Social harm and social harmony

…The emphasis that different scholars and practitioners place on maximalist, minimalist or expansive notions of restorative justice, reveal the constructions of crime and the criminal that their conceptions are based on. The maximalist-minimalist restorative justice debate in the United States of America is relevant but not central to this study. I do not reproduce the debate here, instead I attempt to pick out and combine aspects on both sides of the debate that are relevant to this study and South Africa’s unequal, transitional context. This stance resonates with the ‘expansive, transformative view of restorative justice’ suggested by Harris (2004:117-141). Johnstone (2008:60) asserts that restorative justice is a social movement – a collective endeavour that seeks to transform numerous aspects of modern society and seeks ‘to bring about a set of far-reaching changes in ourselves and in existing social relations.’

…According to Mantle, Fox and Dhami (2005:1), ‘relatively little (direct) attention has been paid to the relation between restorative justice and theories of crime’. Figure 3.1 helps to focus the mind on the aspects that different theories of crime draw from, and that restorative justice practitioners base their practice on. Following Muncie’s (2000) example, a sensible place to start an analysis of restorative justice in the South African context, is to deconstruct the concept of crime, to get a clear understanding of exactly what contemporary forms of restorative justice are responding to. This is particularly necessary because restorative justice, as currently deployed primarily within the criminal justice system, is not consciously or explicitly linked to indigenous forms of justice on the African continent, but is presented as a new, western form of justice which resonates with indigenous practices.  Indigenous forms of justice, while by no means perfect, generally take a more holistic, communal approach to harms, as opposed to the more individualistic approach of the western criminal justice system.  It has been argued that restorative justice is characteristic of traditional African jurisprudence that is infused with ‘the spirit of ubuntu’, which seeks to restore, heal or mend breaches, imbalances and broken relationships (Tutu, 1999:51). This conceptual starting point focuses the mind on the powerful role of criminal law in including and excluding certain harmful acts from its definition of crime, while at the same time revealing that lay restorative justice practitioners, who work within the criminal justice paradigm, do not have the power to define. For Muncie (2000:4), ‘A conception of crime without a conception of power is meaningless.’  He argues that:

“The power to render certain harmful acts visible and define them as ‘crime’, whilst maintaining the invisibility of others (or defining them as beyond criminal sanction) lies at the heart of the problem of working within notions of ‘the problem of crime’.  Notions of crime offer a peculiarly blinkered vision of the range of misfortunes, dangers, harms, risks and injuries that are a routine part of everyday life.” (Muncie, 2000:4)

Practically, the criminal justice paradigm adopted by many scholars and wittingly or unwittingly exercised by restorative justice practitioners, limits the range of analysis and action which practitioners can apply with regard to possible causes, correlates and consequences of harmful acts that they are called upon to mediate on behalf of the state.  While some criminologists are attempting to move away from legal definitions of crime, restorative justice practitioners, who work within the criminal justice paradigm, seem to be locked into it. As Mantle, Fox & Dhami (2005:27) argue, restorative justice is closely tied to theories of individual positivism, ‘law and order’ conservatism and classicism, which all focus on the individual offender.  They state that ‘restorative justice might never be successful unless radical changes were made in existing social structures and processes’ and that the relationship between ’criminal and social justice cannot be skated over’ (p.27). 

In an attempt to overcome the confines of orthodox approaches, Muncie (2000:5) argues for the redefinition of crime as harm as, according to him, it provides the option to treat harmful acts as ‘conflicts and troubles’ which deserve restorative approaches such as ‘negotiation, mediation and arbitration rather than as criminal events deserving guilt, punishment and exclusion’ (p.5). He suggests that such a discourse would be ’less concerned with controlling, preventing and punishing and more with enabling, empowering and restoration’. Muncie believes that to work ‘within the established discourses of crime and criminal justice’, is to ‘close the door to any imaginative rethinking’ (p.6). This resonates with the work of Christie 23 years earlier. After observing a communal victim offender process in Arusha, Tanzania, Christie (1977:2) developed a model of justice that culminated in Norway’s konfliktråd, a state run facility where restorative justice processes are conducted as part of criminal justice processing, and where mediation services are offered to the general public.