1
RESTORATIVE JUSTICE SAMENVATTING
WEEK 1: INTRODUCING AND DISCOVERING RESTORATIVE JUSTICE
RESEARCH ON VICTIMS AND SOCIETY
Narrative victimology
Cultural victimology
Victims in justice processes/ ethics of victimology
Political violence, terrorism and international crimes
Connection between academia and practice: past history with victim support
RESERACH ON HUMAN RESPONSES TO INJUSTICE
Participant perspectives on restorative justice
Governance and organisation of restorative justice
Culture and restorative justice
INTRODUCING RJ
What, if anything, do you know about restorative justice?
o What does restorative justice mean for you?
o What makes it interesting or relevant?
o Is restorative justice available in your country?
Think about the last time you became really angry
o What did you want or need?
o To what extent do you think the criminal justice system will meet your needs?
What, if anything, do you know about restorative justice?
o What do you think is central to the idea of restorative justice?
o What do you expect from this course on RJ?
o What subjects would you like to learn about?
o Would you consider participating
…as a victim?
…as an offender?
A WIDELY ACCEPTED DEFINITION
‘Restorative justice is a problem-solving approach to crime which involves the parties
themselves, and the community generally, in an active relationship with statutory agencies. It is
not a particular practice, but a set of principles which may orientate the general practice of any
agency or group in relation to crime.’
‘Restorative justice is a process, whereby parties with a stake in a specific offence collectively
resolve how to deal with the aftermath of the offence and its implication for the future’
‘Restorative justice is every action that is primarily oriented toward doing justice by repairing
the harm that has been caused by a crime’
,2
DIFFERENT DEFINITIONS
Centred on three basic conceptions (Johnstone and Van Ness, 2007):
o Encounter conception →process
o Reparative conception → outcome
o Transformation conception → transform our understanding of aspects of social life and
ourselves
Purist and maximalist interpretations (Walgrave)
4 FOUNDING FATHERS
Louk Hulsman
o ‘Civilizing criminal justice’
Two main points of criticism of criminal justice
- Focus on punishment in criminal justice
Prison is an expensive way of making people worse
The process is the punishment: stigmatisation
Search for more ‘constructive’ alternatives
- The social construction of crime: Hulsman denies that crime is an
‘ontological’ category of human behaviour
Abolitionism
- Connected to Elias – the civilizing process (making the reaction to crime
more civilized
- Civilization of criminal justice (first meaning)
The abolition of slavery
The abolition of the death penalty
The abolition of prison
The abolition of criminal justice
- Civilization of criminal justice (second meaning)
Removal of barriers to civil (tort) law
o The social construction of crime – Hulsman emphasizes the social construction of crime
Changing perspectives on crime over time: see homosexuality, domestic violence
or paedophilia
Uneven criminalisation of vice: see changing and varied perspectives on drugs,
gambling, prostitution
Different treatment of white-collar crime: large damage of white collar crime, but
is more likely to be treated as a tort
Certain non-criminal acts are far more damaging than criminal acts: argument
from “zemiology”
According to Hulsmna, this means that crime is an inconsistent and uneven
category no reason to seperatie it – in law – from other harmful behaviour
o Restorative justice
Substantial grey area in what is and what is not considered to be crime
This applies even more so to the use and disuse of involving criminal justice: see
also the notion of criminal law as ‘ultima ratio’
Approaches that are successful in dealing with (non-criminal) conflicts and
wrongdoing, can also be useful in the reaction to crime
Nils Christie: ‘Conflicts as Property’
o Who “owns” the conflict?
From the past to the present reaction to crime
- In the past: Germanic/ Scandinavian systems of Wergeld a reaction to
crime that involved a variety of modalities of compensation and revenge
between those directly involved
- Today: “retributive justice”: reaction to crime a matter for the state versus
the suspect/ offender
,3
o Retrieving conflicts
Crime is a conflict between people rather than a breach of an abstract order of
law
- “Conflict” rather than “crime”
- Conflicts are people’s valuable possessions, from which they may learn,
grow etc.
Important of active involvement of:
- Victim and offender
- Community
- Laypersons
Reduction of role played by
- Professionals, prominently lawyers, but also social workers, psychologists
etc.
- The state
- Preference for informal means of conflict resolution
Inspired by ADR mechanisms in Arusha, Tanzania
o Critique of the state and the state’s actors
In Christie’s view state involvement is problematic
- State’s retributive focus has obscured people’s natural restorative
tendencies
- Retributive punishment (as a part of the state’s monopoly on violence) as
a tool to exert the state’s power
- Points to a different time/ place without retributive punishment
o Restorative justice
Christie emphasizes the role of the people with the greatest stake in an offence in
its resolution
Conflict and crime can be extremely damaging, but can –in cases- offer the
potential for learning and insight
Criminal justice is influenced by power – of the state as well as powerful interests
within the states- conflict can challenge power
Howard Zehr: ‘Changing Lenses’
o How we look at crime
o How we react to crime
o 3 problems with retributive justice
The ‘blame game’:
- Criminal justice seems focus on establishing guilt and assigning blame for
what happened
- The massive stigma of being called a criminal- associated with this blame
game, means that offenders have a very strong incentive to deny their
involvement
The ‘pain game’:
- After blame comes the punishment: the rationalised infliction of pain on
the offender
- Leads to further damage and hardship, but also reinforces the legitimacy
of using violence as a means to an end; similar to the reason why the
crime was committed in the first place
The focus on the blame game and the pain game obscures meeting the needs of
those most directly harmed
o Contrast between retributive and restorative justice
The focus on the blame and pain games means that insufficient or even no
attention is paid to those suffering the most from the crime: its victims
- This not only fails to meet their needs, but adds to their injury the focus on
the blame and the pain game lead to ‘secondary victimisation’
, 4
Therefore Zehr proposes restorative justice as an alternative paradigm, that starts
from the needs of the victims for repairs, and foregoes the blame and pain games
John Braithwaite: ‘A better future’
o What shouldn’t we take for granted?
o Interacting with the offender in the reaction to crime
Criminal justice leads to (permanent) stigmatisation
- Destructive shaming
- Rejection of the offender as a person, rather than the offender’s actions
- The offender is removed (often literally) from society
Talking about the offender, rather than with the offender
No possibility for the offender to take responsibility and make amends
Instead: positive, reintegrative shaming
- Hate the sin, not the sinner
- Communication to help the offender see the errors of his ways
- Opportunities for the offender to make amends
Reintegrative shaming experiments (RISE)
- Again: informal means of conflict resolution
- Inspired by original inhabitants of Australia
o Restorative justice
Braithwaite’s critique of the impact of the criminal trial and punishment on the
offender:
- The trial and punishment mostly have only adverse effects on the extent to
which the offender experiences remorse
His approach offers young offenders the opportunity to escape (unwarranted)
stigmatization that will carry over into their adult life
o Hegemonic notions?
Braithwaite emphasizes the hegemonic spread of the following ideas
- The idea of crime itself and that criminal law should be codified;
- The idea that crimes are committed against the state;
- Central state control of criminal justice;
- The idea of having a professionalized police who are granted a monopoly
over the use of force in domestic conflicts;
- The idea of moving away from compensation as the dominant way of
dealing with crime by building a state prisons system to systematically
segregate the good from the bad;
- The idea that fundamental human rights should be protected during the
criminal process.
o Possibility to question these assumptions
Braithwaite emphasizes:
- The cultural situatedness of these assumptions
- The genealogical/ historical development of these assumptions
- The problematic consequences of these notions
Key message: do not take them for granted
- Against the self-evidence of hegemonic notions
Founding fathers primarily target crime and criminal justice
o But each also allude to the transformation conception
o A different way of thinking about people
For instance: a rejection of the assumption that we live in a hierarchical order with
other people
RESTORATIVE JUSTICE SAMENVATTING
WEEK 1: INTRODUCING AND DISCOVERING RESTORATIVE JUSTICE
RESEARCH ON VICTIMS AND SOCIETY
Narrative victimology
Cultural victimology
Victims in justice processes/ ethics of victimology
Political violence, terrorism and international crimes
Connection between academia and practice: past history with victim support
RESERACH ON HUMAN RESPONSES TO INJUSTICE
Participant perspectives on restorative justice
Governance and organisation of restorative justice
Culture and restorative justice
INTRODUCING RJ
What, if anything, do you know about restorative justice?
o What does restorative justice mean for you?
o What makes it interesting or relevant?
o Is restorative justice available in your country?
Think about the last time you became really angry
o What did you want or need?
o To what extent do you think the criminal justice system will meet your needs?
What, if anything, do you know about restorative justice?
o What do you think is central to the idea of restorative justice?
o What do you expect from this course on RJ?
o What subjects would you like to learn about?
o Would you consider participating
…as a victim?
…as an offender?
A WIDELY ACCEPTED DEFINITION
‘Restorative justice is a problem-solving approach to crime which involves the parties
themselves, and the community generally, in an active relationship with statutory agencies. It is
not a particular practice, but a set of principles which may orientate the general practice of any
agency or group in relation to crime.’
‘Restorative justice is a process, whereby parties with a stake in a specific offence collectively
resolve how to deal with the aftermath of the offence and its implication for the future’
‘Restorative justice is every action that is primarily oriented toward doing justice by repairing
the harm that has been caused by a crime’
,2
DIFFERENT DEFINITIONS
Centred on three basic conceptions (Johnstone and Van Ness, 2007):
o Encounter conception →process
o Reparative conception → outcome
o Transformation conception → transform our understanding of aspects of social life and
ourselves
Purist and maximalist interpretations (Walgrave)
4 FOUNDING FATHERS
Louk Hulsman
o ‘Civilizing criminal justice’
Two main points of criticism of criminal justice
- Focus on punishment in criminal justice
Prison is an expensive way of making people worse
The process is the punishment: stigmatisation
Search for more ‘constructive’ alternatives
- The social construction of crime: Hulsman denies that crime is an
‘ontological’ category of human behaviour
Abolitionism
- Connected to Elias – the civilizing process (making the reaction to crime
more civilized
- Civilization of criminal justice (first meaning)
The abolition of slavery
The abolition of the death penalty
The abolition of prison
The abolition of criminal justice
- Civilization of criminal justice (second meaning)
Removal of barriers to civil (tort) law
o The social construction of crime – Hulsman emphasizes the social construction of crime
Changing perspectives on crime over time: see homosexuality, domestic violence
or paedophilia
Uneven criminalisation of vice: see changing and varied perspectives on drugs,
gambling, prostitution
Different treatment of white-collar crime: large damage of white collar crime, but
is more likely to be treated as a tort
Certain non-criminal acts are far more damaging than criminal acts: argument
from “zemiology”
According to Hulsmna, this means that crime is an inconsistent and uneven
category no reason to seperatie it – in law – from other harmful behaviour
o Restorative justice
Substantial grey area in what is and what is not considered to be crime
This applies even more so to the use and disuse of involving criminal justice: see
also the notion of criminal law as ‘ultima ratio’
Approaches that are successful in dealing with (non-criminal) conflicts and
wrongdoing, can also be useful in the reaction to crime
Nils Christie: ‘Conflicts as Property’
o Who “owns” the conflict?
From the past to the present reaction to crime
- In the past: Germanic/ Scandinavian systems of Wergeld a reaction to
crime that involved a variety of modalities of compensation and revenge
between those directly involved
- Today: “retributive justice”: reaction to crime a matter for the state versus
the suspect/ offender
,3
o Retrieving conflicts
Crime is a conflict between people rather than a breach of an abstract order of
law
- “Conflict” rather than “crime”
- Conflicts are people’s valuable possessions, from which they may learn,
grow etc.
Important of active involvement of:
- Victim and offender
- Community
- Laypersons
Reduction of role played by
- Professionals, prominently lawyers, but also social workers, psychologists
etc.
- The state
- Preference for informal means of conflict resolution
Inspired by ADR mechanisms in Arusha, Tanzania
o Critique of the state and the state’s actors
In Christie’s view state involvement is problematic
- State’s retributive focus has obscured people’s natural restorative
tendencies
- Retributive punishment (as a part of the state’s monopoly on violence) as
a tool to exert the state’s power
- Points to a different time/ place without retributive punishment
o Restorative justice
Christie emphasizes the role of the people with the greatest stake in an offence in
its resolution
Conflict and crime can be extremely damaging, but can –in cases- offer the
potential for learning and insight
Criminal justice is influenced by power – of the state as well as powerful interests
within the states- conflict can challenge power
Howard Zehr: ‘Changing Lenses’
o How we look at crime
o How we react to crime
o 3 problems with retributive justice
The ‘blame game’:
- Criminal justice seems focus on establishing guilt and assigning blame for
what happened
- The massive stigma of being called a criminal- associated with this blame
game, means that offenders have a very strong incentive to deny their
involvement
The ‘pain game’:
- After blame comes the punishment: the rationalised infliction of pain on
the offender
- Leads to further damage and hardship, but also reinforces the legitimacy
of using violence as a means to an end; similar to the reason why the
crime was committed in the first place
The focus on the blame game and the pain game obscures meeting the needs of
those most directly harmed
o Contrast between retributive and restorative justice
The focus on the blame and pain games means that insufficient or even no
attention is paid to those suffering the most from the crime: its victims
- This not only fails to meet their needs, but adds to their injury the focus on
the blame and the pain game lead to ‘secondary victimisation’
, 4
Therefore Zehr proposes restorative justice as an alternative paradigm, that starts
from the needs of the victims for repairs, and foregoes the blame and pain games
John Braithwaite: ‘A better future’
o What shouldn’t we take for granted?
o Interacting with the offender in the reaction to crime
Criminal justice leads to (permanent) stigmatisation
- Destructive shaming
- Rejection of the offender as a person, rather than the offender’s actions
- The offender is removed (often literally) from society
Talking about the offender, rather than with the offender
No possibility for the offender to take responsibility and make amends
Instead: positive, reintegrative shaming
- Hate the sin, not the sinner
- Communication to help the offender see the errors of his ways
- Opportunities for the offender to make amends
Reintegrative shaming experiments (RISE)
- Again: informal means of conflict resolution
- Inspired by original inhabitants of Australia
o Restorative justice
Braithwaite’s critique of the impact of the criminal trial and punishment on the
offender:
- The trial and punishment mostly have only adverse effects on the extent to
which the offender experiences remorse
His approach offers young offenders the opportunity to escape (unwarranted)
stigmatization that will carry over into their adult life
o Hegemonic notions?
Braithwaite emphasizes the hegemonic spread of the following ideas
- The idea of crime itself and that criminal law should be codified;
- The idea that crimes are committed against the state;
- Central state control of criminal justice;
- The idea of having a professionalized police who are granted a monopoly
over the use of force in domestic conflicts;
- The idea of moving away from compensation as the dominant way of
dealing with crime by building a state prisons system to systematically
segregate the good from the bad;
- The idea that fundamental human rights should be protected during the
criminal process.
o Possibility to question these assumptions
Braithwaite emphasizes:
- The cultural situatedness of these assumptions
- The genealogical/ historical development of these assumptions
- The problematic consequences of these notions
Key message: do not take them for granted
- Against the self-evidence of hegemonic notions
Founding fathers primarily target crime and criminal justice
o But each also allude to the transformation conception
o A different way of thinking about people
For instance: a rejection of the assumption that we live in a hierarchical order with
other people
