Restoring what? The practice, promise and perils of restorative justice in New Zealand

To speak of crime as injury is not mere emotionalism; it is how victims actually experience crime and other injustices. Victims usually know themselves to be victims because they feel violated, not because they realise some legal rule has been broken. It is the very pain of such violation, and the visceral resentment it always triggers, that helps us to locate the presence of an injustice. Philosophers may not be able to agree on how to define ‘justice’, but they can usually agree on where injustice has occurred. Injustice manifests its presence as intentional injury to the innocent and as a contemptuous disrespect of their rights. That, essentially, is what crime is too.

This leads to the second distinguishing feature of restorative philosophy: its notion of justice as the existence of right-relationships between persons. The injury done through criminal or other intentional wrongdoing is fundamentally a relational injury. It is the dishonouring of the kind of relationship that ought to exist between the parties as fellow citizens and fellow human beings. In her searing critique of restorative justice, Canadian legal scholar Annalise Acorn identifies this as the key idea that sets restorative justice apart from other theories of justice – its notion of justice as right-relation and crime as wrong-relation. For restorativists, she notes, justice does not reside in any second-order tokens, such as retributive punishment, nor in any of the procedural steps in the restorative process, such as personal encounter, confession, restitution or forgiveness. It inheres rather in the establishment of a right-relationship between parties. ‘The justice to be restored is the experience of relationships of mutuality, equality, and respect in community. And it is this extravagant ambition – this understanding of justice in terms of an idealised conception of right-relation – that is the single distinguishing element of restorative justice’ (Acorn, 2004, p.22).

…This brings us, then, to a third distinctive theme in restorative justice philosophy: its understanding of justice-making as repair. If crime injures persons at their relational core (including their relationship to themselves), and distorts the rightful conditions that bind them together in community, then justice must require the repairing or healing of the injury. This is something the punitive justice system largely fails to deliver, because punishment does little or nothing to heal, either the offender or the victim. Long ago, George Bernard Shaw put his finger on the problem of punishment for offenders: ‘If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him. And men are not improved by injuries’ (Shaw, 1961, p.26).

The problem for victims is even greater. A system that devotes almost all its energies and resources to punishing offenders has little left over for victims. It may be true in some cases that knowing that the person who wronged them is being punished may help a victim’s emotional recovery (more research is needed on this question: see London, 2011, pp.98-103). But it will only ever be of limited help, for punishment itself does nothing to redress the physical, relational, moral and material dimensions of the harm inflicted. Whatever other social good the punitive justice system may achieve (and there is some), it is not empowered to heal. Something more powerful than punishment is needed to loosen ‘the bond of victimisation’ that binds victims and offenders together in the pain and shame of the criminal event and to bring repair.

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