Restorative Justice: An International Journal Ivo Aertsen, Stephan Parmentier, Inge Vanfraechem, Lode

EDITORIAL
DOI: 10.5235.20504721.1.1.1
An adventure is taking off. Why Restorative Justice:
An International Journal?
Ivo Aertsen, Stephan Parmentier, Inge Vanfraechem, Lode
Walgrave and Estelle Zinsstag*
The five authors, together with Gerry Johnstone (University of Hull, Book Review Editor),
form the Editorial Team of RJIJ and are all based at the Leuven Institute of Criminology
(LINC), University of Leuven (Belgium).
The idea of creating an international journal on restorative justice is not particularly
new. In the last ten years, and even before that, ideas were exchanged and plans made
on a number of occasions concerning the possibility of such an initiative. Various international restorative justice organisations, practitioners and networks of researchers put
forward proposals in this respect. However, the necessary human and financial resources
and an appropriate environment to take up such an endeavour were simply lacking. That
is, until recently.
Today, following extensive consultation with and support from a large group of key
international experts, but also with the professional guidance of a well-respected and
visionary publisher, we are delighted to launch this journal. It is our belief that the time
has come for an international medium offering in-depth, sophisticated and high-quality
forms of communication about restorative justice the world over. Restorative justice has
developed as a field of innovative ideas, evolving practices and research that is of crucial
relevance to the way justice is done and, more broadly, to working towards a more just
world.
It is obvious indeed that restorative justice is expanding rapidly. Within a few decades it has grown from a little-known idiom to a broad and ever ‘widening river’ (Zehr,
2002: 62) of innovative practices and empirical evaluations, and has become a central issue in theoretical, legal and socio-ethical debates. While its origins can be traced
back to seeking ‘alternative’ ways of dealing with minor juvenile delinquency in North
America, nowadays restorative justice practices are applied to an increasingly wide range
of crimes in all parts of the world. They are no longer limited to petty or non-violent
crimes, but extend to cases of serious attacks on the physical and moral integrity of
*
We wish to thank Monique Anderson for re-reading our text with great care.
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Ivo Aertsen, Stephan Parmentier, Inge Vanfraechem, Lode Walgrave and Estelle Zinsstag
persons, including rape, attempted murder and homicide (Umbreit, Vos, Coates &
Brown, 2007). A growing number of countries and states even provide dispositions in
their legislation that favour responses with an emphasis on participation and reparation.
International institutions such as the United Nations and the Council of Europe have
issued statements and recommendations endorsing a restorative approach to offending.
The European Union has even adopted binding legislation on the role of restorative
justice in victim policies.1
Moreover, restorative practices are increasingly being implemented in conflicts and
injustices within social institutions and social life outside of the criminal justice context. An early set of examples of ‘ordinary’ or ‘common’ problems, which can be termed
restorative justice approaches or practices, includes conflicts in schools and workplaces,
neighbourhood disputes and child welfare issues (Zinsstag, Teunkens & Pali, 2011).
Another developing area is the field of ‘transitional justice’, which relates to a wide variety of initiatives and institutions set up by new governments when dealing with crimes
committed during violent conflicts and/or by authoritarian regimes. Both research and
practice are expanding in relation to the application of restorative justice in cases of
war atrocities (Christie, 2001), on the use of restorative justice by truth commissions
(Parmentier, 2001; Parmentier, Vanspauwen & Weitekamp, 2008), on people’s opinions
in relation to retributive and restorative options for dealing with the past (Parmentier &
Weitekamp, 2011), and on the relationship between restorative justice and peace building in post-conflict societies (Aertsen, Arsovska, Rohne, Valiñas & Vanspauwen, 2008;
Braithwaite, Charlesworth, Reddy & Dunn, 2010).
At first sight, this expansion alone suggests that restorative justice principles and
practices do indeed offer a realistic response to crime and are attractive to an increasing
number of citizens, justice officials and policy-makers. No doubt, the boost has to do
with the intrinsic social value of the ideas underpinning restorative justice and with the
quality of the practices carried out all over the world. The restorative justice discourse
is probably also timely, taking place in a period of increasing awareness of the current
escalation in punitiveness and social exclusion, driving a downward spiral of insecurity,
discomfort and discontentment. Academic thinking and research have been an indispensable force contributing considerably to the quality of restorative justice practice and
theory and to its dissemination.
Nevertheless, restorative justice is an unfinished product. It is a complex and lively
realm of diverse—and sometimes opposing—beliefs and options, inspirations and practices in a number of contexts, and one can engage in a scientific ‘crossing of swords’
over research methodology and outcomes. At the same time, restorative justice is a
social movement with different degrees of self-criticism and also a domain of academic
1
2
Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing
minimum standards on the rights, support and protection of victims of crime, and replacing Council
Framework Decision 2011/220/JHA, OJ L315/57, 14.11.2012.
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research with different degrees of methodological adequacy. It is a field in its own right,
looking for constructive ways of dealing with the aftermath of crime, while forming part
of a wider socio-ethical and political agenda.
For all of these reasons, restorative justice is a rich source of reflection, research
and debate. Roughly, the field can be divided into three clearly interdependent spheres:
(1) normative and principled questions and debates; (2) descriptive, explanatory and
empirical issues; and (3) practical, organisational and institutional themes.
1. Normative questions and debates
Despite its widespread influence, there is in fact no agreement on one uniform concept
of ‘restorative justice’ and its possible reach (Cunneen & Hoyle, 2010), just as there is no
consensus on the concept of ‘criminal justice’. Johnstone and Van Ness (2007) refer to
restorative justice as ‘a deeply contested concept’ and distinguish three conceptions, one
based on encounter, one on reparation and one on transformation. Others contrast an
outcome-based definition, characterising restorative justice through its reparative objectives, with a process-based perspective, viewing restorative justice mainly as a model of
deliberation among stakeholders (Marshall, 1996). Still other views relate to a sliding
scale, ranging from maximalist versions of restorative justice, aiming at a fully-fledged
restorative criminal justice system that includes possible judicial reparative sanctions,
to diversionist options, accepting the punitive criminal justice system as indispensable,
while trying to withdraw as many cases as possible from this system towards restorative
processes (Braithwaite, 2000). There are indeed restrictive and wide concepts of restorative justice. The first focus on ‘criminalisable’ matters only, while recognising the great
value and common inspiration of other deliberative methods such as in conflict regulation in school, welfare services and neighbourhood settings etc.2 The latter wish to
include all these ‘extensions’ in the restorative justice concept itself, thereby drawing no
distinction between restorative encounters which take place under the umbrella of the
criminal justice system to address the aftermath of an offence, or in a school setting to
resolve bullying or other disciplinary problems (Cunneen & Hoyle, 2010). One option in
this regard could be to link ‘restorative justice’ to the official, state-based justice system
and ‘restorative practices’ to the non-legal field. However, informal practices of conflict
resolution may also contribute to a perception and experience of ‘justice’ in the broader
sense. While these differences and debates are considerable (and fruitful), all approaches
and definitions are grounded in a common intuition, based on socio-ethical beliefs. The
socio-ethical option seems to promote social interactions based on respect and solidarity, driven by citizens who take active responsibility and who give priority to constructive
2
The approach of Walgrave (2008) can be seen as an outcome-based definition, a maximalist version and
restricted view of restorative justice.
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solution seeking based on respectful deliberation among the stakeholders (Walgrave,
2008).
Yet, the definition debate matters. Clarity on restorative justice is indeed crucial in
discussions about the ambitions of the restorative approach. Its objectives must be indicated unambiguously in order to frame the research achievements of restorative justice
practices. Initiatives to improve the intrinsic quality of practices must be oriented by
well-defined ideas about working mechanisms. A sharp view on restorative justice is
needed to promote its sound implementation and future policy making.
Exploration of the identity and potential of restorative justice also has to face, and
at the same time might be able to challenge, the premises of traditional criminal justice.
In particular, two types of evidence are advanced to defy restorative justice ambitions.
Firstly, according to retributivist penal theories, punishment is needed to clearly mark
the wrong committed and to express and communicate the public rejection of wrong
behaviour (Duff, 2001). Secondly, only a punishment-based system can guarantee legal
safeguards, which are essential in constitutional democratic states (von Hirsch, 1993).
The confrontation between restorative justice developments and both penal and theoretical evidence has inspired ethical, philosophical and juridical discussions regarding
the sense and non-sense of the punitive premise. Legal debates cover the question of
how to combine informality and confidentiality, crucial in restorative encounters, with
the formality and public character of judicial procedures (based on criminal and/or civil
law), which are a seemingly indispensable marker of legal safeguards in a constitutional
democracy. While it is increasingly recognised that restorative justice must allow itself
to be inserted into the principles of constitutional democracy, its adherents are aware
that thoughtless institutionalisation may undermine the deeply innovative inspiration
of restorative justice (Aertsen, Daems & Robert, 2006) or even lead to a kind of imitator
paradox (Pavlich, 2005). It is an on-going argument, which essentially sets those who
believe in the fundamental value of the current punitive criminal justice system while
accepting that this system has to be improved, in opposition to those who consider that
the current criminal justice system is ‘the most dysfunctional of the major institutional
accomplishments of the Enlightenment’ (Braithwaite, 2005: 283) and try to reconstruct
a new model of dealing with the aftermath of crime and conflict.
This debate on identifying and positioning restorative justice is a long way from
being settled. In all likelihood, it never will be. But the debate requires continuous,
thorough and explicit normative theorising, based on philosophical, socio-ethical and
juridical reflection.
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2. Descriptive and empirical questions
Another sphere of reflection, discussion and research is less principled and theoretical,
but more practical. It addresses a number of questions from a broad range of topics
which includes but is not limited to the following:
•
What is really happening in restorative justice processes?
•
What do we know about the applicability and scope of restorative justice practices?
•
What types of cases are being dealt with, and what are their main characteristics?
•
Does restorative justice reveal the same selectivity in types of crimes dealt with as the
criminal justice system does?
•
Is restorative justice not appropriate for certain types of crime, or under which conditions might it be?
•
How broadly are restorative practices applied in a non-criminal context?
•
What are the effects of training in school mediation?
•
Which restorative elements can be included in dealing with environmental disputes?
•
How realistic is it to rely mainly on the voluntary willingness of victims and offenders to settle the aftermath of crime?
•
How should restorative justice processes be initiated to make them appealing?
•
To what extent are stakeholders capable of ‘looking into each other’s eyes’ and finding
responses that are satisfying for themselves, for a return to safety in the community
and for public order?
•
What, more precisely, ensures that participants are satisfied, and when and how?
How well are victims’ needs met in restorative justice practices?
•
How do victims and offenders undergoing restorative processes experience different
types of ‘restoration’ and ‘justice’?
•
How do participants perceive ‘proportionality’?
•
How is legal assistance provided in restorative justice processes?
•
How do public prosecutors and judges take restorative justice outcomes into consideration when deciding a case?
•
What do we understand ‘societal support’ or ‘community engagement’ to be in relation to restorative justice and how can this be enhanced in different cultural, political
and economic contexts?
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•
What is the role of the (social) media in creating public awareness of restorative
justice?
•
How can truth commissions organise restorative justice practices between victims
and perpetrators as part of their commission work?
•
What are the perceptions and experiences of parties who have participated in restorative justice sessions relating to atrocities such as genocide, torture, disappearance
and terrorism?
•
Can restorative community programmes be used as a first step towards peace building in post-war societies?
Practical experience, continuous monitoring, case studies and focused empirical research
should shed light on some of these questions, and also on others regarding the feasibility,
reach and impact of restorative practices.
However, clear and in-depth theoretical thinking is much needed to guide practical concerns and questions. There is a lack of clarity about the (stated and real) goals
of restorative justice practices. There is a lack of understanding about the psychological, relational and social dynamics, factors and mechanisms that supposedly underpin
the processes. In 2003, this led McCold to the conclusion that ‘research on restorative
justice practice is a mile wide, but only an inch deep’ (McCold, 2003: 106). This state
of affairs is changing, however. Originally, Braithwaite’s Reintegrative Shaming theory
(1989) was the predominant explanatory framework in the restorative justice literature.
During the last decade, this theory has been challenged or at least complemented by
other approaches, such as Procedural Justice theory (Tyler, 2006), Social Support theory
(Cullen, 1994), the Good Lives Model (Ward & Maruna, 2007), Cognitive Behavioural
Therapy approaches (Strang et al., 2006) and the Interaction Rituals theory (Collins,
2004). Currently, research on which moral emotions and human interactions make the
difference in restorative justice encounters is in full swing. This is crucial, as it will provide more focused hypotheses on why and how restorative practice can work, for what
kind of issues and under what conditions. These hypotheses are indispensable for orienting and focusing empirical research, as well as all efforts aimed at improving restorative
justice practice.
Inevitably, this theoretical development will entail a refinement in the conceptualisation of restorative processes. Many empirical approaches indeed investigate ‘restorative
justice processes’, and do not differentiate sufficiently among the various models. Clearly
shuttle mediation after an act of vandalism, for example, would not be the same as a
family group conference following a street robbery. The lack of differentiation and
refinement may be one of the most important reasons why research on the impact of
restorative processes does not deliver straightforward results. Not all restorative practices are the same and their scope and impact may be quite different (Walgrave, 2012).
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So-called Citizens Boards that are working in a restorative perspective are not the same
as victim offender mediation; mediation is different from family group conferencing in
the New Zealand style; peacemaking circles are not always sentencing circles. Facilitators
can adopt different roles and styles, objectives are dissimilar, the actors are not the same,
and even the intrinsic quality of the process may be very unequal. This variety has to be
recognised in the theory, and must be included in practical descriptions and evaluations.
It is clear that restorative justice research has to face a number of methodological
issues. These include research problems common to all types of interventions, such
as the identification of measurable programme objectives, the construction of valid
instruments, ensuring external validity, reliable assessment of outcomes, avoiding overoptimistic interpretations by committed believers, identifying undesirable side-effects,
the composition of adequate control groups and the random assignment of participants.
In addition, the evaluation of restorative justice is confronted with a number of specific
challenges. Many of these are a consequence of the priority given to voluntary deliberative processes. This option indeed raises a preliminary question regarding feasibility,
which is not relevant if sanctions are imposed (what if stakeholders refuse to participate?). It also creates difficulties in comparing the outcomes of voluntary restorative
processes with those of coercive procedures.
Another issue relates to the indication of objectives. Punishment-based or
treatment-oriented programmes locate their objectives on the offender. Restorative
justice, however, does not primarily address the offender, but the harm needing repair.
Consequently, the standard of success or failure is more challenging to define. Whose
harm should be taken into account: harm to the victim in the first instance, or also harm
to the offender and society? How should ‘restoration’ be defined and measured? What
about the wider reformative ambitions of restorative philosophy?
Due to the fact that restorative justice practices do not follow a single unique process, but are flexible, all research on such practices must include accurate descriptions of
what happens in these encounters. Amongst other things, the sequence in the expression
and the communication of moral and other emotions during meetings are crucial. Only
then will it be possible to explore which factors and dynamics are decisive in restorative processes. The methodological consequence is that qualitative research techniques,
including participant observation, are indispensable in developing restorative justice
research. This raises the issue of how qualitative and quantitative research methods relate
to and can reinforce one another.
3. Practical, organisational and institutional issues
The history of criminal law reform offers copious examples of how good theories give
way to bad practices. Restorative justice in particular has been poorly implemented
in various countries. There is overwhelming evidence that the number of cases dealt
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with by restorative justice programmes remains relatively small, compared with what is
legally and practically possible in a given jurisdiction. The potential of restorative justice
remains largely underused in a quantitative way. What practices will effectively identify
and refer suitable cases to restorative justice programmes? What are the criteria of ‘quality’ in restorative justice processes and which standards of practice have been developed
in various countries? Who are the mediators and facilitators, what are their backgrounds,
how are they trained, how do they think and act? How can the involvement of volunteers contribute to more adequate services? How are community members engaged to
participate in restorative justice practices and what role do they play? How can politics
be encouraged to support such initiatives? How can the judiciary be convinced to play its
role in the application of such programmes?
The need to develop effective implementation strategies and theories is not only
relevant at the individual or case level; the institutional level deserves to be studied in
much more detail. The organisational or institutional context in which restorative justice practices are initiated and developed is often defining for the orientation and main
characteristics of the new practice. Comparison and analysis is needed, both of different
models of policy-making at the national level, as well as of the role and the effect of legislation in restorative justice practices (Miers & Aertsen, 2012). Moreover, the presence
of supranational regulation in restorative justice developments is becoming a factor of
the utmost importance, particularly in European countries.
The ways in which restorative justice relates to ‘the system’ have been the subject
of endless debate and much writing. This relationship has mainly been studied from
legal-theoretical and legal-philosophical perspectives (Claes, Foqué & Peters, 2005; Von
Hirsch, Roberts, Bottoms, Roach & Schiff, 2003). Whereas initially the debate supplied
evidence of paradigmatic and oppositional thinking, elements of connection and interface between the two approaches came to the fore towards the end of the 1990s (Daly,
2000; Dignan, 2002; Walgrave, 2007). How this relationship is observable in practice is
less well investigated and, curiously enough, while the relationship between restorative
justice and the criminal justice system has enjoyed a great deal of attention, its relationship to and position within the community has been virtually neglected in empirical
and theoretical studies, which may be related to the fact that ‘community’ remains a
challenging concept to define (Vanfraechem, 2007).
4. The journal
The brief overview above merely serves to illustrate the richness of the field of restorative
justice, with its innovative promises, creative practices, inspirational ideas, important
theoretical work, and thoughtful research. It is, however, also a field replete with difficulties, problems, uncertainties, concerns, challenges and matters of debate. Restorative
justice can be considered a large and attractive field of exploration for practitioners,
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academics, visionary and forward-looking policy-makers, among others, in terms of
exchanging, analysing and training to do ‘justice’ by means of active and constructive
participation in all of the above. The worldwide stream of innovating practices, legal
reforms, debates and research provides a wealth of materials for an outstanding, captivating, ground-breaking journal that aims to make a difference in research, in practice,
in justice developments, and in social evolution as a whole.
Restorative Justice: An International Journal seeks to offer a space for this evolving
field and is willing to contribute actively to it. It aims to become the essential medium
for presenting theories, visions, practices and research findings on restorative justice.
It wishes to become the central forum for straightforward debate, respecting differing
opinions—in a ‘restorative justice way’, so to speak. The journal welcomes contributions
from all intellectual traditions and directions. Indeed, it must not become a naive celebration of restorative justice. It would lose its credibility and become the periodical of
a closed and self-sufficient group of believers. Evangelism (Pratt, 2006) is boring, too
monotone and would lead the restorative justice movement to a state of drowsiness.
Consequently, very critical, questioning, sceptical and well underpinned contributions
with regard to restorative justice are welcome. This is the only possible way to keep
restorative justice, as a practice, as a field of research and as a subject of policy, alive and
continuously improving.
As we have learnt during the preparatory work for this academic journal and our
experience of working on others, launching a journal requires a number of aspects and
conditions to come together. In order to bring our ambitions to fruition, we consider
several conditions to be essential.
First there is the quality of contributions. While it is fair to start by asking, ‘what is
a good article?’, ideas of quality do not differ so greatly. Formal criteria such as logical
structure and good language, revealing an awareness of developments in the broader
field, transcending the local experience and referring to the wider context, and originality in thinking, practice and research design, are all indications of quality in an article.
We are dependent on our reviewers to form judgements on all of these criteria. The list
of possible reviewers is composed by a number of internationally recognised experts in
a number of fields relevant to restorative justice. Their engagement and wise judgement
will be very important to safeguard the quality of the journal.
Second, we have worked at compiling a well-balanced Editorial Board and International Advisory Board. Our objective has been on the one hand to involve highly
experienced and well-known scholars and practitioners from the field of restorative justice, and on the other hand to give a voice to more junior and promising colleagues,
while trying to keep a gender and geographical balance. The response from those we
initially contacted was overwhelming and unanimous. We have found very enthusiastic
colleagues in diverse areas of expertise and with varied professional and personal backgrounds ready to support us.
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We have also sought a publisher who best fits our endeavour, and we truly believe
we have found that with Hart Publishing. Indeed, we were hoping for a publisher who
would grant us total editorial freedom whilst being supportive, experienced and openminded enough to allow new ideas and points of views to be developed and presented in
a wider international context.
Furthermore, we have set up a structural cooperation with existing international
organisations in the domain of restorative justice and, more broadly, in the fields of
criminology and victimology. These affiliations will help us to secure continuously new
input from practitioners and researchers on the one hand, and to obtain responses and
feedback on the ideas and findings presented in the journal, on the other hand.
Lastly, there is the Editorial Team at the Leuven Institute of Criminology (LINC).
The University of Leuven is globally one of the most active centres in restorative justice.
Leuven scholars have written several internationally acclaimed publications (for example, from our team alone: Parmentier, 2001; Walgrave, 2002; Aertsen, Daems & Robert,
2006; Walgrave, 2008; Vanfraechem, Aertsen & Willemsens, 2010; Miers & Aertsen, 2012;
Zinsstag & Vanfraechem, 2012). Leuven was the home of the International Network for
Restorative Justice and currently hosts the European Forum for Restorative Justice. Over
the years, both associations have organised and led a number of successful meetings,
projects and conferences. Within LINC, both theoretical and empirical research has
been carried out on a variety of aspects of restorative justice and related fields such as
youth criminology, victimology and transitional justice. Specific courses on restorative
justice exist as part of the law and criminology curriculum and a research line in LINC
is dedicated to restorative justice. Some of its staff have also been influential in making
the Belgian criminal and juvenile justice systems among the most restoration-oriented
systems in the world. Moreover, close cooperation with a number of European institutions in the field of restorative justice has been fostered over the last fifteen years. It is,
therefore, also particularly fitting that the initiation of the journal is made possible in
part thanks to financial support from the ‘Tony Peters Fund’. Tony Peters was a highly
respected pioneer in restorative justice research and academia with a strong link to practice and policy developments both in Belgium and internationally (Aertsen & Peters,
1998; Fattah & Peters, 1998; Robert & Peters, 2002). He passed away in Spring 2012 after
a long illness.
Restorative Justice: An International Journal aims to be an academic journal, adopting
the highest standards of academic publishing, including a system of double blind peer
review. Does this imply that practitioners’ contributions are excluded? That is certainly
not the case. As might have been understood from the above, we believe that practice is
absolutely crucial. Without the creativity of practitioners, restorative justice would not
exist, since some of the most important innovations in the field emerge from day-to-day
practice. However, there often seem to be obstacles to writing from the practice point of
view. We would therefore like to state loud and clear, at the launch of this journal, that we
strongly encourage submissions from practitioners and policy-makers.
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Another issue which we would like to address at this stage, concerning contributions
to the journal, is language. We, as continental Europeans, are fully aware of the immense
risk that concepts, theories and practices of restorative justice, as is the case in other
domains, become more and more determined by one cultural or linguistic community.
Such evolution may ignore the richness of traditions, insights, innovative practices and
research findings in other parts of the world. Certainly in restorative justice these diverse
influences are important. However, the reverse also applies; that is, through an international language it is easier to transfer the diversity and multitude of research to the
larger community and spark off dialogue and inspiration. We therefore believe it is the
right choice to publish in English. It is a fact nevertheless that when it comes to writing,
native English speakers are hugely advantaged. We have tried to address this issue, and
because we sincerely wish to encourage contributions by non-native English speakers,
Hart Publishing has agreed to provide us with a special language service and all accepted
contributions will be checked and reworked, therefore avoiding rejection on the sole
ground of an article being written in less than perfect English.
A last word must be said about the content and structure of the new journal. We
welcome contributions in the broad field of restorative justice, written by researchers,
academics, practitioners and policy-makers, from all parts of the world. We expect the
contributions to be scientifically sound and well underpinned. Each issue (three per
year) will, following an editorial, contain four to five articles, followed by reviews of
books on topics related to restorative justice. Short essays, informative contributions
on important research findings or innovative practices, debates on specific topics and
relevant announcements might also be included on an ad hoc basis.
5. Content of the first issue
To launch the journal, we have endeavoured to make this first issue a special one. It does
not contain the four or five articles that you can expect from future issues. Instead we
have written a longer editorial, to set the scene. We then asked Norwegian criminologist
and innovative thinker Nils Christie to write a short essay on restorative justice terminology. He has delivered a thought-provoking article entitled ‘Words on words’, which
is commented upon by ten international scholars and personalities. They come from
many different parts of the world and have kindly agreed to reflect on Christie’s ideas
in a number of unique ways and from different perspectives. Following this, we have
chosen to include two long articles which reflect the scope and variety, in content as
well as methodology, for which the journal stands. The first article is written by Valerie
Braithwaite, Hsiao-fen Huang and Monika Reinhart and is a comparative study based
on a survey conducted in Australia and Japan to examine in a quantitative manner ‘love
thy neighbour’ values, needs and willingness to participate in restorative justice. The
second article is by Ann Skelton, who analyses the restorative justice jurisprudence of the
South African Constitutional Court. Finally we include three reviews of recent books on
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restorative justice-related topics by reviewers from the Netherlands, the United Kingdom
and the United States of America. Herewith, Restorative Justice: An International Journal is launched. We do understand
that it is both a journey and an adventure, as is restorative justice itself. But the journal is
also your journey and your adventure. Please do contact us with your ideas and suggestions for RJIJ. Do experience it, do contribute to it and do read it!
References
Aertsen, I., Arsovska, J., Rohne, H., Valiñas, M. & Vanspauwen, K. (eds.) (2008). Restoring justice
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Aertsen, I., Daems, T. & Robert, L. (eds.) (2006). Institutionalizing restorative justice. Cullompton:
Willan Publishing.
Aertsen, I. & Peters, T. (1998). Mediation and restorative justice in Belgium. European Journal on
Criminal Policy and Research, 6(4), 507–525.
Bazemore, G. & Schiff, M. (eds.) (2005). Juvenile justice reform and restorative justice. Cullompton:
Willan Publishing.
Braithwaite, J. (1989). Crime, shame and reintegration. Cambridge: Cambridge University Press.
Braithwaite, J. (2000). The new regulatory state and the transformation of criminology. British
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Braithwaite, J. (2005). Between proportionality and impunity: confrontation => truth => prevention. Criminology, 43(2), 283–306.
Braithwaite, J., Charlesworth, H., Reddy, P. & Dunn, L. (eds.) (2010). Reconciliation and architectures of commitment: sequencing peace in Bougainville. Canberra: ANU ePress.
Christie, N. (2001). Answers to atrocities: restorative justice in extreme situations. In E. Fattah and
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Antwerp: Intersentia.
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in European countries. Frankfurt am Main: Verlag für Polizeiwissenschaft.
Parmentier, S. (2001). The South African Truth and Reconciliation Commission: towards restorative justice in the field of human rights. In E. Fattah and S. Parmentier (eds.), Victim policies
and criminal justice on the road to restorative justice: essays in honour of Tony Peters (pp. 401–
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Parmentier S., Vanspauwen, K. & Weitekamp, E. (2008). Dealing with the legacy of mass violence:
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criminology: towards a criminology of international crimes (pp. 335–356). Antwerp: Intersentia.
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restorative options through the eyes of the population. In A. Crawford (ed.), International
and comparative criminal justice and urban governance: convergence and divergence in global,
national and local settings (pp. 140–167). Cambridge: Cambridge University Press.
Pavlich, G. (2005). Governing paradoxes of restorative justice. London: GlassHouse Press.
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In I. Aertsen, T. Daems and L. Robert (eds.), Institutionalizing restorative justice (pp. 44–67).
Cullompton: Willan Publishing.
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Victim evaluations of face-to-face restorative justice conferences: a quasi-experimental analysis. Journal of Social Issues, 62(2), 281–306.
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a multi-site study in the United States. In E. Van der Spuy, S. Parmentier and A. Dissel (eds.),
Restorative justice: politics, policies and prospects (pp. 22–39). Cape Town: Juta Publishers.
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restorative justice theory (pp. 73–91). Frankfurt am Main: Verlag für Polizeiwissenschaft.
Vanfraechem, I., Aertsen, I. & Willemsens, J. (eds.) (2010). Restorative justice realities: empirical
research in a European context. The Hague: Eleven International Publishing.
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Ivo Aertsen, Stephan Parmentier, Inge Vanfraechem, Lode Walgrave and Estelle Zinsstag
Von Hirsch, A. (1993). Censure and sanctions. Oxford: Clarendon Press.
Von Hirsch, A., Roberts, J., Bottoms, A., Roach, K. & Schiff, M. (eds.) (2003). Restorative justice and
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Walgrave, L. (ed.) (2002). Restorative justice and the law: socio-ethical and juridical foundations for
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Walgrave, L. (2007). Integrating criminal justice and restorative justice. In G. Johnstone and D.
Van Ness (eds.), Handbook of restorative justice (pp. 559–579). Cullompton: Willan Publishing.
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Vanfraechem (eds.), Conferencing and restorative justice: international practices and perspectives
(pp. 33–45). Oxford: Oxford University Press.
Ward, T. & Maruna, S. (2007). Rehabilitation. Oxford: Routledge.
Zehr, H. (2002). The little book of restorative justice. Intercourse: Good Books.
Zinsstag, E., Teunkens, M. & Pali, B. (2011). Conferencing: a way forward for restorative justice in
Europe? Report to the European Commission. Leuven: European Forum for Restorative Justice.
Zinsstag, E. & Vanfraechem, I. (eds.) (2012). Conferencing and restorative justice: international practices and perspectives. Oxford: Oxford University Press.
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SYMPOSIUM
DOI: 10.5235.20504721.1.1.15
Words on words
Nils Christie
Professor of Criminology, University of Oslo (Norway), [email protected]
Conflicts are important matters for any society. They can create chaos, destruction,
misery—at both the individual and the social level. But they can also bring us forward—
both at the individual level and as social systems. We can develop, understand more
about others and ourselves, and come out of the conflict with increased insights and
improved social arrangements. Conflicts can be seen as forces moving individual and/
or social systems towards improvement—if tamed and used in a good way. I am in this
perspective happy to observe the nearly explosive growth within the field of alternative
conflict solutions.
But I have some problems: What to call the babies—the core activities for alternative
handling of conflicts; the organisations created for that purpose, the role-players and
their activities?
And names are important.
Names influence action.
Names create expectations.
Names can function as a cover up—hide some realities in what happens.
Restorative justice has been the general designator within the field. It appears in UN
documents, in Council of Europe documents, and in articles and books. And the designation sneaks into other languages as well—un-translated.
To me, it sounds like a bad choice.
The worst part of it is ‘justice’. It leads us straight into the institution of Law. Lady
Justice, blindfolded with sword in hand. If anything, the activities we are interested in
have no need for a sword. And no need for blindfolding anybody. Blindfolding is a device
for preventing undue interference and thereby hindering abuse of the sword. Organisations for alternative ways of handling conflicts are not there to create pain, but to create
understanding. Penal law emphasises justice in terms of treating each case with equal
gravity. But few acts are equal. And no human beings are completely equal to anybody
else. Lawyers attempt to handle this unpleasant fact of life by looking away from most
elements in what they are to compare. I often provoke law students by saying that they
go through years of systematic training in what not to mention in court. In the end they
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are left with a few elements, and can thereby create an illusion of comparing equal cases
and finding solutions claimed to be ‘just’.
The alternative way to handle conflicts is based on the opposite principle. Here is no
dominance of ready-made decisions. What is relevant is what the parties find relevant.
The dominant goal is to bring the parties so close that they can see each other, and
increase to the utmost the amount of information that can create a basis for handling
the ongoing conflict.
***
The other part of the concept restorative justice is less hopeless. But problematic.
‘Restorative’? Bringing things back to old forms. The stolen picture by Edvard
Munch—‘The Scream’—is back in the museum, slightly damaged, but now restored.
And the thieves have been captured and punished. Conditions are restored, but not in a
meaning relevant for alternative handling of conflicts.
When we use the term ‘restoration’ in relation to conflicts, it is probably most often
some form of restoration of ‘normative trust’ we have in mind. A person might have
been made to see that his acts were out of line. Maybe he has been able to explain why he
did it. Maybe trust has been re-established, restored. Trust in the normative system, yes.
But not necessarily restoration of the social system. She moved out. He will never be the
same in her eyes. It is all over.
This leads to another favourite term relating to these activities: mediation. This term
is in many situations a suitable one. On the streets of Oslo, gangs of youths might be
made to see that it is more honourable to prove they are the best at football or street
dance than best at using knifes. Or as has recently happened in Albania: some cases of
blood vengeance have been brought to an end through mediation; males can leave their
hiding places and join the females working in the fields, neighbours can meet again.
What has happened in Rwanda with mediation in the village courts is almost beyond
comprehension.
It was in Oñati at the International Institute for the Sociology of Law that I first presented these thoughts on mediation. Oñati was a perfect setting. Oñati is a town in Spain.
And yet not in Spain. It is a town in the land of Basques. This is a land with a population
dating back long before the Spaniards arrived, with a language so old that the roots are
unknown, and with a population engaged in endless struggles to preserve language and
identity—a struggle carried out using all available means. All means, including bombs.
Many Basques are in Spanish prisons. While we were there in 2009, demonstrations were
being staged to get them released.
Would it have been OK to enter this conflict with attempts to mediate? Intuitively,
coming there from more peaceful countries, we might feel that this would be right. A
large meeting might be arranged: victims of bombings, sentenced offenders, lots of emotions, they would promise not to do it again—and would be released from prison.
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With such a description, we see immediately that mediation might be a dangerous
tool. It highlights that mediation can have consequences for power and politics. Easily
seen in the Basque country. But of course also a fact in the more trivial activities in most
of our home countries.
Kjersti Ericsson pointed to this in a book as far back as 1982. Mediators might be able
to ‘solve’ conflicts at the local level, but these conflicts are often of a type that ought to
be handled at a much higher political level in society. By creating peace at ground-level,
society is spared the trouble of finding more fundamental solutions to a great number of
problems. Youth vandalism of property might be a problem approached by mediation,
but perhaps money for a youth club would be a better solution?
Or let us for a moment think alternatively about the problem of shoplifting. Kids
steal. An employee meets them in a setting for mediation, the case is settled and relations
are restored. But ought they to be restored?
There are alternatives to modern forms of shopping. I have one in my local neighbourhood. It is a shop with a counter between the customers on one side and the
salesman and all his stuff on the other side. Private security officers, police, courts, and
punishment—and mediators—are functional alternatives to the missing counters. My
local shop owner behind the desk told me the other day that he once had two knives
stolen. He has been behind his counter for 50 years. The two knives are his total loss. He
is contemplating retirement, but hesitates, fearing the loss of a meaningful life if he is not
in the middle of everything anymore.
A situation and a life like that; impossible in modernity!
But why should mediation be in favour of modernity? Maybe it would be a good
thing if the big superstores were unable to survive by being forced to protect customers against overpowering temptations by hiding their commodities behind counters. It
would present opportunities for more variation, more room for personalised relations
between seller and customer—and provide an atmosphere for mediation when conflicts
loomed.
Reconciliation is to me slightly more suitable than the terms mentioned hitherto. It
has a more resigned tone. Something bad has occurred, maybe it cannot be changed, I
have to be reconciled with it. Honest, but not optimistic. Many conflicts have to be lived
with. They will continue, forever. Parties might be helped to live with these conflicts, not
to dissolve them.
Offender is another among the dangerous terms. Offender—to use this concept is
to conclude and close the process where we ought to start. The central task in handling
a conflict is to reveal what happened, find out about the details, create understanding,
give the phenomenon meaning, maybe several meanings. The opening remark in a faceto-face meeting would be: What happened? Step by step an understanding might be
created, may be even a joint one, but that is hindered, not helped, by commencing from
the conclusion. In addition come the poisoning effects of the term, strong stigmata overshadowing other sides of the person, imprisoned in the term.
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Nils Christie
And then to the other side in the conflict: victim. Again the conclusion comes before
description and analysis. Penal law is forced to think in black and white. Guilty, not
guilty—a life in dichotomies. Alternative thinking and action are not forced into the
same limitations. That is their strength! How sad and bad to see that they nonetheless
succumb to the terminological limits inherited from penal law. Understanding has to
be built from whole stories. When these stories have been revealed, we might be able to
abolish the simplified terms ‘victim’ and ‘offender’.
But then, how to talk or write about these phenomena? My suggestion would be: Let
us go back to basics. Individuals, families, organisations or states are in conflict. Attempts
are made to handle these conflicts using methods other than those used in war or penal
law. If we stick to that, a whole multitude of alternative concepts emerges:
Fundamentally, there are parties in a conflict. There might be one that complains,
there might be another that returns other complaints (I hesitate to use the term ‘complainant’ due to its legal connotation), there might be many involved and many stories to
be told. There are informal methods in use. The Roma people (Gypsies) in Finland have
one, based on avoiding each other. Central females in the travelling groups keep track
of each other and see to it that they do not meet if they are not on friendly terms. Many
states have family councils, South Africa had their commissions for truth and reconciliation, and we, in Norway, have our ‘Konfliktråd’—councils for handling conflicts. Not
necessarily solving them, not necessarily restoring or creating justice. But let us handle
conflicts; reveal what happened, let parties gain access to other parties’ understanding
of what happened. Maybe the conflict will become bearable. Maybe the parties and the
whole community will understand more.
A less popular solution
My suggestions above might be seen as dangerous for the continuous expansion of this
way of handling conflicts. ‘Restorative justice’: it sounds beautiful. Getting matters right,
and in a just way. Offenders learn a lesson and victims obtain their rights. It sounds
acceptable, no matter where one is positioned on the political spectrum. So close to
punishment but without some of the bad side effects. No wonder the system receives so
warm a welcome.
And these alternative ways of handling conflicts have had a humanising effect. Some
people, particularly young people, get a second chance by meeting here rather than in a
penal court. And the expansion of the prison systems may have reduced slightly. Using
terminology closer to realities might hamper this good development.
But there are dangers in words. Those words I have criticised are very close to those
used in penal law. They might thereby tempt the major operators in the system to think
in that framework—and to act as they think. Somebody is guilty, there are victims to
satisfy, and there is justice to care for. Some suffering ought to be imposed on the guilty
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person. Anthony Duff (2001) wants to formalise this by adding punishments—evils
intended as evils—to the decisions in such cases. But this activity is what we have penal
courts for. What is lost in such a proposal is the basic idea that the outcome of a meeting
between conflicting parties might end in satisfaction for both of them. We understand
each other, we might even become friends after the meeting!
Boards for handling conflicts in civil ways are central in the activities behind the
concepts discussed above. Why not simply say: We work with conflicts and in organisations which handle conflicts. Less heroic terminology, but also terminology less open to
abuse and misleading expectations.
References
Duff, A. (2001). Punishment, communication, and community. New York: Oxford University Press.
Ericsson, K. (1982). Alternativ konfliktløsning. Oslo: Universitetsforlaget.
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John Braithwaite
Ten Responses to ‘Words on words’
1. Western words
John Braithwaite
Distinguished Professor in Criminology and Founder of RegNet (the Regulatory Institutions
Network) at the Australian National University (Australia), [email protected]
My reaction to the thoughtful reflections of Nils Christie is mixed. The inspiring iconoclast that is Nils challenges foundations of our theories. I am less ambivalent about the
concept of crime than he. Indeed, for me the concepts crime and justice are great inventions of human vision.
Consider the practical use of the crime concept for lifting the western world from its
current vortex of unemployment and fiscal imbalance. A useful step toward fiscal balance in some parts of Europe is for tax cheating to be viewed as a crime, seen as shameful.
In the United States there is a limited consensus that tax rates must be increased to
extricate the country from its debt; the world economy continues to stumble because
Republicans refuse to vote for sufficiently steep tax hikes. Increasing tax rates for the
wealthy is certainly desirable. Yet the US, like the UK, may not need to further increase
taxes to balance its books as much as it needs to persuade its ruling class that it is shameful to cheat on taxes, to use tax havens and other tax shelters that flout the law’s intent,
that it is right that its wealthiest individuals and corporations pay as much tax as its
middle class. The path to that objective is not to put most of the American ruling class
in prison as tax cheats. Nor is it endless litigation. It is restorative justice conferences that
engage in a dialogue to persuade wealthy American corporations and individuals that
there is a moral imperative to exit from tax havens, and it is right to settle by paying tax
penalties (Braithwaite, 2005; 2012). This admittedly must be done under the shadow of
confiscation of assets, suits in which internal whistle-blowers win a percentage of the tax
penalty, and imprisonment enforced by the criminal law.
Of course it would be a huge fiscal help if the US and UK also desisted from starting
wars (and pressuring other indebted states to join them). One thing that would assist
with that objective would be to look back upon the Iraq war as a crime of aggression
under international law. President George W. Bush and Prime Minister Tony Blair both
engaged in criminal conduct when they wilfully misled their people with the claim that
this was a war to protect them against Saddam Hussein’s weapons of mass destruction.
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Words on words
This is not to argue that Bush and Blair should hang in the same way as Hussein. It is just
to argue that there is a noble human purpose in seeing their crimes as shameful and as
crimes. Nils Christie once asked of hanging those convicted at Nuremburg: how could
one broken neck balance the slaughter of millions? Likewise, how could Tony Blair’s broken neck, or Saddam Hussein’s, balance the suffering of the slaughtered children of Iraq?
Theoretically, what delivers practical value to the crime concept is not that it tracks
us to punishment. On the contrary, we might seek to uncouple crime and justice from
any necessary connection to punishment. The concept is of most use when crime is
constituted as distinctively serious and shameful wrongdoing. Compare rape, which is a
crime, with the late return of a library book, which is routinely punished by a fine (but
is not a crime). We do not need criminalisation or restorative justice to make libraries
work. Fines work well enough. But times and places in human history where rape is not
constituted as shameful by the criminal law are space-time contexts that endure high
rates of rape (Ahmed, Harris, Braithwaite & Braithwaite, 2001: 28–30; Braithwaite, 1995;
Pinker, 2011: 196–200). Times and places that regard drunk driving as not really criminal are contexts with high rates of road slaughter.
We need a strategy that retains ritual seriousness for the crime concept: one that
regularly renews the shamefulness of crime through ceremonies that are not stigmatising, and that advances the struggle to uncouple crime and justice from hard treatment.
Restorative justice can be that strategy. It is now supported by a vibrant social movement
politics organised around that label. So we must chide its defects while being careful to
defend those core accomplishments. While there are theoretical differences between us, I
would say the chiding by Nils Christie in ‘Words on words’ honours that obligation in a
way that is true to the Christie genius for critical reflection.
Properly conceived, justice is a holistic concept that includes procedural justice, distributive justice, social justice, and restorative justice, alongside last resort to punitive
justice. That said, all the Christie arguments in favour of reconciliation as an alternative
seem good arguments. We might also note here the greater embrace in United Nations
discourse of ‘reconciliation’ than of ‘restorative justice’, though both are increasingly well
received. On the other hand, in international law discourse, reconciliation tends to be
separated from truth and justice, where justice is narrowly thought to mean punishing
people through criminal trials. Consistent with the Christie concerns, retributivists are
winning against restorativists in the battle for the soul of ‘transitional justice’.
Hence, I find attractive the alternative move of Dan Philpott and Jennifer Llewellyn
(forthcoming) that sees reconciliation as historically part of what justice means, part of
justice as shalom in the Christian and Judaic traditions, of justice as salam in Islam, of
justice as ubuntu in Zulu, Xhosa traditions and increasingly in a pan-African tradition
(see also Philpott, 2012). That leads to seeing all the concepts in the Christie paper—
offender, mediation, justice, restoration, reconciliation—as from the North and West.
Most of us live in the South and East. So if we are from South Africa it will be more useful
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John Braithwaite
to think in terms of ubuntu than reconciliation; if from Rwanda, better to think in terms
of gacacca than restorative justice. Yet as we do that, there will be great reward from reading the thoughts of Nils Christie in a journal called Restorative Justice. And there will be
riches for that journal to publish pieces on ubuntu and gacacca that do not mention the
term ‘restorative justice’.
References
Ahmed, E., Harris, N., Braithwaite, J. & Braithwaite, V. (2001). Shame management through reintegration. Cambridge: Cambridge University Press.
Braithwaite, J. (1995). Inequality and republican criminology. In J. Hagan and R. Peterson (eds.),
Crime and inequality (pp. 277–305). Palo Alto: Stanford University Press.
Braithwaite, J. (2005). Markets in vice, markets in virtue. Sydney: Federation Press.
Braithwaite, J. (2012). Flipping markets to virtue with Qui Tam and restorative justice. Accounting organizations and society, www.sciencedirect.com/science/article/pii/S0361368212000785
(accessed April 2013).
Philpott, D. (2012). Just and unjust peace: an ethic of political reconciliation. New York: Oxford
University Press.
Philpott, D. & Llewellyn, J. (eds.) (forthcoming). Restorative justice, reconciliation and peacebuilding.
Pinker, S. (2011). The better angels of our nature: why violence has declined. New York: Penguin.
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2. More words on words
Kathleen Daly
Professor of Criminology and Criminal Justice, Griffith University (Australia), [email protected]
griffith.edu.au.
Words have multiple definitions and meanings. Further complexities arise when words
and ideas are translated from one language and culture to another. Christie wrote ‘Words
on words’ in English, but his homeland is Norway. This matters for the words he chooses
and for his thoughts on restorative justice, as they are rendered in English. As one of
the founders of abolitionism in European criminology, it is not surprising that the term
‘conflicts’ continues to be central to his analysis. Not crimes, not wrongs, not harms, but
conflicts. When Christie (1977) put forward the idea that conflicts have value, it was a
wonderful insight, and it remains so. To imagine that the content of conflicts could be
a type of property, worth mobilising for the betterment of society—that was original.
Idealistic too, but it invited reflection on the ability of all society’s members (not just ‘the
professionals’) to engage in a wide-ranging discussion about what is right and wrong, or
what should be done when conflict emerges.1
In ‘Words on words’, Christie suggests that conflicts can be a basis for improving
society and individuals, if they are ‘tamed and used in a good way’. He says we need a
better term to characterise alternative ways of ‘handling conflicts’, and restorative justice
is not the right term. No, ‘it sounds like a bad choice’. He proposes ‘less heroic’ terminology: ‘handling conflicts in civil ways’. This is an ambiguous conclusion: is he suggesting
that we dispense with penal law and use civil law instead? Or is he suggesting that we act
with greater civility when handling conflicts? Or a combination of the two, a variant of
the ‘civilisation’ thesis (Bottoms, 2003)?
My response to Christie’s words is ‘more words’, with these points. First, ‘conflicts’,
as a term, does not sufficiently encompass all that occurs in human society when individuals, groups and organisational entities seek to hurt, degrade and destroy others. We
should retain the idea of wrongs and, with it, penal law as one mechanism of response,
although not the sole mechanism. Second, I agree with Christie that the term ‘restorative
justice’ should be replaced, but not for the reasons he gives. I propose the term ‘innovative justice’, which includes a variety of justice mechanisms—administrative, civil, penal,
and those in civil society—to address wrongs. Third, I agree that reconciliation between
parties ‘in conflict’ or having been wronged should not be expected; this and related
1
Christie’s (1977) ideal neighbourhood court is less remarked upon, but it was (and is) a creative way to
address wrongs. I consider it in the punishment section.
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ideas, such as forgiveness and apology, are hoped-for outcomes of justice processes by
some advocates, but they are better seen as gifts, unexpected and without anticipation
of reciprocity. Fourth, ‘offender’ and ‘victim’ are problematic terms, but I do not know
how they can be easily replaced. The problem, in part, is the limits of (the English) language; and in part, finding one word to convey a temporally specific status of a person or
organisational entity. Fifth, punishment has many meanings, and it is a distasteful term
to many; but it is an evolving concept and cannot be willed away.
Conflicts and wrongs
Conflicts encompass a range of structural social problems, which affect individuals and
groups. Thus, war is a conflict; and during war, groups and individuals hurt and kill
others. Societal social and economic inequalities create conflicts among individuals
and between individuals and the state. The word is serviceable, but only to a point. We
also need to ask: What are the acts of ‘chaos, destruction, misery’? Who is culpable, and
who is responsible? Perhaps Christie would say that responsibility rests with society, the
broad set of social arrangements that spawns conflict. Then, we are left with the acts
themselves; and here Christie suggests that we should not presume an offender (or victim) at the outset; rather, we should be open minded by asking ‘what happened’, and we
should seek to ‘create understanding … from whole stories’.
I am analysing materials on youths who have been charged with sex offences against
their siblings, and I am reading the research and clinical literatures on cases like these.
I find that the youths, even those who admit to offending, do not or cannot fully disclose ‘what happened’ to their parent(s) or legal authorities, although they may do so
to counsellors after many months. ‘What happened’ in these cases is not a one-off incident, but a pattern of ongoing sexual abuse, lasting on average over 40 weeks.2 There are
many barriers to disclosing the abuse when it is occurring, which, unless it is discovered
by a parent or other adult, falls on a young victim.3 In Australia in recent years, there
has been a ‘shift in thinking … from a punitive response to a much more therapeutic
response’ (Stathopoulos, 2012: 1), that is, from removing the abusive sibling from the
family toward ‘holistic responses’ that deal with the ‘specific needs’ of abused and abusive siblings and family members (p. 16). What do we call this behaviour? ‘Conflicts’ is
not apt: the child is not ‘in conflict’ with her older brother.4 If we are to recognise and
My analysis is based on all youth sex offence cases, including sibling sexual abuse, reported to the police in
South Australia over a 6.5-year period; this average (mean) is of the 64% of cases in which the abuse was
ongoing. Clinical samples of adult survivors typically show a longer duration (see Daly & Wade, 2012).
3 The average age of the abused sibling was 8; and the abusive sibling, 14.
4 From Daly & Wade (2012: Appendix II): in the set of charged cases, most abused siblings (73%) were
female; and nearly all abusive siblings (98%) were male.
2
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validate an abused sibling’s experiences, we need another word: my preferred term is
‘wrongs’, or perhaps ‘harms’.5
Other related examples are the physical and sexual victimisation of children or youth
by adults while in state or religious care; and clergy abuse of children or youth inside and
outside institutional walls. The problem with the term ‘conflict’ is that it evokes (in my
mind) a sense of mutual culpability or of diffused responsibility. This is relevant in some
circumstances, but not in others. Penal law deals with wrongs, but many wrongs are not
necessarily handled by penal law. Other mechanisms such as civil suits, administrative
tribunals, redress packages, truth commissions, state compensation or financial assistance, ex-gratia payments—all of these and other types of mechanisms are and have been
used to address wrongs.
Conventional and innovative justice
Christie equates ‘justice’ with law, and specifically, penal law. He has a particular meaning
of justice in mind, as an equality of response to ‘like crimes’. I agree with his view that a
just response—defined solely as treating each case with ‘equal gravity’—does not have
real people and real cases in mind. However, there are other types of justice responses
(civil and administrative), not just penal responses; in addition, ‘alternative’ mechanisms
could work alongside criminal, civil and administrative law; and there are mechanisms
in civil society, ‘outside’ law.
In recognition of this diversity, I propose we view justice mechanisms as residing on a
continuum from conventional to innovative. Conventional and innovative are overlapping categories; they are not mutually exclusive and can be combined in hybrid forms.6
Conventional responses are concerned with improvements to evidence gathering, prosecution and trial, and support for victims in legal contexts. They may be part of a criminal
(or civil) justice system or work alongside it. Most assume reliance on formal legality and
on prosecution, trial and sentencing/judgment. Other conventional responses include
victim impact statements, specialist courts, civil litigation, state-based compensation or
financial assistance, victim advocates, and victim lawyers. Innovative responses may work
alongside or be integrated with criminal justice, be part of administrative procedures, or
operate in civil society. They include mediated meetings or conferences between victims
and offenders; informal justice mechanisms; truth-telling or truth-seeking mechanisms
such as truth commissions; reparations packages comprising both material elements
(compensation or other forms of assistance) and symbolic elements (apologies, days of
Duff (2003) distinguishes between wrongs (criminal law) and harms (civil law); but responses to wrongs
can take varied forms and should not be limited to criminal law responses.
6 These arguments are developed in Daly (2011; 2014), where I review and consider innovative justice
mechanisms from a victim’s perspective, largely with a common law referent. With respect to ‘large-scale
state-based conflict’, Aertsen (2008: 413, 434) suggests that differing types of justice mechanisms—
‘informal, formal, and in-between’—need to be ‘combined in a flexible way’. Researchers’ analyses of justice
in domestic and transitional justice contexts are now acknowledging the strengths of hybrid mechanisms.
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remembrance or memorials); people’s tribunals; documentary and street theatre; and
other types of art and activist projects in civil society.7
There are advantages to conceptualising justice this way. First, when we view conventional and innovative responses as neither fixed nor oppositional, we can recognise
their dynamic quality, capacity for change, and interdependence. Second, innovative
responses are a broad set of justice mechanisms of which restorative justice is just one type.
I am proposing that ‘innovative justice’ be used as an umbrella concept, which contains
a variety of justice mechanisms8 that can provide more openings for participation and
voice, and for victim validation and vindication, and offender accountability.
The ‘restorative’ element in restorative justice has problems, as Christie notes. This
occurs when people get stuck in a too-literal interpretation of the words restorative or
restoration. A major proponent has argued that ‘restorative justice [is] about restoring
victims, restoring offenders, and restoring communities’ (Braithwaite, 1989: 1), but I
believe that restorative justice is better viewed as a nominal concept that stands for a set
of activities (typically associated with face-to-face meetings between admitted offenders, victims, and relevant others, but including other practices), rather than as literally
and narrowly being about ‘restoring’. This conceptual shift is important in debating
the appropriateness of restorative justice in cases of gendered violence (Curtis-Fawley
& Daly, 2005). As Christie observes: ‘She moved out … It is all over’. There is nothing
in the relationship to restore. The problem with restoration, and its companion term,
reparation, runs far deeper and is more significant than this. These terms are defined differently, depending on a writer’s disciplinary frame of reference, and whether the focus
is on domestic or international or transitional justice (Daly & Proietti-Scifoni, 2011).
Although we are familiar with the problems of defining restorative justice, the situation is worse for reparation and restoration, especially when these terms are applied to
domestic justice contexts.
Recognition and understanding
If we imagine two protagonists (along with their friends, kin, or others), who are brought
‘so close that they can see each other’, as Christie says, we may hope to see a mutual
recognition and understanding of the other. This is the limit of what we should hope
for. Even then—and depending on the context in which meetings occur—we should
not expect to see recognition and understanding most of the time.9 To expect more
Some of these mechanisms feature more in transitional justice contexts than in domestic contexts, but
adaptation across contexts is possible.
8 I am interested to identify and understand justice mechanisms, not to imagine a justice system or type of
justice (e.g., transformative justice).
9 This depends on the socio-legal context—that is, how victims are recruited or volunteer to participate in
justice activities. When there is a high degree of victim choice (as in adult pre-sentence conference schemes
or prison meetings), the situation is completely different from circumstances where victims have little or
no choice because recruitment is offender-centred (as in most youth diversionary conference schemes).
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than this—reconciliation, forgiveness, a sincere apology—is to expect too much. Wonderful, if it happens, but do not expect it. On all these matters, I concur with Christie.
Realities—the real stories of restorative justice—are some distance from advocates’ rosy
pictures (Daly, 2006).
Offenders and victims
We know that many offenders have been victimised, and that victims have offended;
further, for some offences, it may be difficult to discern who is the ‘offender’ and who,
the ‘victim’. There should be no fixed status of ‘offender’ and ‘victim’ over time, although
these terms do seem to stick.10 Worse, some offenders become identified for life by their
wrongs done to others, as in ‘murderer’, ‘sex offender’, and ‘thief ’—other examples of
being ‘imprisoned in the term’, as Christie says. This can be overcome if we preface all
of our commentary with the disclaimer that the nouns ‘offender’ and ‘victim’ stand for
a much longer string of words, such as ‘a person, group, or organisational entity who
is alleged to have harmed or wronged another’, or ‘a person (etc.) who has admitted to
harming or wronging another’; and ‘a person who is alleged to have been harmed or
wronged’, etc. We cannot keep repeating this string over and over again; we need one
word to represent the many words. That is why we require ‘simplified terms’.11
Christie makes several points about the words ‘offender’ and ‘victim’. As regards
‘offender’, he suggests that we need to be open-minded at the start of a ‘conflict’: we
cannot assume that a victim was blameless, or that an offender is fully culpable. He is
also concerned about ‘strong stigmata overshadowing other sides of the person’. Taking
his first concern, we rely on the police to determine ‘what happened’ and I suspect that
few members of complex societies have the time or inclination to investigate further.12
Christie does not give us the name for the person or organisational entity who, following an investigation of ‘what happened’, admits to hurting another, without defence or
excuse. At that point, we may agree that the person is an offender: someone who has
offended against another.13 Regarding the second concern, Christie is concerned with
the labelling effects of the term ‘offender’. That is addressed by Braithwaite’s (1989) conIn the gendered violence and the transitional justice literatures, the term ‘survivor’ is used instead of (or
alongside) ‘victim’ to designate a change in a person’s victimisation status over time, and as a term of
empowerment.
11 I am open minded about identifying new terms, but Christie’s person who ‘complains’ and the other
who ‘returns other complaints’ would not be my first choice! Offending and victimisation are socially
constructed; they reflect actions, reactions, and social processes of categorisation. A gerund (verbal noun)
may be better able to create this sense of dynamism than a noun.
12 There are exceptions: journalists are important investigators, and many people handle wrongs themselves
or report them to others (such as religious actors, counsellors or support workers), without calling the
police.
13 Of course, this person may also have been wronged, as part of an ongoing dispute or during the instant
offence, but I cannot consider these additional complexities here.
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cept of reintegrative shaming: censure the act as bad, but see the person as good and
capable of change.
Regarding ‘victim’, Christie is concerned that aspects of the ‘whole story’ are lost
through the ‘black and white’ penal lens. This occurs within a criminal trial; but more
information and complexities do emerge, and more of the ‘whole story’ can come forward in face-to-face meetings such as youth justice conferences, when admitted offenders
meet victims. Again, I do not wish to paint a rosy picture because important details in
the ‘whole story’ may not be revealed by those involved, particularly when victims are
young. Further, for some offences (especially youth peer assaults), both protagonists may
see themselves as ‘the victim’ (Daly, 2008). In these cases, the term ‘victim’ does not pose
an impediment to a conference group’s discussion, although the question of who the
victim is may be challenged. I suspect that Christie may see this as optimal, although
my research finds that it can also promote re-victimisation when a person’s experience
of harm is minimised or denied. Other examples come to mind in my research on sibling sexual abuse. In the conferences for these cases, a parent (typically a mother) has a
dual role in representing her abused child and supporting her abusive child/youth. It is
a difficult role, but it makes sense to a parent who loves both children and wants to ‘be
there’ for both of them. For a parent, the terms ‘victim’ and ‘offender’ are not the problem. Rather, it is being made to ‘tell the story’ over and over again to those who inquire
(often, but not always, the professionals). A desire to understand and hear the ‘whole
story’ sounds appealing, but we need to be aware of how it affects those who must tell
the story (again).
Punishment
Restorative justice classics by Eglash, Barnett and Zehr were ‘against’ punishment (see
Daly, 2013). Christie (1977, reprinted 2003) was unusual among the classics in that he
had a place for punishment in his ideal neighbourhood court. Paraphrasing and quoting from the reprinted text (2003: 63–64), Christie said that the court is ‘victim-centred’
and ‘lay oriented’, and the court process has four stages. The first is to establish that a law
has been broken and that the right person has been identified. The second is to focus on
‘the victim’s situation’ and what can be done to address it by the offender, then the local
neighbourhood, and then the state. After all of this, the third stage is ‘an eventual decision on punishment’, which is ‘the suffering which the judge [finds] necessary to apply
in addition to those unintended constructive sufferings the offender [will] go through
in his restitutive actions [for] the victim’ (emphasis in original). The last stage, which
takes place post-sentence, is ‘service to the offender’ to address ‘social, educational, [and]
medical’ needs.
Although these ideas were presented many years ago, it is interesting to see how
Christie imagined the contingency of punishment in his ideal court. ‘Maybe nothing
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could be done or nothing would be done. But neighbourhoods might find it intolerable
that nothing happened.’
There are several positions in the punishment debate in the field of restorative
justice.14 Duff (2003) assumes the necessity of punishment to achieve restoration; by
‘punishment’ he means that wrongdoers must suffer remorse and censure, and that reparation must be burdensome. At the other end of continuum, Walgrave (2008) views
punishment as incompatible with restorative justice; he imagines that in most cases,
restoration can be achieved more effectively without a decision-maker intending to cause
suffering. London (2011) takes a mid-way position: he, like Duff, sees punishment as
compatible with restorative justice, although he does not view punishment as necessary to achieve restoration; rather, it is introduced after other means of restoring trust
are found to be inadequate. Christie’s earlier article (1977) and more recent thinking in
‘Words on words’ (‘the outcome of a meeting between conflicting parties might end in
satisfaction for both of them’) come closest to London’s idea of punishment as a contingent decision.
It is not practical or desirable to be ‘against’ punishment, however authors may
define this term. This is because punishment is an evolving concept and social practice;
and although we may desire to see it become ‘more civilised’ or humanised, that is not
the same as being ‘against’ it. The moral intuition that an offender should ‘repay’ wrongs
remains strong, in the same way that Christie (1977) imagined that ‘neighbourhoods
might find it intolerable that nothing happened’. Punishment, as a word and idea, cannot
be willed away.
Words, more words. Thank you, Nils.
References
Aertsen, I (2008). Racak, Mahane Yehuda and Nyabyondo: restorative justice between the formal and informal. In I. Aertsen, J. Arsovska, H. Rohne, M. Valiñas and K. Vanspauwen (eds.),
Restoring justice after large-scale conflicts: Kosovo, DR Congo and the Israeli-Palestinian case
(pp. 413–443). Cullompton: Willan Publishing.
Bottoms, A. (2003). Some sociological reflections on restorative justice. In A. von Hirsch, J. Roberts,
A. Bottoms, K. Roach and M. Schiff (eds.), Restorative justice and criminal justice: competing or
reconcilable paradigms? (pp. 79–113). Oxford: Hart Publishing.
Braithwaite, J. (1989). Crime, shame and reintegration. Cambridge: Cambridge University Press.
Braithwaite, J. (1999). Restorative justice: assessing optimistic and pessimistic accounts. In M.
Tonry (ed.), Crime and justice: a review of research, vol. 25 (pp. 1–127). Chicago: University of
Chicago Press.
14
My summary here simplifies more complex arguments (Daly, 2013). I would add that the authors have in
mind only domestic contexts of responding to wrongs; in the transitional justice literature, authors are able
to bifurcate punishment of offenders from reparation to and support of victims.
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Christie, N. (1977). Conflicts as property. British Journal of Criminology, 17, 1–15. Reprinted in G.
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