variable over communities and periods of time.

It is well documented, however, that moral guidelines and virtues that are consistent with the currently advanced principles of restorative justice have been promulgated over time. Texts of the great spiritual traditions – Buddhism, Christianity, Confucianism, Hinduism, Islam, Judaism – promote crucial restorative values such as mutual respect, compensation, apology and forgiveness (Hadley 2001).¹ Practices described in ancient Arab, Greek, Roman, German, Chinese, Hindu and other societies bear witness to restorative values (Braithwaite 2002a; Van Ness and Heetderks Strong 2006). It seems obvious, therefore, that the moral values underlying restorative justice and restorative-type practices are deeply rooted in ancient wisdom, even if their predominance in practice may be uncertain.

Indirectly, this is confirmed through the recent emancipation of native peoples. In New Zealand, for example, Maori tradition inspired the ‘invention’ of family group conferences (Adler and Wundersitz 1994); in North America, Native traditions grounded the recognition of sentencing and peacemaking circles (Yazzie and Zion 1996; Jaccoud 1998); in South Africa the Truth and Reconcilation Commission and other forms of conflict regulation were based on the Zulu ubuntu philosophy (Louw 2006). Whereas the use of these ancient traditions in modern practices is not unproblematic and often based on romanticised visions (Cunneen 2007), their ways of dealing with injustices appear, in many cases (but not all), to be primarily oriented towards objectives such as encounter, community involvement and reparation (Zellerer and Cunneen 2001).

In fact, restorative concerns in the response to norm transgression never disappeared completely, but over many centuries they have been subordinated by the punitive mainstream. In 1900, for example, Tallack wrote that ‘reparation as the chief, and often whole, element of punishment was wiser in principle, more reformatory in its influence, more deterrent in its tendency and more economic to the economy’ (in Weitekamp 1992: 84). All this does not mean, of course, that ancient or native practices can simply be copied and applied to our modern societies and cities (Johnstone 2002; Sylvester 2003).

Modern roots

In its modern form, restorative justice reappeared against the background of neo-liberal criticism of the welfare state, which aimed at imposing more responsibility on individual citizens, including those in trouble, and of communitarian objections against state institutions, which were considered alienating and inappropriate to deal with real life. In business regulation, alternative dispute resolution (ADR) was one of the first expressions of citizens claiming space outside of the judiciary to regulate their conflicts informally.

Many interconnected tendencies have influenced the re-emergence of restorative justice more specifically, such as feminism, decarceration movements, indigenous peoples’ emancipation movements and options to reconfirm the responsibility of (young) offenders. The most important roots can be grouped into three tendencies (Faget 1997; Van Ness and Heetderks Strong 2002).

Victims’ movements, often intertwined with feminist themes, claimed an expanded role in criminal justice (Strang 2002). Initially, they were focused on promoting the victim's rights in his² conflict with the offender, and held a strict oppositional view on victims’ and offenders’ interests. In their ‘zero-sum’ approach to justice (Strang 2002: 199), the more attention that is paid to the offender's rights and needs, the less space there is for the victim's interests. They strongly support the punitive aspect of criminal justice. While this punitive tendency is still active,³ many victims’ advocates today are oriented towards a broader consideration of the social, personal and juridical needs of the victims. They now understand that simply making a coalition with the traditional criminal justice system is often counterproductive for the victims. More than boosting punishment of the offender, seeking reparation and compensation may result in deeper and continuing satisfaction. Deliberation, rather than enforcement, may contribute to peace of mind (Peters and Aertsen 1995; Dignan 2005; Cario 2005).⁴

Another source of restorative justice is communitarianism. As a reaction to the fragmentation of our postmodern Western societies, some propagate the revival of community as the organic source of informal mutual support and control (Etzioni 1998). Communities are at the same time seen as a means and an end for restorative justice. They are a means in that communities are the ‘niches’ in which reintegrative shaming and restorative processes can take place (Braithwaite 1989); they are an end, because it is believed that achieving restorative processes in a community is constructive for the revival of community life (Bazemore and Schiff 2001). Within the communitarian agenda, restorative justice has been strongly inspired by religious beliefs (Hadley 2001), as appears from the spiritual basis of the Victim Offender Reconciliation Program (VORP) in Kitchener (Ontario, Canada), which is often mentioned as the roots-project of restorative practices, and through the publications of one of the founding fathers of the restorative movement (Zehr 1990). The communitarian agenda has also been boosted by the emancipation of native people, especially in North America and New Zealand. Their community-based, peace-oriented and deliberation-driven ways of dealing with conflict and norm transgression have deeply influenced restorative practice and thinking (Zellerer and Cunneen 2001).

Especially in the 1970s and 1980s, critical criminology pointed to the counterproductive effects of criminal justice and its incapacity to ensure peace in social life. Critical criminologists partly endorsed the communitarian agenda, but often framed their criticisms in a structuralist, Marxist perspective. Abolitionists argued for the scrapping or phasing out of the criminal justice system, in order to replace it by a bottom-up deliberative model of dealing with conflicts (Christie 1981; Hulsman and Bernat de Celis 1982; Bianchi 1994). Inheritors of this tendency proposed restorative justice-like alternatives (De Haan 1990), or have turned to restorative justice as the mainstream alternative to criminal justice (Blad 1996a) or to youth justice (Walgrave 1995; Bazemore and Walgrave 1999).

Practices have evolved since the early 1970s in the USA and Canada (McCold 2006) and in Europe (Pelikan and Trenczek 2006). Originally, there were a number of isolated initiatives, which did not refer at all to a restorative justice concept. It is only since the late 1980s and early 1990s that restorative justice has really begun to take off. All the tendencies and movements, and a multitude of separate intuitive initiatives, have led to a realm of practices, social movements, theory-formation, ethical reflection and empirical research, which is now referred to as ‘restorative justice'. The application of its principles is spreading far beyond criminal matters, penetrating the regulation of disputes and problems of discipline in schools, neighbourhood conflicts, child welfare and protection matters, labour and business regulation, and even the resolution of conflicts involving systematic political violence.

Given its diverse roots, its broad field of implementation and the current variety of forms, it is not surprising that restorative justice does not appear as a clearly defined set of thoughts and implementations, but as a rather confused, seemingly even incoherent, assembly. Adding to the confusion are apparently similar movements, under banners such as transformative justice, relational justice, community justice, peacemaking justice and the like.

In search of the essentials

Different and even competing visions of restorative justice are presented in the literature (McCold 1998; Dignan 2002). Roche, for example, distinguishes between value-based concepts of restorative justice and process-based ones (Roche 2001; see also Johnstone 2004). Process-based concepts focus on the process by which the aftermath of an offence should be dealt with, while value-based concepts underline the broader social values driving the movement for restorative justice, and include non-criminal conflict settlements inspired by the same restorative justice values. Johnstone and Van Ness (2007) present restorative justice as a ‘deeply contested’ concept, the subject of debates and differences in options and versions. They distinguish an encounter conception, a reparative conception and a transformative conception of restorative justice. While there are overlaps and connections between these conceptions, considerable distinctions also exist. As a consequence, seeking consensus on one single definition is an impossible mission. But clarity is what we seek in this volume.

For a restricted approach

There is a tendency to extend the notion of restorative justice to other deliberative practices in resolving conflicts and injustices, or even to recall it as ‘transformative justice', to transform social life through a deliberative inclusionary ‘life style’ (Sullivan and Tift 2006a). Roche, for example, writes that ‘… restorative justice consists of much more than just these criminal justice programs’ (2006: 217), and he then describes practices in social welfare and in education, alternative dispute resolution in civil matters, deliberative modes of corporate regulation, truth commissions and models of community governance in so called weak states, and restorative justice in diplomacy between states. These practices indeed share ‘an emphasis on informal, inclusive deliberation, rather than adjudication, and a determination to find outcomes that minimize harm and strengthen relationships’ (Roche 2006: 218). They are guided and inspired by values and visions which also underlie and drive restorative justice. These values will be developed gradually in Chapters 2, 3 and 6. They refer to a conception of social life and democracy, which is for me the basso continuo in my pursuit of more restorative justice.

But I do not include them in ‘restorative justice'. I opt for a more restricted interpretation of what restorative justice is and focus on the way the aftermath of offences is to be dealt with. In Johnstone and Van Ness's terms (2007), my option is best classified under the reparative conception of restorative justice.

Values are not restorative justice in the strict sense of the word. They are socio-ethical and/or ideological beliefs, over which restorative justice does not have the monopoly. The same values and visions drive and inspire many other movements in social policy and political engagement. They ground practices that use the same deliberative processes to deal with other non-criminalisable conflicts and injustices, in other social contexts. I do not include these ‘restorative extensions’ in my restricted approach, because they deal with different matters, in different contexts, with different actors and sometimes even with different purposes.

School problems, for example, do not have the same public dimension as offences; the roles of ‘victims’ and the ‘perpetrators’ are less pre-established in school than is the case in criminal justice matters (while restorative justice processes often reveal that the official victim is at least partly also an offender and that the official offender has also been victimised); unlike in the criminal justice arena, the actors involved in school problems do live in a close local community; the school context and its interventions are primarily pedagogical, which is not true for a crime settlement; the relationship between students, teachers and school direction is typical and will imbue the whole process. These differences require (slight) adaptations to the underlying philosophy and theory and the practices. These practices are extremely worthwhile as such, because they contribute significantly to the wider socio-ethical movement. School conferencing and family group conferences after offences are mutually inspirational, but they are not the same.

Being clear about restorative justice is crucial, for three reasons.

1 The coercive dealing with criminalisable matters must be kept within clear limits. Such matters are intrinsically different from other injustices and conflicts. Only in criminalisable matters are social interests considered to be threatened to the extent that they may be defende...

Table of contents

• Cover
• Half Title
• Full Title
• Copyright
• Contents
• Foreword and acknowledgements
• Introduction
• 1 Focusing on restorative justice
• 2 Restorative justice and criminal punishment
• 3 Common self-interest: seeking socio-ethical grounds for restorative justice
• 4 Examining restorative justice practice
• 5 Designing a restorative criminal justice system
• 6 Democracy, criminology and restorative justice
• Epilogue: a list of to-do's
• References
• Index