Short primer on the origins and ethical bases of restorative justice

Simplifying a bit, it could be said that there were two basic starting points, or perspectives, for the exploration of restorative justice alternatives.

The first one was the determination that the reason conventional criminal justice approaches do not work in aboriginal communities, for instance in Australia or in Canada, is that those communities have a different concept of justice, and different methods for applying it. This is said to demonstrate that alternatives to the conventional system are not only possible, but would be better adapted to these communities. The case of the native “healing circle” and other like schemes are paradigmatic of this perspective.

This has led many to conclude that these alternatives would be beneficial to society in general. For one thing, they appear to be sufficiently formalized processes which could be adaptated to serve other sectors of society. More importantly, the language used in support of these initiatives invariably implies that they serve communities that are still precisely that, real communities, with closer relationships, better interpersonal understanding, etc. It is usually assumed that their dispute resolution system contributes at least in part in making those communities more “community-like.” That it might be the other way around is rarely taken in account, other than through the cursory interrogation, “what is a community?” that seems to highlight or at least recognize the difficulty. The answer is usually that this question is too complex to solve and that in the mean time the nature of community life should not impede the progress of restorative justice.

In general this perspective leads to programs such as “family conferencing” schemes aimed primarily at juvenile offenders, where the community is often simply the family. The primary operational myths are, first and obviously the “community” (see Crawford, 1994), but also “tradition” — the conviction that people were generally better off before European (and yes, secular) legal models became dominant. This usually involves semi-philosophical musings such as: “‘deterrence’ has the same root as ‘terror,’” and “the other meaning of the English word, ‘deserts:’ barren places where nothing grows” (Wright, 1992: 530, 531), anchoring it firmly in “new-age” ideology. Other times the perspective is Christian (e.g. Umbreit, 1985; Zehr, 1995), calling on the religious versions of concepts like forgiveness, truth, love, etc.

The second, more technical perspective on restorative justice arose with the observation that the penal reflex in Western societies in general is not “working,” at least in some situations. Depending on the speaker this can mean that 1) it is not effective in solving interpersonal problems, or 2) that the penal solution is an additional burden to the community (prisons breed crime, cost too much, are overpopulated, etc.), or 3) that it is “unjust” under one or another conceptualization of social justice. The determination of exactly where and when the system “fails” being dependent on the researcher’s basic assumptions.

In this case the concrete alternative being recommended is usually that of mediation, and what was referred to as a crime is called a dispute. This is much more technical than the first perspective above, and usually relies on countless procedure manuals for effective mediation and the research largely consists in evaluating and comparing the results of different methods in different contexts or countries (e.g. Burdine, 1990, Messmer and Otto, 1992, Wright and Gallaway, 1989).

This model has been widely used in private enterprise, especially in contract grievances and minor breaches of company rules, or even more serious ones that are better kept out of the public system because of their potentially negative effect on customer confidence (e.g. embezzlement within financial institutions). The operational myth here is the managerial/administrative one of rational, efficient solution.

These two perspectives are not mutually exclusive, and certainly not contradictory, they are often used by different people to describe the same programs or institutions. On one hand, they certainly illustrate the different meanings and circumstances of production of a language of “alternative responses to crime” — regardless of the actual contents of the responses. On the other hand, they do articulate some common principles in different visions of what may be called restorative justice: we can see restorative justice solutions as (1) based in the perception that the criminal justice system is not working properly, that it does not serve the community well. They also (2) try to involve the main characters, victims, perpetrators, and sometimes other members of the community, as participants. Finally, they (3) focus on repairing damage done and exclude strictly punitive measures.

On the whole, restorative justice alternatives are usually rhetorically positioned in very strong contrast to the conventional retributive model. For instance, Braithwaite and Pettit’s (1990) “republican theory of justice” is an ambitious effort to lay the jurisprudential bases for grounding restorative justice (as in Braithwaite, 1989; 1990: viii), in formal ethical principles rather than in simple utilitarian logic. Beyond prison overcrowding, recidivism, dwindling resources and “victims’ rights,” he and Pettit establish ethical and legal criteria meant to objectively justify a restorative approach, principally in response to the classical Kantian, retributive or “just deserts” legal philosophy (Hart, 1960, 1968; Hodson, 1983; Kant, 1796; Lacey, 1988; Rawls, 1955; Reiman, 1990; Von Hirsch and Ashworth, 1992).

In opposition to that formalism based on deontological precepts the suggested approach is a “consequentialist” one, meaning that the system must be designed to maximize the citizens’ freedom (understood as egalitarian liberty in a holistic social context, see p. 63-5) or to “restore any lost sense of empowerment” (Braithwaite, 1996: 10. This is not utilitarian per se, because the “consequence” or goal of the system is internal to its participants; in other words, individuals are never taken as means to an end — they are the ends. Making both the victims and the offenders free subjects, and giving the justice system the imperative of maximizing freedom allows for an approach where both the past loss of freedom (the victimization) and the future assurance of its reestablishment and guarantee meet in a single solution. The interests of the victim, the offender and the community are served all at once: the victim is recognized and compensated, the offender can meet his responsibilities and be reintegrated, and the community gets a lesson in justice and freedom.

In my opinion, "restorative justice" is not justice, but neither is "punitive" justice. They are what I would call "remedies to criminality" that inherit the automatic and unquestionable legitimacy of "justice" purely by association. Justice is one of these words that never sounds like it raises any form of problem. Once one calls something "justice" the only possible question becomes: "is it really justice?" and never "how many kinds of justice are there?" In effect, justice has an aura of mathematical certainty and objective reality--conveyed for instance by its symbol, the scales--that actually fits neither punishment or "restoration" in any of their many forms. Before adopting any remedy to criminality, the proper question should not be, "is this really just" but rather, "what is this going to accomplish in this particular situation?"