Tải bản đầy đủ

Everything you always wanted to know about restorative justice

D e pa r t m e n t of C u l tu re a n d I de n ti t y, Ros k i ld e U n ive r s i t y

Everything you
always wanted to
know about
restorative justice*
Explained by
Jakob v. H. Holtermann



Everything You Always Wanted to
Know About Restorative Justice*
(*But Were Afraid to Ask)

PhD-thesis by Jakob v. H. Holtermann, M.A.
Roskilde University, July 29, 2009




Prologue ................................................................................................................................. 1
Chapter 1: Introductory Remarks ................................................................................ 3
Chapter 2: Outlining the Shadow of the Axe – On Restorative
Justice and the Use of Trial and Punishment ............................................... 27
Chapter 3: The Hobgoblin of Little Minds – Restorative Justice
and the Law .............................................................................................................. 57
Chapter 4: Caring About “How the World Happens to Be” – Reply
to Davis ....................................................................................................................... 83
Chapter 5: A “Slice of Cheese” – A Deterrence-based Argument for
the International Criminal Court ................................................................... 107
Chapter 6: The End of ‘the End of Impunity’? – The International
Criminal Court and the Challenge from Truth Commissions ............... 143
Chapter 7: Philosophical Misconstruals in the Advocacy for
Restorative Justice ................................................................................................ 165
References......................................................................................................................... 207
Index ................................................................................................................................... 217
Dansk resumé .................................................................................................................. 221
English abstract ............................................................................................................. 222

A PDF-version of this thesis is available for download and browsing at:



Howard Zehr, the “grandfather of the restorative justice movement”,
visited Copenhagen in the fall of 2008. One night at the University of
Copenhagen by the end of a well-attended lecture, Zehr took stock of the

present state of the restorative justice movement. He described how,
back in the early days when the movement was still struggling to gain
foothold, overly enthusiastic advocates had perhaps gone too far in
painting a rosy picture of the potential of restorative justice.
Zehr stressed how things had now changed. As restorative justice
had increasingly gained influence on actual criminal justice systems
around the world, it had also matured considerably. Restorative justice
was now a responsible and self-critical movement. The days of telling
only “butterfly stories” of almost miraculous, mutual healing of victim
and offender were gone. Today, proponents were well aware of the
importance of telling also the “bullfrog stories” of restorative justice.
Stories of the conferences where everything goes wrong and all leave the
process being even worse off.
Around the audience, several of whom were declared supporters of
restorative justice, there were grave nods of approval. All seemed to be
aware indeed of the importance of remaining critical. Of not getting
carried away in blind support.
In the two talks I heard Zehr give during his stay, he did not tell one
bullfrog story.



Chapter 1
Introductory Remarks

A title should be informative of the contents of the work it designates. So
looking to the title of this work one might think that I am heading for
trouble. Indeed, I have even thought so a couple of times myself – for
instance, when I first showed it to a colleague who, after some silence,
responded dryly: “Well, if you can’t take it seriously yourself…” But,
however jaunty and apparently unsuitable for an academic work that
actually does propose to be taken seriously, I think there is some sense
to made of the title after all. And so I might as well spend (parts of) the
following introductory remarks belabouring the point and try to explain
why I nevertheless find the title both fitting and informative of the
contents of the present work. Hopefully, this will help guide the reader
through the pages to come.
On the general character and subject of this thesis

The first consideration has to do with genre. This PhD thesis is not a
monograph but consists of a collection of articles that have each been
produced with a view to publication in scholarly journals.1 As are the
well-known premises for such articles, they are each supposed to
constitute completed arguments that, while they may refer to and rely to
some degree on other works, should ideally constitute self-explanatory
and self-contained narratives.
Accordingly, the present work does not pursue one thesis that
unites it, nor does it establish one single conclusion. Strictly, this makes
for a nominalistic definition: the only thing that holds the articles
together besides the binding is the author and the three year (plus) time
period during which it was written. But this, of course, is not entirely
I have therefore not changed the papers substantially for this thesis. I have only
collected the references into one standardised reference list, unified the reference
style and added an index.


Everything You Always Wanted to Know About Restorative Justice

true.2 And the title is supposed to reflect this fact. Instead of postulating
one uniting hypothesis and urge a classical “reading for the plot”, it is
meant to signal that this is a work that covers various aspects of the
same overarching subject, viz. restorative justice. Like the entries in
Doctor Reuben’s original3, each article can therefore be read and studied
independently of the other.
Even still, this is obviously not a comprehensive study. Since its
modern day revival in the 1970s and 1980s, restorative justice has
ramified wildly into a massive social movement that encompasses
worldwide initiatives involving responses to anything from school
bullying over ordinary crime in national jurisdictions to mass violence in
the shape of genocide, crimes against humanity and war crimes. Some
have even suggested a transformative conception of restorative justice
as a way of life that obliges us to “abolish the self … and instead
understand ourselves as inextricably connected to and identifiable with
other beings and the ‘external’ world.” (Johnstone & Van Ness 2007, p.
15) An exhaustive treatment of all of these aspects of restorative justice
would take more than one man and a few years and the result could
hardly be contained in a single volume.
Trusting, therefore, that the irony of the title carries through, this
thesis obviously does not contain everything the reader would like to
know about restorative justice. I have indeed done some weeding out.
First and foremost, this thesis is not about restorative justice as a way of
life, nor is it about conflict resolution in the schoolyard, at the workplace
or elsewhere. My focus is on restorative justice as it is used in relation to
crime, primarily in the context of domestic jurisdictions (cf. chapters 2-4
and 7) but also in the context of international crime (cf. chapters 5 and
Taking this focus places me in a tradition that counts Nils Christie’s
seminal article “Conflicts as Property” (1977) and Howard Zehr’s
Changing lenses : a new focus for crime and justice (2005 [orig. 1990]) as

If so, this thesis would at least also have included an article on the Danish
caricature crisis (Holtermann & Nielsen 2006) and a chapter on Alf Ross’
epistemology (Holtermann 2006) from the anthology Alf Ross. Kritiske gensyn
(Holtermann & Ryberg 2006).
3 David Reuben’s taboo-breaking bestseller Everything You Always Wanted to Know
About Sex* (*But Were Afraid to Ask) was first published in 1969. It was loosely
adapted into a comedy film in 1972 by Woody Allen.


Introductory Remarks

important theoretical starting points.4 Proponents in this tradition
generally share a widespread scepticism with regard to the traditional
criminal justice system and its preferred measures of trial and
punishment, and a corresponding enthusiasm for responses to crime
that involve, instead, the immediate stakeholders in deliberative
processes such as victim-offender mediation, conferences and circles.
Regardless of the nuances between them, these are all processes “where
the parties with a stake in a specific offence resolve collectively how to
deal with the aftermath of the offence and its implications for the
future.” (Marshall 2003, p. 28)
Even still, this loose agreement leaves much to be debated in the
advocacy for restorative criminal justice. In particular, it leaves
questions regarding the scope of restorative justice processes; questions
that in turn have led to heated definitional debates. One starting point
for these debates has been the growing awareness that not all crimes
lend themselves equally well to deliberative processes between
stakeholders. However successful the restorative justice movement,
there will inevitably be some cases that are unfit for such processes;
cases involving, for instance, openly uncooperative, hardened and
dangerous offenders.
This has led so-called purist proponents to stress the procedural
element as a sine qua non for criminal justice responses to be genuinely
restorative (cf. e.g. McCold 2000, 2004). Accordingly, such purists stick
close to the above words of Marshall as constituting the definition of
restorative justice. On this interpretation, restorative justice aligns itself
closely with the abolitionist view on punishment according to which any
use of coercive measures is morally unjustifiable.
However, other, so-called maximalist proponents assess that a
definition strictly in terms of process:
… leaves restorative justice advocates with nothing to say regarding the
way cases should be dealt with that – for whatever reason – do not lend
themselves to some form of informal offence resolution process.
(Dignan 2002, p. 175)

Even though at least Christie’s article has also been highly influential beyond the
criminal justice tradition that is my focus.


Everything You Always Wanted to Know About Restorative Justice

These proponents prefer, therefore, to define restorative justice in terms
of outcome. On one suggestion this renders restorative justice “…an
option for doing justice after the occurrence of an offence that is
primarily oriented towards repairing the individual, relational and social
harm caused by that offence.” (Walgrave 2008, p. 21) Proponents of this
definition continue to couple the concern for reparation with a heavy
preference for reaching it through deliberative processes, but they stand
ready to include also “non-deliberative schemes, and even judicial
sanctions with a view to reparation” (Walgrave 2008, p. 20). Instead of
abolishing punishment entirely, then, maximalist proponents opt for a
“future where punishment is marginalized.” (Braithwaite 1999a)
To the extent that these definitional debates have taken shape as
fights over which use of the concept of restorative justice is the real and
proper one, this work does not constitute a comment to them. I have
studied and discussed works by criminal justice theorists that consider
themselves and are often described as proponents of restorative justice.
But what the real restorative justice is I do not know.
For pragmatic reasons, however, I have found it necessary to choose
a focus for my discussions. And in so doing, I have found it most
rewarding to focus on comprehensive restorative justice theories that
purport to match the full scope of the traditional criminal justice system,
i.e. by delivering guidelines for dealing with all kinds of criminal cases
and not only those that conveniently conform with preconceived
restorative notions.
This has led me to focus in the articles primarily on maximalist,
outcome-focused versions of restorative justice. But this, perhaps, is still
too broad. This is a philosophical study of restorative justice. As such, it
is placed in that area of legal and political philosophy where the
evergreen question regarding justifiable action in response to crime is
handled. This means that the present task is not simply a descriptive one
of determining methods for dealing with various crimes. It is also
normative in that it attempts to answer how, if at all, such methods can
be justified. Not all restorative justice proponents, maximalist or other,
are equally eager to address this aspect, and so I have found it necessary
to focus on those who are (more on this below).
In the split between comprehensive criminal justice theory and
particular criminal justice measures or processes lingers also the risk of
a terminological confusion. Strictly speaking, in those maximalist
restorative justice theories that aim to deliver comprehensive answers

Introductory Remarks

to crime, all available criminal justice processes become restorative
justice processes – including those perhaps only marginally used but
nevertheless fairly traditional coercive measures we would normally call
punishment. But when speaking of particular kinds of processes and
practices, most maximalist restorative justice proponents continue to
reserve the term restorative justice only for that subset of responses that
is constituted by voluntary deliberative processes. Hence, we get the
confusion of having comprehensive restorative justice theories
recommending, inter alia, criminal justice processes that they prefer not
to call restorative! In the pages to follow, I have tried throughout to keep
the distinction between these two levels clear. It should, for the most
part, be clear from the context whether discussion takes place on the
level of theory or process, but in cases of doubt I have tried to use terms
like voluntary deliberative processes, mediation or face-to-face
encounters for the latter. Hopefully, I have managed to steer clear of
confusion but the reader should be aware that both these meanings are
at play, not only in this thesis but generally in the literature on
restorative justice.
I should like to note also that because the following chapters were
all originally written as independent articles there are some overlaps
between them. For the most part, these are minor repetitions of
definitions and shorter recapitulative passages but the reader should be
particularly warned about a longer passage in chapter 5 (pp. 110-122)
that overlaps substantially with a corresponding passage in chapter 4
(pp. 83-102). In general, these recurrences are motivated either by
attempts to bring to light new aspects of a known problem or by
expositional considerations in the individual articles. Hopefully, the
reader will be patient and not find the repetitions too tedious.
On studying restorative justice – some meta-comments

I hold the belief that subtexts are important. That is to say, not all that is
of philosophical, or more generally academic, importance takes place in
the ideal realm of overt and transparent rational arguments. Despite
appearances to the contrary, implicatures, subtexts and, on occasion,
even rhetorical foul play are manifestly present in most academic texts. I
do not (necessarily) condone this state of affairs, but I do consider it a
fact and I recognise its importance in actively shaping the contours of
the academic landscape.


Everything You Always Wanted to Know About Restorative Justice

Besides conceiving and evaluating theoretical positions as ideal
rational constructs, I therefore consider it an equally legitimate and
pertinent philosophical task to confront and expose the way positions
are propounded.5 This means studying philosophical writings with a
view also to identify the tacitly presupposed but nevertheless present
and highly efficient features of them.
In the study of restorative justice, this is a methodological precept
that I have found very useful. And this brings me to a, perhaps, more
polemical aspect of the title. For what I have found most striking in
debates on restorative justice is the significance implicitly assigned to
the assumed moral stature of discussants, and, in particular, an
associated widespread self-image in the advocacy for restorative justice
as being “the good guys”. One indication of this tendency is the moral
indignation that is present in so much writing on restorative justice. But
a more telling sign, perhaps, is found in the way theorists who do not
accept the mainstream restorative tenets, behave when they engage in
debates with proponents of restorative justice – and in the way
proponents respond to such approaches. Three examples from the
literature illustrate this tendency.
First, Antony Duff, in his writings on the existence of restorative
aspects in his own retributive theory of punishment, repeatedly feels
called to emphasise that his defence of punishment does not imply a
defence of existing penal practices. For instance, he writes:
Given the manifest deficiencies in our existing practices, a theory
that seemed to justify them would indeed, by that very fact, cast
doubt on its normative credentials […]. If the ideal is far distant
from the actual (and mine will be far distant), if we can see no rapid
route from where we are now to where we ought to be (and my
account admittedly offers no such route), we face a serious problem
[…] (Duff 2005, p. 121)6

Perhaps this attitude is inspired by Machiavelli: “[M]any have pictured republics
and principalities which in fact have never been known or seen, because how one
lives is so far distant from how one ought to live, that he who neglects what is done
for what ought to be done, sooner effects his ruin than his preservation; for a man
who wishes to act entirely up to his professions of virtue soon meets with what
destroys him among so much that is evil.” (Machiavelli 1908, p. Ch. XV)
6 Cf. also Duff (2002, p. 98).


Introductory Remarks

From this passage, restorativists will surely get the message that the
invitation to compromise with retributivism does not imply a marriage
with the much-scorned existing penal practices.
Second, proponent of restorative justice Declan Roche finds it
necessary, as part of an argument that the distance between restorative
and retributive justice has been exaggerated, to assure restorativists of
the general good will and moral stature of retributivists:
People may disagree with retributive theories of justice but it is
inaccurate to reduce them to mere revenge and the law of the jungle.
[…] It is often forgotten that retributive justice – in the guise of the ‘just
deserts’ model – was promoted by liberal reformers in the 1970s as a
response to increasing levels of punishment. (Roche 2007, p. 78)

And third, in the introduction to a critical article on the concept of
forgiveness in restorative justice, Albert W. Dzur and Alan Wertheimer
strike the following apologetic pose:
Restorative justice is a multifaceted critique of mainstream criminal
justice theory and practice, a critique with which we are partly
sympathetic. […] Nonetheless, we are inclined to be quite sceptical as to
whether the criminal justice system should seek to place forgiveness
and restoration ahead of other objectives. Even if we are wrong, and we
might well be wrong, it is important to raise these concerns. As John
Stuart Mill famously argued, we do not know whether we should have
confidence in our views unless we have tested them against important
counterarguments. And so we hope that those who think our concerns
misplaced can find it in their hearts to forgive us for raising them. (Dzur
& Wertheimer 2002, p. 4)

In general, such assurances of underlying good will and reminders of the
value and even legitimacy of being critical are, to say the least, unusual
in academic writings. But in the case of restorative justice it seems
nevertheless to be found necessary. In my view, this testifies to the
presence of a kind of subtle moral intimidation in the advocacy for
restorative justice. Potential critics must stand ready to be shunned, not
only for failure to meet academic standards of rationality but also for
moral failure.


Everything You Always Wanted to Know About Restorative Justice

One very unfortunate consequence of this intimidation, I venture, is
the tendency to preclude lines of criticism of restorative justice that do
not proceed from sufficiently congenial premises. Certain central tenets
are therefore often left unquestioned. Or, to the degree they are
questioned, it seems almost obligatory to proceed with the kind of
humility exemplified by Dzur and Wertheimer – at least if one does not
have the moral standing of an insider. And this, arguably, dims the
critical thrust considerably.
Speaking of strict taboos on restorative justice in a manner analogue
to those shrouding Doctor Reuben’s subject in the late 1960s would
probably be too dramatic. But it does seem, as a result of this
intimidation, that there is a number of pressing questions regarding
restorative justice that have long remained unanswered in the debates;
questions that it seems criminal justice theorists have almost literally
been afraid to ask. And it is, if not all, then at least some of these
questions that I have tried to answer here.
Mapping the field

Even though there are some questions regarding restorative justice that
have thus remained unposed, the point can surely be overdone. No
doubt, the rich literature on the subject already contains a lot of critical
and highly valuable investigations of various aspects of restorative
justice. In this section, I will give a short recapitulation of the field that is
constituted by debates on restorative justice in order to better situate
the work presented in this thesis. In so doing, I shall focus primarily on
those discussions that I consider to be of philosophical relevance.7
Retributive approaches: One of the key issues in debates on restorative
justice is the movement’s relationship with retributivism. From early on,
proponents of restorative justice have made a habit of emphasising a
sharp contrast between restorative and retributive notions of justice.
Indeed, at times it seems proponents have preferred to simply define
restorative justice ex negativo as being anything but retributive justice.8

7 The reader should note that what I am mapping here are topic-related discussions
of restorative justice. Hence, the same theorist can (and some in fact do) occur in
several of the discussions mentioned.
8 Cf. Braithwaite (1999b, p. 4): “Restorative justice is most commonly defined by
what it is an alternative to.”


Introductory Remarks

This has been a crucial part of the highly influential claim originally
propounded by Zehr (2005 [orig. 1990]) that restorative justice is not
simply a new method but a whole new way of conceiving crime; that it
constitutes a new paradigm in the strong Kuhnian sense of that word.
During recent years, however, this stark oppositional image of
restorative and retributive justice has met with resistance in the
literature. Several theorists have tried to even out the contrast, and the
implication of these attempts, ultimately, has been a direct challenge to
the paradigm claim. These suggestions have roughly come from two
directions: From “within” the movement in the shape of restorative
justice proponents who have felt a growing dissatisfaction with the
uncompromising rhetoric of the restorative campaign (cf. notably Daly,
e.g. 1999; 2002, 2006; but also Roche 2007) and from the “outside” in
the shape of retributivists examining the possibilities of hybrid positions
in the border region between the two conceptions of justice (cf. notably
Duff, e.g. 2002; 2003; but also Zedner 1994).
For the most part, however, such invitations have been kindly but
firmly declined by proponents of restorative justice. In the words of
Braithwaite, “the marriage of retribution and restorative justice is not a
wedding we should want to attend.” (2003b, p. 18) Thus, rejecting the
advances of retributivism has been fairly easy for restorativists in the
purist tradition who categorically reject any use of coercion, and insist
that punishment constitutes the exact opposite of restoration. Indeed,
the purist definition of restorative justice is explicitly motivated by its
ability to provide a more efficient bulwark against retributivism (McCold
2000, 2004).
Proponents in the maximalist tradition, on the other hand, have
found somewhat greater difficulty in categorically turning down the
offer because of their acceptance of the inclusion of coercion in
restorative justice. This has put the paradigm claim under greater
pressure, but also in these parts of the restorative justice advocacy have
proponents for the most part retained faith. In the words of Walgrave:
Restorative justice is based on a different paradigm, inspired by a
clearly distinct philosophy … It is not possible to judge different
paradigms with the same criteria, just as it is not possible to play
American football with the rules of soccer. (Walgrave 2008, p. 155)


Everything You Always Wanted to Know About Restorative Justice

From the “other side of the fence”, some retributivists have made almost
symmetrical moves in that they have rejected the feasibility of hybrid
versions and chosen instead to stick to pure retributivist positions
regardless of the presence of a new player in the criminal justice field
(Ashworth 1993; A. von Hirsch, Ashworth, & Shearing 2003; for criticism
of pure restorative justice, cf. also von Hirsch & Ashworth 1992).
Restorative justice failing the revolution: A wholly different line of
criticism of restorative justice has been launched from an angle that is
much closer to the purist tradition. Here, the objection is that restorative
justice fails to deliver on its revolutionary promise and make a
sufficiently clear break with the existing criminal justice system. These
criticisms tend to take the shape of rather radical rationality critiques in
the post modern and post structuralist traditions. For instance, Pavlich
(2005) has accused restorative justice of falling pray to the so-called
imitator paradox, in that restorative justice, allegedly uncritically,
inherits the traditional criminal justice categories of “crime”, “victim”,
“offender”, “etc”.
A related but somewhat more subdued line of criticism warns of the
danger of restorative justice inadvertently participating in a second and
perhaps even more effective round of “stealing conflicts from the
people” (cf. Christie 1977). This possibility occurs when the ideal of
informal justice gets co-opted by the criminal justice system into an
informal-formal justice complex through increased professionalisation,
institutionalisation, etc.:
Police officers, lawyers and judges have become necessary players in
most restorative programmes, acting as gatekeepers, administrators
and facilitators of their operations. With them, they bring the dominant
rationalities of criminal justice. (Woolford & Ratner 2008, pp. 118-119)

Restorative justice idealising the past: Yet another important aspect of
the existing literature on restorative justice regards the role frequently
assigned in the advocacy for restorative justice to certain sociohistorical observations. It is quite common in the writings of proponents
to find passages stressing the originality of restorative justice. For
instance, Braithwaite writes: “Restorative justice has been the dominant
model of criminal justice throughout most of human history for all the
world’s peoples.” (Braithwaite 1999b, p. 2) Though it is rarely stated

Introductory Remarks

explicitly, such observations tend to play the role of a kind of
genealogical argument that attempts to justify restorative justice by
transferring authenticity and naturalness to it. As Gerry Johnstone
writes with reference to restorative writings specifically on Navajo
There is an implication that Navajo peacemaking represents a natural,
authentic form of justice, a form abandoned by modern western
societies in favour of a more ‘artificial’ system of state punitive justice.
(Johnstone 2002, p. 45)

These arguments have, however, met with counterarguments from
critics who accuse restorative justice proponents of romantic
idealisations of the past. For instance, Daly writes:
Efforts to write histories of restorative justice, where a pre-modern
past is romantically (and selectively) invoked to justify a current justice
practice, are not only in error, but also unwittingly reinscribe an
ethnocentrism their authors wish to avoid. (Daly 2003, p. 368)9

In line with this criticism, some theorists have tried to confront
restorative justice by presenting less idealised and better empirically
supported images of criminal justice in original cultures (cf. Bottoms
Questioning restorative ethics: One last area in this short survey of
aspects of restorative justice that deserve and have so far received
philosophical attention in the literature, relates more closely to the
central claims of the restorative justice advocacy, i.e. claims of the allimportance of achieving forgiveness, apology and mutual healing of
victim and offender in the aftermath of crime. In recent years, a number
of criminal justice theorists have questioned the moral vision underlying
these claims. For instance, such critics have accused restorative justice
of implicitly (and at times even explicitly) scorning victims’ legitimate

9 Cf. also Bottoms (2003, p. 93): “[T]here is […] no easy line of normative argument
that can be drawn from reconciliatory/restitutive processes in pre-modern societies
to the advocacy of RJ [restorative justice] (or equivalent procedures) in
contemporary societies.”


Everything You Always Wanted to Know About Restorative Justice

feelings of resentment and anger (cf. Brudholm 2008) and, in so doing,
of missing what is often the true tragedy of crime: “Nothing can make
things better.” (Acorn 2004, p. 55)
In support of these lines of criticism, it has often been stressed that
by indulging in rosy stories of almost miraculous turning points and
mutual respect and healing, proponents of restorative justice vastly
overstate its potential. As Daly soberingly notes on the basis of her longtime research on restorative conferences: “How often, then, does the
exceptional or ‘nirvana’ story of repair and goodwill occur? […] I suspect
that [it] will be infrequent; it may happen 10 percent of the time, if that.”
(Daly 2002, p. 70)
Placing this work on the map

To be sure, several other lines of discussion and criticism are
continuously being pursued in the ongoing and evolving debates on
restorative justice. The above suffices, however, to give an impression of
the more philosophically significant strands of the discussion. And it
suffices, in particular, to situate the present work in a larger context. It
does so, primarily, ex negativo in that this work does not adopt, or does
so only to a fairly limited degree, any of the above critical approaches. I
should perhaps stress that I am fundamentally sympathetic to and find
myself roughly in agreement with the general lines of criticism
presented in the latter two of the areas mentioned. But, returning to the
title, it is for obvious reasons not so much in these areas that I have
found questions that theorists have been “afraid to ask”.
Rather, the common denominator for the work found in this thesis
has been to focus primarily on those assumptions i) that have so far
attracted little attention in debates on restorative justice; ii) that appear
to be taken for granted in the advocacy for restorative justice; and iii)
that nevertheless play a prominent role as implicit or explicit premises
in that advocacy.
This has led me to focus, first and foremost, on the relationship
between restorative justice and roughly traditional consequentialist
theories of criminal justice. As mentioned above, much energy has been
invested in studying the relationship between restorative justice and
retributivism. Its relationship to the other great traditional player in the
field of criminal justice, on the other hand, is one that I have found


Introductory Remarks

largely unexplored and undebated. I believe this is very unfortunate for
a number of reasons and I explore some of them in the chapters 4-7.
One important problem regarding the relationship with
consequentialism relates directly to the paradigm claim which stands at
the heart of the advocacy for restorative justice. While this particular
claim has been thoroughly investigated with regard to the relationship
between restorative justice and retributivism, it has been left largely
untested with regard to traditional consequentialist theories of criminal
justice. As a result, this crucial part of the self-proclaimed status of
restorative justice as a kind of Third Way in criminal justice seems
simply to be taken for granted.
But this is unfortunate because it fails to grasp what is really at
stake in the paradigm claim. As Walgrave noted above, what is really at
stake is the criteria according to which we should ultimately evaluate
restorative justice. Do we have on our hands a genuine philosophical
novelty or are we in fact only witnessing a variation of the age-old
struggle between retributive and consequentialist theories of criminal
justice. This is the question that I undertake to answer in chapter 7:
“Philosophical Misconstruals in the Advocacy for Restorative Justice”.
But I have also found the relationship between restorative justice
and traditional consequentialism unclear on another important issue.
Traditionally, consequentialists justify punishment by its ability to
prevent crime through (individual and general) deterrence,
incapacitation and rehabilitation.10 In the advocacy for restorative
justice, on the other hand, such claims of the general means-ends
efficiency of punishment is firmly denied, and belief in them is scorned
as unscientific and portrayed, roughly, as a matter of irrational habit. As
a result, traditional criminal justice is touted as an utter failure.
This deep scepticism with regard to the crime preventive effects of
punishment constitutes an important premise in the argument for
restorative justice. The stronger a sense of failure that can be ascribed to
the existing criminal justice system, the stronger the perceived need to
reorient radically. Even still, this premise is rarely carefully argued in
the advocacy for restorative justice but is simply presented more or less
as a commonplace. This all-out restorative scepticism with regard to the

To this should be added also the “displacement function of law”, i.e. the ability of
punishment to “remove some of the temptation to retaliate” (Gardner 1998, p. 31).



Everything You Always Wanted to Know About Restorative Justice

crime preventive effect of punishment, therefore, constitutes another
key tenet that I have found insufficiently tested in the literature.
I address this question in chapters 4: Caring about ‘How the World
Happens to Be’ – Reply to Davis”) and 5: “A ‘Slice of Cheese’ – A Deterrencebased Argument for the International Criminal Court” – though my focus
in these chapters is restricted to crime prevention through deterrence.
Ironically, due to the perceived commonplace character of the claim that
punishment cannot be justified on grounds of deterrence, I have had to
move outside the restorative justice campaign to find criminal justice
theorists who actually take the time to argue at some length for this
view. Thus, the primary discussant on the issue of general deterrence in
chapters 4 and 5 is the retributivist philosopher Michael Davis. Seeing
that some of the chapters of this thesis strictly are not even about
restorative justice, some readers will perhaps find their worries
regarding the title sadly confirmed. But I believe that the conclusions
established nevertheless have direct implications for the campaign for
restorative justice. They do so to the extent that that campaign
manifestly relies on claims about the failure of punishment to actually
prevent crime.
Chapter 5 moves beyond the discussion in chapter 4, however, in
that it addresses the issue of deterrence primarily in the context of
international crimes dealt with in the newly established International
Criminal Court, i.e. genocide, crimes against humanity and war crimes.
Discussing restorative justice in this particular context takes us away,
perhaps, from the core of the campaign, with its main focus on
“ordinary” domestic crime. However, a considerable part of the
movement has transferred the basic restorative rationales and values to
the international context of mass violence. Here, the restorative justice
advocacy takes the shape of a campaign for the use of truth and
reconciliation commissions along the lines of the Desmond Tutu-led post
apartheid commission in South Africa.
Like in the national context, part of the campaign for restorative
justice in response to mass atrocities relies on the claim that punishment
cannot be justified preventively on grounds of deterrence. But in the
international context it seems that there is a greater willingness to
address directly the issue of deterrence. Thus, in discussions of the socalled domestic analogy critics of the ICC explicitly present reasons why
the idea of a deterrent effect of punishment should be even worse off in
the international context than in the national. Besides restating some of

Introductory Remarks

the main arguments and conclusions on general deterrence from chapter
4, I therefore address, in chapter 5, some of the arguments that have
been launched in order thus to break down the domestic analogy.
The international angle has also taken me on the perhaps longest
incursion from the traditional philosophical issues pertaining to
restorative justice. In chapter 6: “The End of ‘The End of Impunity’?”, I
consider the practical implications of the philosophical clash between
the rationales underlying the ICC (on a consequentialist conception) and
those underlying truth and reconciliation commissions. The pertinent
question that emerges in this regard is how the ICC-prosecutor should
respond in a future scenario where the punitive imperative guiding the
ICC clashes with conditional amnesties granted on restorative grounds
in national truth and reconciliation commissions.
In contrast to chapters 4-7, the first two chapters of this thesis deal
with aspects of the restorative justice advocacy that have nothing to do
with consequentialism. But the common denominator remains, also in
these chapters, the investigation of core restorative justice premises that
is taken for granted by proponents and have remained largely
unquestioned in the literature.
One such premise regards the modus operandi of the law in the
traditional criminal justice system. One of the reasons, we are told, for
abandoning the criminal justice of the courtroom for the informal
restorative processes of stakeholders, has to do with the character of the
law as such. Ruling in accordance with the principle of legality, we are
told, binds judges to a perception of the criminal cases that is too
abstract and formalistic. Restorative justice processes, by contrast, are
hailed for their context sensitivity and their ability to take properly into
account the emotional needs of the stakeholders.
Considering the importance of these claims in the campaign for
restorative justice, it is striking how little attention they have attracted.
In particular, it is striking how little attention has been paid to a critical
investigation of the soundness of the dismissive critique of the law vis-àvis a 2,500 year long tradition in the philosophy of law of addressing
that problem head-on. In chapter 3: “The Hobgoblin of Little Minds –
Restorative Justice and the Law”, I try to make up for this deficiency.
One final question that I have found insufficiently treated in
philosophical discussions of restorative justice, regards the exact
outlines of a comprehensive restorative criminal justice system.
Advocates of restorative justice have generally provided clear images of

Everything You Always Wanted to Know About Restorative Justice

various versions of restorative justice processes like victim-offender
mediation, conferencing, family group circles, etc. And proponents in the
maximalist tradition have also explicitly admitted to the need to
supplement, in some measure, these processes with roughly traditional
criminal justice processes of court trial and punishment.11 What I have
found insufficiently accounted for, however, is the kind of metaprocedural guidelines according to which proponents imagine that
individual criminal justice cases should be dealt with in one or the other
of these fora. The importance of settling this question is repeatedly
downplayed in the literature, often with references to the need not to
strangle in rigid rule formalism the flexibility and sensitivity of
restorative justice.
But this is problematic. Of course, in a philosophical discussion
advocates of restorative justice should be allowed not to describe the
criminal justice system in every minute little detail. But if we are
supposed to abandon traditional criminal justice in favour of a wholly
new restorative system, we should at least have a rough idea of how
such a system would look. Restorativists should therefore be capable of
providing clear principled meta-procedural guidelines for the type of
process they recommend for fairly typical kinds of criminal cases. In
chapter 2: “Outlining the shadow of the axe – On Restorative Justice and
the Use of Trial and Punishment”, I press for such guidelines, and I do so
concretely by systematically reconstructing and critically evaluating
those suggested by John Braithwaite in his comprehensive theory of
restorative justice and responsive regulation.
Some considerations on method

This thesis does not constitute an empirical study on how this or that
criminal justice process works on this or that type of crime. Nor is it a
legal study on the arrangement of this or that particular criminal justice
system or a comparison between several such systems. It is a
philosophical study of the fundamental theoretical presumptions
underlying the restorative justice movement and it is carried out in
order to better understand and critically assess the claims of that

Even though some proponents, notably Walgrave, prefer to speak of restorative
sanction instead of punishment.



Introductory Remarks

I must confess, however, that I have found it difficult to get a hold on
restorative justice as an object for such critical philosophical appraisal.
As earlier mentioned, restorative justice is a very broad phenomenon
covering a wide variety of theoretical traditions and practices, and it is
highly doubtful if any one feature can be singled out that they all share in
common. Occasionally, however, I have had the impression that
proponents consciously utilises this definitional vagueness as part of a
convenient rhetorical strategy to dodge criticism by claiming that it fails
to address “the real” restorative justice whatever that might be. As a
result, theoretical discussions of restorative justice have a sad tendency
to turn into rather unfruitful games of hide-and-seek.
I have tried to counter this tendency by being fairly specific in
choosing subjects of study. Besides focusing, as earlier mentioned, on the
maximalist tradition, I have looked primarily on the writings of
particular theorists rather than on restorative justice as such. However,
as an academic theory restorative justice is anything but armchair
philosophy. True to the movement’s origins in the 1970’s among
practitioners in the penal system, proponents have maintained a strong
commitment to empirical studies of actual effects of various criminal
justice processes. As a result, most of the academic work in the field
comes out of the social sciences generally and criminology in particular.
Looking for restorativists that engage head-on in philosophical issues
therefore quickly decimates the field.
In this remaining group, I have found the work of John Braithwaite
to be of particular interest. His defence of restorative justice is generally
characterised by clear exposition, a high degree of philosophical
sophistication and a willingness to take foundational issues seriously.
For this reason, Braithwaite constitutes the main discussion partner in
chapters 2, 3 and 7 (together with Philip Pettit). Other main discussants
in the articles count Lode Walgrave, Howard Zehr, Nils Christie and
Michael Davis among others.
Another methodological issue that deserves mention has to do with
terminology. In the following pages, I have found myself frequently
discussing, interpreting and at times also defending rather general
positions and institutions like the traditional criminal justice system,
standard consequentialist penal philosophy, preventionism, traditional
deterrence theory and the like.
Generally, using such broad and vague categories in academic
discourse is potentially problematic. I have nevertheless found it

Everything You Always Wanted to Know About Restorative Justice

necessary to do so for two reasons. First, in much of the advocacy for
restorative justice these are in fact the kinds of positions and institutions
(together with “retributivism”) that proponents most often appoint as
the theoretical opponents of restorative justice. I have therefore tried to
accept these conditions for the discussion of restorative justice and not
render my critical claims dependant on an initial acceptance of the
philosophy of this or that individual punishment philosopher.
Secondly, it is a well-known fact that consequentialism has fallen on
hard times in criminal justice theory during the last half-century. To the
degree discussions of restorative justice have touched upon the ability of
consequentialism to counter the criticism launched in the advocacy, I
have therefore for the most part found it necessary to tread my own
path, i.e. provide my own rational reconstruction of what would
constitute a reasonable consequentialist justification of the traditional
criminal justice system.
This brings me to one final important methodological consideration.
It should be noted that what is generally referred to in the following
pages as the traditional criminal justice system, is not this or that actually
existing criminal justice system. What is at stake is not the particular
criminal justice system in Denmark, Germany or the United States with
all their manifest deficiencies, inconsistencies and, at times, inhumane
treatment of both victims and offenders. I am writing in the abstract,
about criminal justice systems that are traditional in the sense that they
dispose punishment after a finding of criminal guilt in a court trial in
accordance with the procedural safeguards associated with the rule of
This is a point that I have perhaps not expressed with sufficient
clarity throughout the articles but it is nevertheless important to keep in
mind. Not only because I too succumb to the fear of having “doubt cast
on the normative credentials of my theory”, but also because keeping the
distinction clear saves us from comparing oranges and apples in
criminal justice theory. There is an outspoken tendency in the advocacy
for restorative justice to compare states of affairs in ideal restorative
utopia with those in criminal justice systems actually in existence. As
Dolinko writes with specific regard to Braithwaite’s criticism of
The power disparities that Braithwaite treats as immutable and
overwhelming when they sabotage the “just deserts” program somehow


Tài liệu bạn tìm kiếm đã sẵn sàng tải về

Tải bản đầy đủ ngay