Punishment Theory, Holism, and the Procedural Conception of Restorative Justice

Source: (2003) Utah Law Review. 2003(1): 205-302. University of Utah S.J. Quinney College of Law. Downloaded 13 October 2003.

Punishment theories, argues Erik Luna, are characterized by an adversarial approach common in academic and philosophical argument. Such theories appear driven by three objectives: demonstrate the superiority of their approach to criminal sanctioning; subject all other theories to harsh criticism; and repair their own theory from damage inflicted by attacks from other theories. In Luna’s view, the result is an unwinnable war of critiques within an ethos of mutual exclusivity. The consequences extend to actual penal law and practice, with politicians and movements co-opting theories to justify otherwise irrational sentencing policies. The roots of this problem, according to Luna, lie in the atomistic and linear style of theoretical reasoning. That is, traditional theorizing begins with atoms of knowledge (general, fundamental, and universal principles) and employs them in highly linear reasoning to produce a particular punishment for every case. In contrast, Luna proposes that the atomistic nature of theorizing and disputation be abandoned in favor of a more holistic approach to punishment. In this approach, it is possible to incorporate various sanctioning theories to resolve particular cases. Individuals may disagree on the precise theory of punishment but come to agreement on an appropriate sanction for a given crime. Luna then applies this approach to restorative justice in particular. Specifically, he maintains that a procedural conception of restorative justice (which is otherwise construed by advocates as a substantive theory) allows distinct perspectives to contribute to an appropriate outcome without necessarily assenting to the same theory.