Book Review: Reconstructing restorative justice philosophy

Giuseppe Maglione takes a  Foucauldian perspective, which unfortunately leads him to use opaque phrases such as ‘surfaces of emergence’ and ‘authorities of delimitation and grids of specification’.  He sees restorative justice as an outcome of the failure of criminal justice, and makes the good point that privatisation of services removes decision-making from public scrutiny to boardrooms.  RJ depends much on ‘gatekeepers’ who make (or don’t make) referrals, Anne Hayden points out;  she might have added that they can’t make referrals unless a service is locally available.

Part II presents case studies in contemporary society.  Rob Mackay looks at the nexus between rights and RJ, with sexual abuse by priests as a case history.  He points out that the restorative movement encompasses non-criminal harm.  Harmful acts damage self-confidence, self-respect and self-esteem, which all involve recognition by others;  he might have added that offenders, for their part,  are damaged by punishment. Turning to the global scene, Christodoulos Yiallourides and Mersilia Anastasiadou argue that in the absence of a central authority, international relations are anarchic, dominated by power and increasingly by money.  

Most humans live in the ‘structural violence’ of poverty, malnutrition and inequality.  Non-governmental organisations can also act globally, to resolve inequality, but can be hindered by the Great Powers.  Power also concerns Maria Schiff, with regard to institutionalising RJ;  to survive, RJ may have to embrace existing institutions and gradually change them, with the risk of itself being co-opted. It has no implementation strategy to co-opt the co-opters and insinuate its own values. She proposes Peter Senge’s theory of ‘learning organisations’ as a model for sustainable RJ, taking small steps to overcome social injustice. 

For Susan Sharpe, the key to RJ is that it is a relational, not atomistic, theory of justice:  it looks for a coherent, co-created narrative rather than yes-or-no answers to lawyers’ questions. The West sees offenders as individuals;  elsewhere, she says, people’s interconnectedness is recognised, though she omits the conflicts between many tribes and religious groupings. 

Canada is taken as an example by Brenda Morrison, with its criminal code ordaining no deprivation of liberty if less restrictive sanctions may be appropriate.  The purpose of sentencing should be reparation to the victim and the community;  it would have been appropriate to mention the community’s parallel duty to address pressures towards crime, such as inequality.  RJ is an opportunity to involve the community, but it lacks adequate funding, data collection, and a transformative politics [not only in Canada!]. She holds up Nova Scotia as a hopeful model.  For international conflicts, for example over resources and territory, Maria Hadjipavlou proposes interactive problem-solving workshops, providing space for the weaker party to confront the more powerful;  but both parties have to be willing.  

‘Back to basics for RJ’ is the title of Part III, beginning with concern for Aboriginal peoples subject to oppressive laws. Restorative questions now include ‘What are the root causes of the harm?’  Judith Oudshoorn says that sentencing circles claim to respect Aboriginal traditions, but if (mostly white) judges can overrule them, they should be re-named ‘Recommendation circles’.  Another Canadian, Evelyn Zellerer, argues for giving power to the people, but only after agreeing values, which would not include punishment and just deserts.  She analyses the degrees to which RJ can be applied:  as a ‘cog in the CJS wheel’, a parallel track, a preferred process with the CJS as a backup, a hybrid system, or a unitary approach replacing the CJS.  Values such as respect, mutual care, reparation and non-domination can be promoted by the use of peacemaking circles.  

The African concept of ubuntu is presented by Marelize Schoeman:  ‘a person is a person through other persons.’  Offenders are not shunned but guided to understand the impact of their wrongdoing and accept responsibility.  This theme of interconnectedness and relationships recurs throughout the book, but once again your reviewer wondered whether it should be matched by acceptance by the community of responsibility for ‘root causes’ of wrongdoing, as Oudshoorn proposed.  Ubuntu could become a universally acceptable world-view, within which RJ would be the response to crime.  This could work in Africa – but Schoeman doesn’t mention the Islamic areas of that continent.  

The new vision of Theo Gavrielides is ‘restorative pain,’ an interesting [neo-Euclidian?] way of squaring the circular debate about whether RJ is punishment or should replace it.  The point is not that it hurts, but that it involves obligations; catharsis comes from the knowledge that one has hurt another person and the opportunity to make it right.  The offender is ‘one of us’ and should be treated not with control and power, but with care.  With Artinopoulou, Gavrielides contributes the epilogue.  While they do not try to fit RJ into the cage of conventional legal thinking, they are not abolitionists, but synthesists, arguing for both a top-down, structured approach based on law and a bottom-up, unstructured one based on fairness.

Although the book says little about restorative practices, it makes a case for broadening the concept of RJ to include ways of living together and resolving disputes, not necessarily through conferencing, but emphasising our relationships with each other.  Hopefully, it can help to build a fairer society;  less hopefully, it will have to wait for a fairer society before it can take root.  It is a coherent and attractive vision;  what it needs, as some contributors point out, is a strategy to put it into practice.