He then moves into less traveled terrain by exploring the socio-ethical foundations of restorative justice. Why is it right to prefer restorative justice even if it turned out to offer no instrumental advantages over criminal justice? He considers Boutellier’s suggestion that rather than linking ethical demands “to either God or a collectivity of the kind Durkheim has in mind,” today’s secular and pluralistic culture appeals for guidance to the “position of the victim,” what he calls the “victimalization of morality” (p. 72). While the needs of victims are a central concern of restorative justice, Walgrave concludes that victimalization does not provide an adequate ethical basis for restorative justice. Similarly, Gilligan’s ethics of care justifies a one-sided responsibility that seeks to rehabilitate the offender and care for the victim whereas restorative justice promotes double-sided responsibility in that both victims and offenders must take active responsibility for some things as well as receive care.
Some propose community as an ethical foundation. This word is often used in restorative justice literature and presentations, but it is one that Walgrave finds wanting. First, it is spoken of as though it were a particular area – there are people in and outside the community – but in actuality community seems to be a “subjective psychological entity” to those who speak of it. My community is made up of those whom I count as part of my network of important relationships. Someone else’s community is similarly subjectively constructed. So the notion of community is too amorphous to form the foundation of a robust theory. Second, it is spoken of as though communities are everywhere. But their very subjectivity means that they may not really have an objective existence. I may consider two people as part of my community while one of them does not consider me part of hers. Where precisely is the community in that case? Can we even say that there is a community? Third, if they do exist, there is no reason to suppose that communities are always and necessarily “the heavens of reciprocity and mutuality nor … the utopias of egalitarianism that some might wish,” as Crawford points out (77).
Yet there is something to the intuition that has led restorative justice proponents to refer positively to the idea of community. That intuition is captured well, Walgrave says, by communitarianism, which speaks of the ethics and values that should shape our lives together rather than of areas or locations. And communitarianism appeals to Walgrave because he believes that those values are in his self-interest. He therefore proposes what he calls “common self-interest” as the ethical foundation for restorative justice. Common self-interest posits that individuals are best off where there is both “[c]oncern for the quality of social life and belief in the potential of ordinary people to find solutions” (75), rather than where achieving social order is the guiding value. In the former, relationships and opportunities for individuals in those relationships to achieve their potential are valued more highly than is simply following rules. In the latter, the reverse is the case.
If common self-interest is the norm, then sympathy or empathy offers a way of developing an internal commitment to that norm. The latter is an emotional intuition and the former is a “more cognitive, more socially constructed vision” (86).
Walgrave then argues that there are three key values or attitudes that offer ethical guidance in living out common self-interest. The first is respect, which is based on the recognition of the other’s intrinsic value. “Respect for human dignity is a bottom-line obligation for all social institutions…. Disrespect is actively rejected” (89). The second is solidarity, which involves more commitment to the others than does respect. It carries with it a sense of reciprocity that encourages us to “bundl[e] our individual self-interests into the project of common self-interest” 89. But we must have solidarity even with those who cannot reciprocate, with the weak and powerless, in order to prevent the expansion of the gap between haves and have nots, a gap that will lead to competition rather than cooperation. The third is active, as opposed to passive, responsibility as the linkage between people and their actions. Responsibility requires that we address the consequences of our actions, and criminal justice and other top-down systems satisfy this by forcing the offender to do so. This is better than no responsibility at all, but it is better still for the offender to take active responsibility because of an inner sense of duty.
Walgrave then considers the research that has been done of restorative practices, concluding cautiously that it appears that victims are more satisfied with restorative justice than criminal justice, as are offenders. What about repeat offending? Lode reviews recent studies and finds them confusing and sometimes contradictory. However, there is reason for cautious optimism in that research on both “what works” in changing people and “what helps” in assisting people to change (the latter from Ward and Maruna’s Good Lives Model) seem to indicate that the sort of processes found in restorative justice should lead to lower recidivism. Why is this? Walgrave suggests that restorative justice takes offenders through experiences that may generate a sequence of moral emotions and behaviours such as empathy and compassion, remorse and guilt, apology, forgiveness, and restoration of dignity. These provide motivation for change for both victims and offenders.
Walgrave makes a number of interesting and worthwhile suggestions for how restorative justice might be institutionalized in a criminal justice system. He begins with Braithwaite and Pettit’s notion of dominion, which is a collective, not individual, approach to freedom. Under this notion, freedom means non-domination rather than the liberal idea of freedom as non-interference. Dominion is politically speaking what Walgrave has described as the ethic of common self-interest. Crime harms the assurance that citizens have of dominion. They have been told that others will respect the safety of their home, for example, and this confidence is threatened when a burglar breaks in, whether it is to another’s home or even worse, their own. A restorative criminal justice system seeks to restore the assurance of dominion while respecting the rights and freedoms of the individuals involved. This should be done using restorative processes with cooperative offenders, reparative sanctions for those offenders who have weighted the benefits and burdens of crime, and incapacitation of serious offenders who are irrational or incompetent. But for each of these groups, there should be opportunities provided for freely chosen participation in restorative deliberation.
Walgrave concludes his book by locating restorative justice in the larger project of participatory democracy. He looks first at the threats confronting democracy, including the shrinking participation of citizens, a view within the social sciences that crime is a normal response to injustice and oppression in society, and the increasing domination of large multi-national corporations as they become more powerful than governments, thus increasing uncertainty among their citizens. These uncertainties could be confronted directly, but that is both costly and complex. Instead, politicians are tempted to follow a kind of populist penology: if the public is increasingly afraid of crime, then pick a strategy with which the voters resonate, such as getting tougher through longer sentences. It does not matter whether there is evidence that crime is worsening or that toughness brings down crime. Nor is it important whether that is an ethical response. The important feature of penal populism is that it quickly garners the support of large numbers of people. Penal populism, Walgrave reminds us, does not make us more secure. In fact, it makes the problems worse.
This is not the sort of environment in which restorative justice can thrive for several reasons. First, restorative justice may be too complex an idea to compete with simplistic appeals. Second, restorative justice may be reformulated to fit populist rhetoric, by referring to restorative punishment or by using restorative practices in a very selective way. Third, when the goal is to reduce crime, the actual victims and offenders lose influence. The broad goal of safety trumps the specific objective of restoration.
Nevertheless, Walgrave suggests that restorative justice can contribute to the revitalization of democracy because its values (respect, solidarity and active responsibility) lie at the core of healthy democracies. These values are not self-evident; they need to be taught. Families are one place where this may happen; schools are another. But, Walgrave says,
Being involved in a restorative justice process is a revealing learning experience. Participants face their opponents, who appear not to be enemies but ‘fellow travellers’; they experience the power of mutually respectful deliberation, and they feel satisfaction in an outcome that may be less materially profitable but more personally and relationally beneficial. They understand that promoting the common interest can be rewarding for self-interest. They also experience that what they say matters and really makes a difference in the decision. (195)
The authors of Doing Democracy with Circles: Engaging Communities in Public Planning agree that democracy needs help, particularly in addressing local issues. The book is written for public planners and argues that circles, a technique used in some restorative justice programmes, offer distinct advantages over the typical public hearing at which people make speech after speech with little real dialogue or mutual understanding.
The book was written by Jennifer Ball, Wayne Caldwell and Kay Pranis. Ball and Caldwell are both members of the Canadian Institute of Planners with experience in rural planning. Pranis is well-known in the field of restorative justice for her groundbreaking work with circles. The publisher is Living Justice Press, which continues to make wonderful resources about circles available to the rest of us.
The authors of the book place this use of circles squarely in the tradition of the democratic project in the US. They note that democracy is an ideal, but that too often the results are much less than ideal. An African American circle keeper, when she learned what about the title of the book, said “...From what I have experienced, democracy is where people who speak the loudest win, where people who have the most power, money or privilege win. It is a feel-good word that doesn’t actually mean what people say it means. It just creates more harm.”(6) Representational democracy means that the marginalized and minority populations will not be taken seriously.
A good deal of the book outlines circle processes and will be familiar to many RJOB readers. But it is nonetheless instructive to observe how the authors present this deliberative process to public planners. While public hearings often produce great emotion and seem to entrench people in their positions, circle processes are different. Everyone sits in a circle and each speaks as a “talking piece” is passed around the circle. This discipline gives everyone the opportunity to say what they want and, perhaps more importantly, gives everyone else the opportunity to truly listen. Where in a different sort of meeting participants might use the time when others are speaking to formulate what they are going to say, talking around a circle means that there is no point in doing that. So participants are more likely to listen to what the others are saying.
In addition, at many public hearings each speaker gets one opportunity to say his or her piece, and a limited time in which to do that. There is often no chance to respond to others or to identify points of agreement or difference. Circles allow both to happen, although the purpose is not simply to allow everyone to speak and listen, but to begin find a way forward through the application of common values and the wisdom, training and experiences of the people in the circle.
One of the strengths of the book is that it presents case studies. A remarkable story concerns the attempt by the Oregon Department of Corrections to establish in a particular neighborhood a transition home for male sex offenders coming out of prison. A circle facilitator offered to convene a circle of the neighbors if the Corrections planner agreed to accept the community’s decision. Her account of what happened during the circle process alone is worth the price of the book. Suffice it to say that attitudes about the transition home changed so dramatically that when the state closed the home three months later, community members were upset!
Not all case studies had this kind of result. But in each instance there was improved communication and increased understanding. Conflicts and difficult issues did not disappear, but the participants who gathered for the circles had a deeper appreciation of the values that all of them shared. Each was able to experience a process that encouraged respectful communication. And in some instances they were given opportunities to participate in implementing agreed-upon changes.
Solidarity, respect and active responsibility. Ball, Caldwell and Pranis compellingly demonstrate the point that Walgrave made as well: restorative processes such as circles can help build the foundational values essential to true democracy.