At the 2nd National Conference on Restorative Justice in San Antonio, Jennifer Llewellyn spoke of the importance of relationships. “We live in a relational universe,” she said. This is why restorative justice is so powerful – it addresses something real, something that is part of the fabric of life itself. Relationships are core to who we are.
I think she is right. Of course particular relationships may be disordered and twisted. The point is not that they always accomplish their purposes in the development of strong individuals, families, and communities. It is this: even when they fail, our response is not to campaign for the elimination of relationships. Instead we work to repair them to the extent possible, and to restore the individuals in them who have been harmed.
I believe that we also live in a moral universe. While many laws are the result of the influence of special interests, there are certain core values to which we commonly assent. This is the familiar distinction between actions that are mala prohibita (wrong because it is prohibited) and those that are mala in se (wrong in and of itself).
Let me illustrate. The reason that homicide rates are a good way of comparing crime among countries is that murder is the highest-reported crime in virtually all countries and murder is against the law – it is acknowledged as wrong – everywhere.
The legal definition of murder may vary, and certainly enforcement does. In some countries governments or other powerful forces murder with impunity. But the argument is never made that murder is right. At most, it is that it is necessary to accomplish a greater good. And even then, future generations and international law frequently end up challenging that justification.
Why is this important in the context of restorative justice? First, acknowledging a moral universe gives us a framework in which to speak of justice and injustice. Injustice is wrong and needs to stop. Those who benefit from it need to be held accountable and those who were harmed should be cared for (e.g., Bernie Madoff’s fraud).
There is a difference between death by natural causes, by murder, and by negligence. In all three there is death and the loss that this causes. But when death is the result of willful or negligent acts, there is further injury: the reality that but for the actions of another it would not have taken place. That is an additional injury to the survivors, and to the entire community, because the act should never have happened.
Second, it allows us to judge behaviour without drawing final conclusions about the character of the people who did the deed. In The Gulag Archipelago, Alexander Solzhenitsyn wrote about a lesson he learned in prison, “Gradually it was disclosed to me that the line separating good and evil passes not through states, nor between classes, nor between political parties either, but right through every human heart, and through all human hearts.”
We can assess the actions of others but we do not – should not - need to determine whether those who do wrong are good or evil. Some peoples’ lives appear to be so intertwined with either good or evil that we call them saints or monsters. These are, of course, exceptional conditions; most of us act with some combination of both.
But within every saint is the potential to do wrong; in every monster lies the potential to do good. This is why restorative justice is so effective as a means of moral education. The injustice the parties discuss is connected to a broad, communal sense of justice but is also particularized into the specific circumstances of that crime.
We need not concede moral judgment to retributivists. Retribution is one form of response and of moral education. Our argument is that restorative processes are better at producing a just response, at holding offenders accountable, and at teaching values.
If we lived in a universe that was only moral, then retribution might be an effective response. But because the universe is also relational, justice must be relational. I believe that restorative justice achieves better results than conventional criminal justice because it recognizes both attributes.