How firm are the theoretical foundations of restorative justice? ‘Restorative Justice: Towards a new European Perspective’, 16&17 May 2013 Thessaloniki, Greece Dr.
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How firm are the theoretical foundations of restorative justice?
‘
Restorative Justice: Towards a new European Perspective
’
, 16&17 May 2013 Thessaloniki, Greece Dr. Theo Gavrielides IARS Founder & Director
When we think of restorative justice …
•
.. in a policy context (national international) – a tool for improving the criminal justice system
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.. as a practice – diverting and resolving criminal cases
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.. as a values system – informing our code of conduct
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Here … as a norm
“Restorative Justice must be more than a programme within the current system – it must be a new paradigm for responding to harm and conflict with its own philosophical and theoretical framework . Facilitating this shift requires a re-thinking of the assumptions around punishment and justice, placing emphasis instead on values and relationships ”
Elliott, L, 2011 Security with Care
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What do we know about restorative justice?
• It is a growing, international movement • It appears in various shapes and forms (mediation, conferencing, circles, restorative boards) both within and outside of the criminal justice system • It can appear at any stage of the criminal justice system • It has roots in ancient, Greek and indigenous civilisations and was brought back in the 1970s • It has attracted volumes of writing • We have more evidence on restorative justice than any other criminal justice policy, and yet … • Restorative justice is back on the agenda internationally!
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There is also consensus that restorative justice:
• Suffers from definitional ambiguity • Lacks consistency in its application • Suffers from low public awareness • Sometimes promises more than what it can deliver and often delivers more than what it promises • Suffers from lack of resources and funding • It exists in the margins of the criminal justice system and often in the shadow of the law and policy • It doesn’t always work, but where and when it works it can render better outcomes for offenders, victims and the community.
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How often do we pose and reflect?
How are restorative justice practices justified?
How is restorative justice morally justified?
Does restorative justice belong to the world of theories or is it just a variation of criminal justice practice? Does this matter for today ’s policy and practice?
Can we take a step back?
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Laying the foundations …
• • • •
1970s:
Eglash, Barnett, Christie, Bianchi – Abolitionism, “alternative paradigm ” , “ conflicts as property ”
1980s:
Zehr “ Changing Lenses ” , van Ness “ paradigm shift”
1990s:
Braithwaite – “ Reintegrative shaming ” , “ Responsive Regulation ” , “Republican Theory of Justice, Duff – “ Communicative theory ” , Daly “ Alternative punishment ” , Cragg “The Practice of Punishment”
2000s:
Moving away from the phase of innovation to the one of implementation - Mackay “Ethics and good restorative justice ”, Gavrielides “ Restorative Punishment ” , Johnstone – alternative model.
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How is it possible to proceed with a strategy on restorative justice if its relationship with the criminal justice system is not clarified and agreed?
Mainstreaming or living in a parallel universe?
Is it possible to improve the justice system if we are not in agreement on where restorative justice should fit? 7
A normative agreement is imperative
• Restorative justice makes normative promises in addition to its claims for empirical benefits (i.e. that it can guide our moral thinking vs. reduce reoffending).
• Restorative justice is morally problematic as it involves doing things to people that seem morally wrong. It is not a soft option – it can involve coercion in its restorative measures/ outcomes – “The burden of the restorative action” - processes (Walgrave).
• If restorative justice is to be taken forward by government, then a shared normative framework must be agreed.
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Restoring …
• Conflict as: • Crime - “a violation of the state, defined by lawbreaking and guilt ”?
• A “wound in human relationships” (Zehr) - violation of people and interpersonal relationships ”.
By restricting criminal procedure and law to the narrow legal definition of what is relevant and what is not, the victim and the offender cannot explore the real effects of the case and the degree of their culpability (Wright, Gavrielides). 9
Core theoretical assumptions for restorative justice – its philosophical foundation
• What created this relationship that RJ aims to restore other than the law? • RJ assumes the existence of a “social liaison” that bonds individuals in a relationship of respect for others ’ rights and freedoms. Victim & offender are seen as equal, free individuals. The offender is “one of us”.
• RJ assumes that this liaison has always been with us, because it is innate in our nature as human beings. 10
Core assumption
• “Interdependency”, determination and self-assurance is created through the realisation of the existence of others. This reality creates the social liaison, which connects individuals, • This is broken if a “crime” occurs.
• The “special relation”, between individuals and individuals and their community is the focus of restoration; with the RJ process we aim to mend it, and restore the relationship that was corrupted with the occurrence of “crime”. 11
Bringing it to today ’s reality
The realities of power structures & interest battles • Within the justice system • Within the restorative justice movement • Between parties • Between parties and practitioners 12
Time to reconcile
• Is it possible to reconcile without the need to: • Replace • Mainstream • Absorb?
• Using the Aristotelian concept of justice: The “lawful” (structured regulation) and the “fair” (value based) • Using ‘human rights’: the legal & the values 13
A consensual model for RJ
!
!
<""""""""#CONFLICT#""""""""">!
!
broken!
social!
liaison!
harm!
harmed!
parties!
Human!
rights!!
=!!
Values!
!
!
!
Community!*!bottom!up!&!
loose!mechanisms!*!power!
imbalances!
=!
"unstructured!restorative!
justice"!
Structured Restorative Justice
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!
!
!
!
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Unstructured Restorative Justice Gavrielides, T. and V. Artinopoulou (2013). Reconstructing the Restorative Justice Philosophy, Ashgate Publishing: Furnham, UK.
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From philosophy to policy: some tips!
• Mind the Gap! Mainstreaming a community born and community led ethos.
• Creating the infrastructure that will allow RJ to sit comfortably and equally next to imprisonment. • Mind the top-down structures of power and control through (register, accreditation).
• Respect the principles and maintain standards.
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Follow up
Gavrielides, T. (2014). “Reconciling the Concepts of Restorative Justice and Imprisonment ”. The Prison Journal
.
Gavrielides, T. and V. Artinopoulou (2013).
Reconstructing the Restorative Justice Philosophy
, Ashgate Publishing: Furnham, UK. Gavrielides, T. (2012)
Rights and Restoration within Youth Justice
, de Sitter Publications: Witby, ON.
Gavrielides, T. (2012).
Waves of Healing: Using Restorative with Street Group Violence
, IARS Publications: London.
Gavrielides, T. (2011).
Restorative Justice and the Secure Estate: Alternatives for Young People in Custody
, IARS Publications: London.
Gavrielides, T (2005) “Some meta-theoretical questions for restorative justice” Ratio Juris.
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Questions & Contact details
Dr. Theo Gavrielides Founder & Director, IARS 159 Clapham Road, London SW9 0PU, UK [email protected]
+44 (0) 20 7820 0945 www.iars.org.uk
Dr. Gavrielides is also a Visiting Professor at Buckinghamshire New University, a Visiting Professorial Research Fellow at Panteion University and a Visiting Senior Research Fellow at Open University.
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