The Hobgoblin of Little Minds – Restorative Justice and the Law
JAKOB VON HOLDERSTEIN HOLTERMANN
Abstract. One central though often overlooked argument in favour of restorative
justice is directed against the law as such which proponents of this new approach to
crime accuse of being an inapt and fundamentally unjust instrument for the
handling of crime. I examine two versions of this argument: i) that the law is an
arbitrary classification system which squeezes varied human behaviour into
universal categories; and ii) that the legal ideal of treating like cases alike holds no
independent value. I show that both arguments are misguided, and I conclude that
the anti-legal rhetoric should be moderated considerably if restorative justice is to
be a tenable theory.
KEYWORDS: restorative justice; law critique; rule of law; Braithwaite, J.; crime;
punishment
Formalism and rule-scepticism are the Scylla and Charybdis of juristic theory;
they are great exaggerations, salutary where they correct each other, and the
truth lies between them. (H.L.A. Hart, The Concept of Law)
1. Introduction
It is a widely shared notion that crime should be handled through a criminal trial
the goal of which is to determine guilt and mete out punishment to the offender.
The primary parties to the trial are the state and the offender, while the victim is
consigned to a role as witness contributing to the resolution of the case.
Over the last two or three decades this legal orthodoxy has, however, found a
remarkable challenger in the shape of an international movement in favour of
restorative justice. Besides a heavy impact on academic discourse restorative
justice has already reached a number of remarkable successes in terms of
converting theory into practice. From humble experimental beginnings in a few
jurisdictions in countries like Canada, New Zealand, and Australia in the 1970s and
-80s, a number of more or less permanent programmes have emerged in a long
line of Western countries. Furthermore, several third-world countries and aboriginal
cultures seem to have found in restorative justice an opportunity to revitalize
ancient traditions for conflict resolution which have been marginalized through
colonization and adaptation of the Western model for the rule of law.
So far, restorative justice has had the largest impact within the area of juvenile
delinquency (cf. Johnstone 2002, 15) but most proponents argue that it could and
should be spread out to all areas of criminal justice.
In the wake of its own success restorative justice has become such a widespread
movement that it is increasingly difficult to identify one single version that would be
1 of 20
The hobgoblin of little minds – Restorative justice and the law
acceptable to all its various proponents. However, some consensus seems to have
developed on the following general issues:
i)
ii)
iii)
crime is regarded as an activity which primarily harms individuals and
relationships rather than violates the law and the state;
perceptions on who is considered legitimate participants in the aftermath of
crime are revised: instead of placing the offender opposite a state
prosecutor and before a state authorized judge, it is advocated that the
immediate parties to the crime should participate in a mediation process
under the supervision of a mediator/facilitator 1 ;
the goal of the process is to achieve restoration of the relationships that
were harmed as a result of the crime rather than to determine guilt and
inflict punishment. Results can be, e.g., compensation, apology and
forgiveness.
A variety of arguments have been launched in favour of this way of handling crime.
Thus it has been claimed, for instance, that restorative justice is a more effective
means for reducing recidivism than traditional state punishment; that it is less
expensive; that it increases victim satisfaction, or that it is perceived as being more
procedurally fair by the offender (cf. Johnstone 2002, 21ff.).
Whether these claims are ultimately sustainable depends on complex empirical
issues which I will not address in this paper. Instead, I would like to focus on a
more principled argument in favour of restorative justice; an argument which is
often forgotten in the more empirical discussions but which, nonetheless, lies at the
very root of the theory of restorative justice.
This argument is directed against the law as such 2 which is criticized by many
restorative justice advocates for being an inapt and fundamentally unjust
instrument for the regulating and handling of the various kinds of behaviour we call
crime. The criminal law system is seen as rigid and formalistic in contrast with the
flexible and highly sensitive informal procedures of restorative justice processes.
Taking this line of argument, the campaign for restorative justice potentially
goes a lot further than mere penal reform. It attacks the very idea of building the
state on a foundation of law; the cornerstone in any rule of law. Or so it could
seem. Proponents of restorative justice have maintained, in reply, that fundamental
legal rights will remain completely intact in a restorative justice system, and
notably John Braithwaite has, in this connection, emphasized the need for
restorative justice to make some admissions to the rule of law. Characteristically,
however, this move has been coupled with a reluctance to spell out in any great
detail the precise content of this admission to the law. This restraint has had the
unfortunate consequence of leaving the overall implications for the theory of
restorative justice much in the dark.
Thus, besides examining the soundness of the various anti-legal arguments
propagated by proponents of restorative justice there remains the pertinent
assignment of unravelling the precise content and implications of these admissions
made to the rule of law, and, in particular, of considering the consistency between
the two. It is such an analysis that I offer in this paper. I show that the necessary
admissions to the rule of law go much deeper than what is commonly recognized.
On the only plausible reading they are of such a wide reaching and substantial
character as to make them ultimately incompatible with the harsh anti-legal
2 of 20
The hobgoblin of little minds – Restorative justice and the law
rhetoric continuously applied elsewhere in the arguments in favour of restorative
justice. Without substantial and unequivocal commitment to the law restorative
justice is an unconvincing theory of criminal justice.
The law critique has taken on different shapes in the writings of different
proponents of restorative justice. The paper starts off (in section 2) considering a
somewhat crude version which nevertheless finds some supporters in the literature.
According to this line of critique the central problem is that the law is an arbitrary
classification system; a critique which, in turn, can take on the shape of a more
general critique of rationality and of a more specific critique of the law as law. In
section 3 I consider a somewhat more promising version of the critique which finds
its major spokesman in the Australian criminologist John Braithwaite. Braithwaite’s
strategy is directed not so much against the possibility of regulating human
behaviour in a fairly accurate manner by the law. Instead, he argues that even if
possible it is not in the least attractive to make the attempt. Finally, in the
conclusion, I sum up my main points and suggest which direction discussions could
take next.
2. The law as an arbitrary classification system
As mentioned earlier restorative justice is, first and foremost, a claim about the
legitimate parties in the aftermath of a crime, and it is, in particular, an attack on
the thought of assigning in this connection a central role to the state. To many
proponents of restorative justice a crucial argument in favour of this point of view is
an all-out scepticism as regards the law and its modus operandi. Because the law is
the medium through which the state manifests and legitimizes its participation in
the criminal process, any defect of the law will strike this participation with equal
power. Thus, emphasis is repeatedly put on the alleged pointlessness of holding
people accountable to the abstract legal categories which are characterized as more
or less arbitrary boxes without any connection to reality. A paradigmatic example of
this attitude is found in the following description of the law by one of the theoretical
fathers of the movement, Nils Christie:
Training in law is a training in simplifications. It is a trained incapacity to look at all
values in a situation, and instead to select only the legally relevant ones, that is,
those defined by the high priests within the system to be the relevant ones.
(Christie 1981, 21)
A corresponding passage is found, for instance, in the writings of another central
figure of restorative justice, Howard Zehr:
Crime is a result of a legal system which makes arbitrary distinctions between
various harms and conflicts. It is an artificial construct which throws into one
basket a variety of unrelated behaviors and experiences. It separates them from
other harms and violations and thereby obscures the real meaning of the
experience. (Zehr 2005, 183)
In other words, the objection is that the law is an artificial classification system
which is fundamentally incapable of capturing infinitely complex and multi facetted
human behaviour. And in so far as this observation amounts to an argument in
3 of 20
The hobgoblin of little minds – Restorative justice and the law
favour of restorative justice we can infer, by way of contrast, that Christie and Zehr
believes that a free negotiation between the immediate stakeholders modus
restorative justice would fare better at capturing the essentials in any given case.
2.1. A rationality critique
How should this argument be understood more precisely? Why should the law, as a
matter of principle, be unsuited for the handling of its object? One possibility is to
read the argument as an instance of a more general rationality critique; a critique
which one could claim (perhaps uncharitably?) to find remnants of in these and like
passages in favour of restorative justice. The argument continues roughly along
these lines: any verbalization, any conceptual categorisation and classification
entails in and of itself a “violation” of the object in its infinite diversity and context
specificity. Thus, if we are to hope for truth at all, we should move, as it were,
behind language, behind our rationality, toward a more intuitive comprehension of
whatever is our object. And in the case of crime the restorative justice process
should be the means to bring us, thus, behind language to the event itself.
This interpretation of the critique of the law is supported by the slight taste of
“Fall of Man” which is a continual element in many advocates’ description of the
traditional Western legal system (cf. e.g. Christie 1977). It is, altogether, not a
completely unknown phenomenon in academic discourse to find rationality critique
linked closely to a more general critique of civilisation. And in the case of
restorative justice we surely find the last ingredient in the shape of recurrent
references to the originality of this model for the handling of conflicts. This
originality is often presented as an independent argument in favour of restorative
justice and against traditional state punishment (cf. e.g. Johnstone 2002, Ch. 3;
Braithwaite 2002b, Ch. 1).
This is not the version of the argument against the law which I find most
convincing. I will not, however, get any deeper into discussion of a law critique
which ultimately finds support in this kind of rather general philosophical views.
This will take us too far into the philosophy of language and epistemology if it is to
be done properly. Instead, I only say like Ramsey to Wittgenstein: “What can't be
said, can't be said, and it can't be whistled either.” If the truth is unobtainable in
principle through our rationality and language, I gather that there is nothing much
to be gained from putting our faith in some kind of mystical intuition. Transferred to
the handling of crime this means that if something (on these grounds) is unsayable
in principle by a judge, it cannot be said by the parties to the crime either.
2.2. The generality of the law vs. behaviour in context
The critique of the law presented by Zehr, Christie and others can, however, also
be read in a more concrete version. Instead of seeing the above passages as
instances of a very general rationality critique they can be interpreted as
underlining the specific epistemological problems that arise from classifying human
behaviour in abstract categories – and, markedly, to do this prospectively which is
the well-known condition of the law.
And this thought does have some sense to it after all. 3 Aristotle introduced a
distinction between theoretical wisdom (sophia) dealing with things that are
universal and necessary (Aristotle 1987, 1140b31) and practical wisdom
(phronesis) dealing with ever changeable human actions (Aristotle 1987, 1140b1).
4 of 20
The hobgoblin of little minds – Restorative justice and the law
And he stressed in this connection the particular epistemological problems that
emerge when we try to categorize beforehand infinitely varied human actions in an
abstract set of rules. 4 When we are to decide what we should do in specific cases
we cannot fall back on universal directions for action. We have to deliberate on the
basis of an individual assessment of the specific situation.
However, it is exactly this kind of individual assessment of each conflict which
seems to be made impossible by the rule of law when it insists on building the state
on a foundation of law. The commonly recognized principle of legality claims that
the law should be formulated in general terms and that it should be declared
beforehand. This seems to make it impossible to adjudicate according to the law
while at the same time acting phronetically.
In a more plausible version of the argument it is this principled impossibility
which proponents of restorative justice refer to, when they criticize the dependence
of the existing criminal system upon the law. This interpretation is supported, for
instance, by Zehr’s characterization of the contrast between the conceptions of
crime in traditional penal theory and restorative justice respectively: “Offense
defined in technical, legal terms, vs. offense understood in full context: moral,
social, economical, political” (Zehr 2005, 185, my emphasis).
As mentioned, this critique is more plausible. The problem is altogether wellknown. Thus, a classic and paradigmatic example of it is found in the writings of
Thomas Aquinas:
Suppose a siege, then a decree that the city gates are to be kept closed is a useful
general measure for the public safety. Yet say some citizens among the defenders
are being pursued by the enemy, the cost would be heavy were the gates not to be
opened to them. So opened they are to be, against the letter of the decree, in order
to defend that very common safety the ruling authority had in view. (Thomas 1964,
1a2æ. 96, 6)
While this passage does indeed provide a paradigmatic example of the problem
emphasized by many restorative justice proponents, it also points, somewhat
ironically, to the fundamental problem in making this an argument in favour of
restorative justice. Aquinas wrote Summa Theologiæ in the thirteenth century. And
he was preceded in turn by Aristotle by almost 1500 years in addressing the
problem. In other words, the difficulty inherent in regulating particularistic human
behaviour through universally formulated laws has not exactly remained
undiscovered throughout the years. On the contrary it has been at the very centre
of attention in philosophy of law at least since the days of Aristotle. And insofar as
proponents of restorative justice seem to claim the opposite by way of their critique
of the law, they arguably commit a straw man fallacy.
To the extent this straw man fallacy has actually remained largely undiscovered,
it is perhaps best explained as the result of a sort of curiosity in the history of
ideas: If one studies both traditional philosophy of law and philosophy of
punishment/criminology it is striking how limited any mutual discussion and
exchange of ideas between the two areas actually are. Simplifying somewhat, the
prominent questions in traditional philosophy of law are those of a more
epistemological bent connected, in the main, to determining the legal fact: which (if
any) sources of law can legitimately found legal decisions in concrete cases? Should
the judge, for instance, base his decision solely on positive law or is the ultimate
5 of 20
The hobgoblin of little minds – Restorative justice and the law
foundation rather a natural law which we all as rational creatures have access to?
In contrast, penal philosophical discussion seems entirely focused on determining
what should be the legal consequence, once the legal fact has been determined.
Should we punish out of concern for the future or only because the offender has
deserved it? Or should we, perhaps, abolish punishment entirely? The two
discussions seem to share in common, however, the attitude that what goes on in
one area has no direct implications for the goings on in the other. 5
While this may explain why proponents of restorative justice – working within
penal philosophical discourse where reflections on the nature of the law traditionally
play only a marginal role – have, as a matter of fact, been quite successful in
criticising the workings of the law in the traditional system, it does not, however,
serve to justify the argument per se.
The first problem with Christie’s and Zehr’s analysis of the workings of the law is
that it vastly exaggerates the magnitude of the problem. The categories of the law
may very well be universal and prospective but that does not mean that they are
deprived of any correspondence with reality, with our actual behaviour. This point is
expressed very convincingly by H.L.A. Hart in The Concept of Law:
If it were not possible to communicate general standards of conduct, which
multitudes of individuals could understand, without further direction, as requiring
from them certain conduct when occasion arose, nothing that we now recognize as
law could exist. Hence, the law must predominantly, but by no means exclusively
refer to classes of persons, and to classes of acts, things, and circumstances; and
its successful operation over vast areas of social life depends on a widely diffused
capacity to recognize particular acts, things, and circumstances as instances of the
general classifications which the law makes. (Hart 1994, 124)
The law actually does work, by and large, according to its intention, that is, as an
effective guide to action, and this is precisely because it does not, in the words of
Zehr “[throw] into one basket a variety of unrelated behaviours and experiences”.
On the contrary, the main rule appears to be that the law qua law actually covers
our ordinary behaviour quite well, and only occasionally gives rise to problems. This
conception gains support from Aristotle in the Nicomachean Ethics:
In those cases, then, in which it is necessary to speak universally, but not possible
to do so correctly, the law takes the usual case, though it is not ignorant of the
possibility of error. (Aristotle 1987, 1137b14-15, my emphasis)
The second problem with this kind of law critique is that not even this remaining
group of “problematic” behaviour which seems to be forgotten by the law, has been
left unnoticed in the philosophy of law. Not only have almost all significant
philosophers of law throughout history been more than willing to admit the
existence of human behaviour which is poorly captured in the legal web of universal
categories (cf. Aristotle and Hart). They have also developed highly sophisticated
theories of sources of law to manage successfully these kinds of human behaviour
in judicial practice. As a matter of fact this has arguably been one of the central
missions throughout the history of philosophy of law.
It is this entire theoretical discussion which proponents of restorative justice can
reasonably be accused of ignoring when they portray the judge as a kind of
6 of 20
The hobgoblin of little minds – Restorative justice and the law
mindless deduction machine that, armed with a set of rigid universal rules,
mechanically converts endlessly diverse human behaviour to neat legal categories.
Accommodating the proponents of restorative justice slightly, this image of the
judge does find some support in the more categorical versions of legal positivism
where law is identified narrowly with positive written law. For example, it could be
argued that positive written norms are the only legitimate sources of law according
to Hans Kelsen (1967). And this may not be entirely true.
As mentioned, most philosophers of law have, however, been well aware of the
problem regarding the limited reach of positive law. The common reaction has been
to expand the concept of law beyond written law. This leads, in the first instance, to
the introduction of precedent as a separate source of law – in Anglo-Saxon
jurisprudence commonly referred to as the stare decisis-doctrine. Besides written
law the judge should take into account earlier decisions by the courts which, due to
their specific character, can serve to nuance and supplement the general categories
of written law.
Adding precedent to the picture, however, still does not exhaust the field of
possible human behaviour. The law must, as Hart repeatedly put it, necessarily be
“open textured” (cf. Hart 1994, 124ff). Occasionally, we will inevitably be
confronted with cases in a grey area where neither written law nor precedent
uniquely determine a correct decision. According to Hart, the judge must exercise
her discretion to reach a decision. Subsequently, this decision can be added to the
existing legal corpus as a precedent thus exercising its influence on future decisions
in similar cases.
Hart is far from the only philosopher of law who has taken this problem into
consideration. Another example is Kelsen’s student Alf Ross, a central figure in
Scandinavian legal realism, who also emphasized the need to expand the concept
of the law. Thus, besides written law and precedent Ross included two sources of
law: i) custom, by which he referred to the fact that “legal rules, otherwise upheld,
are in certain situations not observed by larger or smaller portions of the population
but replaced by the customary rule” (Ross 1958, 95); and ii) the tradition of
culture:
Popular customs are not absolute and ultimate, but are themselves manifestations
of an even deeper source. In every people lives a common tradition of culture
which animates all manifest forms of the life of the people – its customs and its
legal, religious and social institutions. (Ross 1958, 97)
As a last example, Ronald Dworkin has addressed this problem in his critique of the
concept of law in legal positivism which he accuses of being too narrow. Thus, in his
famous paper “The Model of Rules I” (Dworkin 1977, orig. 1967) Dworkin draws
attention to the widespread practice of judges basing their decisions on nonpositivized legal principles whenever they find that positive law cuts reality too
coarsely. He illustrates this point with a court decision from a famous inheritance
case:
It is quite true that statutes regulating the making, proof and effect of wills, and
the devolution of property, if literally construed, and if their force and effect can in
no way and under no circumstances be controlled or modified, give this property to
the murderer. [But] all laws as well as contracts may be controlled in their
7 of 20
The hobgoblin of little minds – Restorative justice and the law
operation and effect by general, fundamental maxims of the common law. No one
shall be permitted to profit by his own fraud, or to take advantage of his own
wrong, or to found any claim upon his iniquity, or to acquire property by his own
crime. (Court decision quoted in Dworkin 1977, 23, my emphasis)
Other examples of the awareness within philosophy of law of the limitations of the
law and of steps taken to remedy this shortcoming could be mentioned. The above
suffice, however, to show that the image of the law upon which proponents of
restorative justice base their rejection of state punishment, has very little in
common with the highly sophisticated concept of law which has been developed
over the years within traditional philosophy of law.
Perhaps the real point made by proponents of restorative justice is that all these
attempts at sophisticating the law inevitably will fail. This, however, is a
controversial claim that needs to be grounded in solid arguments. It cannot be
launched as a mere truism. And until this is done, I, in contrast to Christie and
Zehr, see no reason why it should be impossible as a matter of principle for the
existing system to honour Aristotle’s old dictum: “And this is the nature of the
equitable, a correction of law where it is defective owing to its universality”
(Aristotle 1987, 1137b26-27). On the contrary, the existing legal system appears,
both in theory and practice (cf. Dworkin’s example of a court decision), to be fully
capable of comprehending the crime “in full context: moral, social, economical,
political” (cf. Zehr 2005, 185). 6
3 Equality before the law as a misconceived ideal
The critique of the law’s role in the handling of crime can, however, also be
expressed in a slightly different manner. Instead of basing the critique on the claim
that it is impossible to put complex human behaviour in universal legal boxes, one
can reject, outright, the value of making the attempt at all. Among proponents of
restorative justice this has been the strategy of John Braithwaite in particular, and
he is also the one who has put most effort into elaborating this line of thinking.
Thus I will restrict myself in the following to a discussion of his concrete arguments
in favour of this view. By way of introduction, however, one word of caution is
needed: Braithwaite may be the one who, to my knowledge, has been most careful
in working out this line of thinking. His writings, nevertheless, leave quite a few
questions open for further interpretation. Thus, the following is my reconstruction
of the reasoning underlying the claim.
3.1. From consistent to consensual justice
According to Braithwaite’s version of the critique of the law it could, perhaps, be
granted that the traditional legal system can develop or actually has developed a
relatively nuanced set of eyes for describing the criminal event itself reasonably
well. And if this is possible, it might also be possible even to mete out a
corresponding punishment. In other words, there are no principled reasons why it
should be impossible, within the traditional legal system, to honour the commonly
recognized principle in any rule of law of treating like cases alike. The only problem
is, however, that according to Braithwaite there is no independent value in doing
just this, simply because: “... equal punishment for equal wrongs is a travesty of
equal justice” (Braithwaite 2003, 395). Ultimately, the ideal of equality before the
8 of 20
The hobgoblin of little minds – Restorative justice and the law
law is an empty formalism, and the pursuit of it has no significance at all for justice
to be done in the aftermath of a crime.
From this perspective, the long lasting obsession in western rules of law with
equality before the law is precisely just that: an obsession. Or, in the pithy words of
Ralph Waldo Emerson: “A foolish consistency is the hobgoblin of little minds,
adored by little statesmen and philosophers and divines” (Emerson 1992, 138). The
question now is if anything other than the eloquence of this phrase speaks in favour
of Braithwaite’s seemingly radical point of view.
The first thing to notice is that this version of the law critique immediately seems
weaker than the one discussed above. After all, Zehr and Christie had the rhetorical
advantage of being able to admit (if only in pretence) a certain initial plausibility to
the ideal of equality before the law, and only to reject it after showing (allegedly)
the principled problems in converting this ideal to practice. Here, Braithwaite’s
strategy is much more radical. He flatly rejects that this commonly recognized ideal
should be the least bit attractive: “I am actually not in the least attracted to
evaluating criminal justice in terms of whether it dispenses more equal justice for
equal wrongs” (Braithwaite 2003, 394n25). This does, however, seem to place the
burden of proof heavily on Braithwaite’s shoulders. For the law critique to be
convincing, he will have to develop an attractive alternative concept of justice. He
cannot simply reject the one in existence.
And this is a “division of labour” which Braithwaite accepts – in the first instance
by stating more precisely his critique of the traditional ideal of criminal justice. For,
in spite of the harsh rhetoric, it is actually not the very thought of pursuing equality
which causes problems according to Braithwaite. Also in his version of restorative
justice, like cases should be treated alike. Controversy arise only when we specify
in which respect we speak thus of equality. And here, Braithwaite argues that we
should move the centre of attention away from the past criminal event and toward
the current “psychological set-up” of the case-parties.
According to Braithwaite the existing system implies a substantial differential
treatment when it comes to satisfying the wishes of the case parties in connection
with the aftermath of a crime. For instance, victims do not have equal opportunities
as regards satisfying their wishes in a court trial. As long as the typical outcome is
proportionate punishment, the vengeful victim will, other things equal, stand a
better chance of fulfilling her wishes than the forgiving victim wishing to grant
mercy to the offender. In restorative justice this inequality disappears:
In restorative justice processes, most victims who say they would like the grace of
forgiving their offender and helping them to get on with their lives are given just
that… (Braithwaite 2003, 393)
Correspondingly, the restorative process will give the offender who wishes to claim
responsibility for her actions and restore the damage done, an opportunity to do so.
Thus, in Braithwaite’s version the ideal of equality is reshaped into an ideal of
giving each party an equal opportunity to influence the outcome of the process
according to their wishes – which, on no account, should be confused with giving
any one party a unilateral right to force through her wishes:
With restorative justice, it is the collective wisdom of the stakeholders in the circle
that decides what is the agreement that is just in all the circumstances, not
9 of 20
The hobgoblin of little minds – Restorative justice and the law
perhaps the ideal agreement in the view of any one person in the circle, but one
that all in the circle can sign off on as contextually just. (Braithwaite 2002a, 158)
The contrast between this concept of justice and that of traditional penal philosophy
brings to mind the distinction between civil law and criminal law, and many
theorists have, in this connection, described the transition to restorative justice as a
move in direction of abandoning criminal law as a special legal area upholding its
own procedural rules.
In criminal cases it is the duty of the courts to find the truth of the matter
(Delmas-Marty and Spencer 2002, 636f). This basic duty makes it possible to
pursue the twin goals of the procedural rules of criminal law: to avoid judging the
innocent while simultaneously making sure that crime does not go unpunished. By
contrast, the purpose of the procedural rules of civil law is mainly to resolve
disputes between citizens. This shapes the way the civil courts work:
In the United States, just as on the Continent, the civil courts must work with what
they are given, and they must establish the factual basis of their judgments from
the materials the parties supply, and no others. … The court's task is to do, and be
seen to be doing, justice between the parties; it is not to ascertain some
independent truth.” (Kötz 2003, 67) 7
Correspondingly it is, according to Braithwaite, only the parties’ perception of what
has happened and of what should be done to restore it that is allowed a role in the
restorative justice process.
However, restorative justice actually takes one step further away than civil law
from any traditional concept of an objective truth. Even though the basis for the
court’s decision in a civil case is the material provided by the parties, we still need a
judge to adjudicate on these grounds. And in principle, this decision can overrule
one or both case parties. In restorative justice, on the contrary, the judge is done
away with completely. The state is only present in the shape of a facilitator who has
no authority to decide the conference outcome. This is left entirely to the case
parties themselves.
Braithwaite coins this version of the ideal of equality contextual justice while he
reserves the term consistent justice for the traditional version. In light of the above
considerations, however, this terminology is unfortunate. Context is a relative
concept. What is context is decided at any given time by what is “text”, that is, by
what is at the centre of attention in a specific situation. And the two concepts of
justice differ mainly in their point of view on what should be at the centre of our
attention in the aftermath of a crime. The traditional criminal legal system thinks
that the criminal event itself should take centre stage. Restorative justice assigns
this role to the parties’ perception of the event, and of what should be done to
restore the relations broken.
My point in part 2 above, however, has been to show that there is no reason in
principle why the traditional system should not also be capable of including, to a
great extent, the context in which the criminal event took place. This, of course, is
not to say that every single aspect of the event should be considered legally
relevant. Whether a person crossed a red light in a green or a blue car should be of
no importance in court. But the same goes for restorative justice. It is not each and
every aspect of the parties’ perception of the case that is allowed a role in
10 of 20
The hobgoblin of little minds – Restorative justice and the law
restorative justice. For instance, all the elements that the parties could not agree
upon will be ignored in the conference outcome if it is to be an agreement “that all
in the circle can sign off on”.
Against this discussion, it could of course be objected that the specific words are
of minor importance as long as we can all agree on their meaning in this context.
First, however, Braithwaite’s choice of words has the unfortunate consequence of
blurring the real distinction between the two concepts of justice. Second, it appears
to me that Braithwaite by choosing these words awards himself with an unfair
rhetorical advantage, this being so because the word contextual justice is hardly
value free (who would like to promote context-insensitive justice?). Instead of
contrasting consistent justice with contextual justice I, therefore, propose to speak
of (event-based) consistent justice versus (stakeholder perception-based)
consensual justice.
3.2 When collective wisdom is replaced by collective stupidity
The problem with Braithwaite’s transformation of the legal concept of material truth
into a pure consensual concept is, however, that it has unacceptable implications –
at least when taken at face value. A few examples illustrate how wrong things can
go if we abandon completely the concept of material truth in favour of pure
consensus between the parties. The first example is found in the vast world of
literature, the second in the equally vast real world and the third in my limited
imagination:
i)
ii)
iii)
The false confession: In Dostoevsky’s Crime and Punishment the painter
Mikolai falsely admits to have committed the murder of the money lender
and her sister, and he declares himself ready to receive whatever
punishment is meted out for him in response. Had sentencing circles been
around in the days of Dostoevsky, it is not impossible that relatives to the
victims could have agreed with Mikolai on this perception of events, and that
both parties would consequently have signed an appropriate restorative
agreement. As we all know, things did not work out quite that way, but this
was only because the detective Porfiry Petrovich insisted that there was a
“material truth” about the criminal event that had to be uncovered,
regardless of the parties’ own lack of interest therein.
The one party’s unreasonable perception: In the Danish so-called Rust-case
a bouncer at a nightclub shot and killed one person in self-defence when he
was attacked by a group of men. Relatives to the deceased apparently felt
that the bouncer should pay for his deed with his life. An imam tried to
appease the parties with a mediation proposal suggesting that the bouncer
should pay a compensation fee of DKK 200.000,- and in addition move out
of Copenhagen. This suggestion was made even though the public
investigator did not press charges because it was decided that the bouncer
had acted in legal self-defence as defined in Danish criminal law.
The outright crazy decision: Peter and I agree that only my immediate and
painful death can restore the loss he suffered when I stole his wallet. We
sign my death sentence in an act of complete harmony.
The question is how a proponent of restorative justice would handle examples like
these where a strictly consensual criterion of justice is honoured but where
11 of 20
The hobgoblin of little minds – Restorative justice and the law
Braithwaite's collective wisdom of the stakeholders has been replaced, undoubtedly,
by their equally collective stupidity.
One possibility is, of course, to maintain a complete scepticism regarding the
wisdom of anyone other than the parties themselves. This would amount to the
claim that the stakeholders are wise, so to speak, by definition, and that all
external interference is necessarily wrong. But this option seems downright absurd.
A theory of justice which condones perverted decisions of this kind will have a very
limited chance of gaining ground outside a narrow circle of dogmatic believers.
A more promising route would be to deny completely the relevance of these
examples for a discussion of the restorative concept of consensual justice. This, in
turn, could be done on two grounds. First, it could be argued that the cases are
irrelevant because they are artificial or, at best, highly exceptional. A claim which,
according to Braithwaite, is empirically well-supported:
[A]ll the evidence is that when courts overrule restorative justice conferences, it is
overwhelmingly to increase punishment, to trump the mercy victims have voted
for, and is rarely to reduce punitive excess successfully demanded by victims at
conferences. (Braithwaite 2003, 396)
While this observation may serve, as Braithwaite puts it, to keep the worry caused
by examples like the above “in empirical perspective” (Braithwaite 2003, 396), it
does not, however, rule them out entirely. First of all, because at least one of them
is found in the real world while another is found in Dostoevsky’s great novel the
fame of which indicates, other things being equal, that the psychological
mechanisms portrayed have not been found completely implausible. Secondly, a
dismissal on grounds of the artificiality of the examples is not open to Braithwaite in
particular. His (and Pettit’s) entire argument against utilitarianism is based upon
the claim that it will occasionally lead to the framing of the innocent, even if only in
highly artificial and exceptional cases (Braithwaite and Pettit 1990, 41ff;
Braithwaite 2003, 396).
Thus, it seems, after all, restorative justice will have to face the challenge to a
strictly consensual notion of justice posed by cases like the above. Braithwaite, on
his part, also recognizes this challenge acknowledging explicitly the need to set up
reliable safeguards against such nightmarish outcomes of pure consensual justice.
He even seems to find it so obvious that he sounds somewhat nettled that anyone
would suggest an interpretation of restorative justice which would condone
implications of this kind. According to Braithwaite every sensible proponent of
restorative justice has, on the contrary, had absolutely no doubt that some kind of
recourse to the law is necessary, for instance if it should be decided in a restorative
conference to punish more severely than a criminal court would have done in that
case:
Within the social movement for restorative
absolute consensus on one jurisprudential
processes should never exceed upper limits
for the criminal offence under consideration.
justice, there is and has always been
issue. This is that restorative justice
on punishment enforced by the courts
(Braithwaite 2002a, 150)
Fair enough. Let us not claim that Braithwaite actually condones absurd results like
the ones in the examples. Let us investigate, instead, if this recourse to the law in
12 of 20
The hobgoblin of little minds – Restorative justice and the law
order to avoid them is actually consistent (!) with his abovementioned flat rejection
of consistent justice and of “equal punishment for equal wrongs”. Let us investigate
if it is consistent with his corresponding celebration of consensual justice and the
collective wisdom and democratic creativity of the parties to the conflict (cf.
Braithwaite 1994, 203).
To do this we have to spell out initially in a little more detail exactly how
Braithwaite imagines this recourse to the law. He does this, as far as I can see, on
several levels. First of all, he does not deny completely the possibility of using a
traditional criminal trial in settling the question of guilt. To be sure, he emphasizes
it as one of the advantages of the restorative justice procedure, that it makes it
possible to sidestep troublesome legal procedure by introducing a more flexible
concept of guilt (cf., i.e., Braithwaite 1994, 205). But whenever there is the
slightest doubt as regards the question of guilt, Braithwaite seems to think that it
should be possible to try the case in court (Braithwaite 2003, 398). And in court a
decision will be reached in the traditional manner of criminal law which means
uncovering the truth of the matter instead of just leaving it to the parties to
“decide” what happened. This move should rule out or at least minimize the
number of cases like Mikolai’s false admission of guilt. 8
Second, Braithwaite insists, as already mentioned, that the agreement following
a restorative justice process should never be allowed to impose a harder
punishment on the offender than she would have had, had she gone to court (cf.
Braithwaite 2002a, 150f). 9 This should cancel out my other two examples. To
safeguard the legal rights of citizens we need “legally specific upper limits on
sanctions” (Braithwaite 2002a, 164). This is the only area in which Braithwaite
admits to be somewhat in agreement with retributivist theories of punishment. But
he firmly rejects their second central tenet: that we should have lower limits on
punishment proportionate with the crime.
The restorativist can argue that reliance that punishment will never exceed an
upper limit proportional to the seriousness of the offence is quite enough reliance.
Who wants the reliance of knowing that you are prevented from getting less than
this, or much less? (Braithwaite 2003, 394f)
However, Braithwaite not only seeks recourse to the law in order to avoid the most
absurd results of the voluntary agreements between the parties. He stands out
among proponents of restorative justice in his awareness of the problem that
voluntary agreements by way of restorative justice will not always be available.
One obvious possibility, for instance, is that the parties simply disagree on what
should be done to restore the inflicted harm. Another possibility is that the offender
refuses entirely to participate in a process with the victim – either because she
maintains her innocence or because she simply shows no interest in restoring the
harm inflicted on the victim (a possibility which is not too far fetched, after all,
considering the fact that she already at least once has shown herself willing to
wilfully inflict this harm to the victim).
If restorative justice is to provide a full-fledged alternative to traditional state
punishment it needs a strategy for the handling of cases like these, and
Braithwaite’s solution is to turn to the law also in these situations. This happens
within the general framework of so-called responsive regulation. By this concept
Braithwaite refers to a flexible strategy on behalf of the system adjusting its
13 of 20
The hobgoblin of little minds – Restorative justice and the law
reaction in accordance with the attitude shown by the offender with regard to
assuming responsibility for her actions and restoring the inflicted harm (Braithwaite
2002b, 29ff). The central thought is that the entire process should take place “in
the shadow of the axe” (Braithwaite 2002b, 36) which means that the alternative
awaiting the uncooperative offender should be a traditional criminal trial and
subsequent punishment. As Braithwaite remarks with welcome realism:
Very few criminals who participate in restorative justice processes would be sitting
in the room absent a certain amount of coercion. Without their detection and/or
arrest, without the specter of the alternative of a criminal trial, they simply would
not cooperate with a process that puts their behavior under public scrutiny. No
coercion, no restorative justice (in most cases). (Braithwaite 2002b, 34)
Apparently, the same strategy should be used in situations where the offender
either refuses to participate in the process because she maintains her innocence
regardless of the court’s decision (cf. Braithwaite 1994, 205) or cooperates to the
degree of participating in the process but she does not reach an agreement with
the victim regarding the outcome (cf. Braithwaite 1994, 207). 10
3.3 The travesty of equal justice revisited
Thus it actually looks as if Braithwaite has a reasonable strategy in order to avoid
the most unacceptable implications of the ideal of consensual justice. The only
problem is that this strategy turns out to presuppose the reintroduction of the very
ingredients he designed restorative justice in order to avoid: event-based
consistent justice and strong proportionality between crime and punishment.
Braithwaite, in other words, seems to end up in exactly that travesty of equal
justice which he set out to avoid.
That it comes to this is caused, first of all, by the fact that the entire innovative
force of restorative justice lies in the process where the parties meet each other
and in the guidelines developed for referring cases back and forth between the
established criminal law system and the system of restorative justice. How the
traditional legal system should treat cases once they end up on its desk, is,
however, a question for which Braithwaite provides no new answers. And it is
exactly cases of this sort we are considering here.
As Braithwaite correctly noticed the traditional system is first and foremost
occupied with consistency. Lawyers want to treat like cases alike. This is how the
rule of law works. Modifying Emerson slightly, consistency is the hobgoblin of the
little minds of the system. The first step in order to determine criminal guilt in a
court of law is always to find out what actually happened, that is, to uncover the
material truth of the matter. And then, all parties look “to the side”: it is considered
retrospectively how the criminal system has judged like cases in the past, and
prospectively if this or that decision can serve as a rule for future decisions in like
cases. Choosing any other strategy would equal abandoning precedent as a source
of law.
However, Braithwaite does not just reintroduce the concept of consistent justice.
In all those cases ending up in court he must, in addition, accept strong
proportionality between crime and punishment, that is, upper and lower limits on
punishment. How should we ever defend treating offenders differently when meting
out punishment, if the trial has shown that there is no relevant difference with
14 of 20
The hobgoblin of little minds – Restorative justice and the law
regard to the legal fact; that is, if we are dealing, legally speaking, with like cases?
Removing the lower limits on punishment made sense from the perspective of
restorative justice, only when the varying attitude of the victim still had a role to
play. But in the group of cases considered here the victim no longer plays a part –
either because i) the collective wisdom of the parties never showed up; ii) the
parties did not come to an agreement; iii) the offender maintained her innocence;
or iv) the offender refused to participate in a restorative justice process. Besides
the offender the state is the only party to a criminal trial and it simply makes no
sense to grant the judge or the prosecutor the same opportunity as the victim to
forgive every now and then; to let them “get, occasionally, the grace of mercy” (cf.
Braithwaite 2003, 391).
On the contrary, the state and the criminal courts can only justify differential
treatment when there is a legal difference between two cases. Of course,
Braithwaite can insist that there actually always is such a difference. But then we
appear to be back at the claim that two cases are never actually alike, which is why
we should start whistling instead of talking. I have already suggested why this is
not a tenable position. And, at any rate, this strategy does not go too well with
Braithwaite’s own position. First, because his initial argument against the law
precisely was not directed against the impossibility of judging like cases alike.
Second, because he insists, out of concern for general legal rights, that restorative
justice should take place within the overall framework of a rule of law. To avoid the
most extreme consequences of the collective stupidity of the parties, they should,
as he puts it, be “constrained by limits on punishments, rights, and rules that
define what is a crime and what is not” (Braithwaite 2003, 395, my emphasis). As
already mentioned rules are always made beforehand and they describe types or
classes of behaviour. Thus, a concept of crime which, like Braithwaite’s, is
ultimately founded in rules only makes sense if one acknowledges at least the
theoretical possibility of two cases being legally alike.
In other words, if Braithwaite is serious that we need safeguards against the
many pitfalls of a pure consensual justice, then he will have to admit that he is, to
some degree, ”attracted to evaluating criminal justice in terms of whether it
dispenses more equal justice for equal wrongs” (cf. Braithwaite 2003, 394n25). He
will have to acknowledge that the thought of judging like cases alike is not always a
travesty of equal justice (cf. Braithwaite 2003, 395). On the contrary, in a viable
restorative justice there is a time and place for event-based consistent justice and
strong proportionality between crime and punishment honouring both upper and
lower limits on the harshness of punishment.
4. Conclusion
In this paper I have considered one of the central premises in the argument in
favour of restorative justice: its law critique. Most proponents of restorative justice
are attracted to its informal consensual notion of justice because they remain highly
sceptical toward the general idea of handling crime by holding criminals responsible
before the law.
I have considered two central arguments for this scepticism: i) that it is
impossible to treat like cases alike because the law necessarily creates a rigid
system which squeezes complex and varied human behaviour into arbitrary and
artificial categories; and ii) that regardless of the feasibility of treating like cases
alike this project holds no independent value, the crucial part being not the criminal
15 of 20
The hobgoblin of little minds – Restorative justice and the law
event but the stakeholders’ various perceptions thereof and the eventual balancing
of these through a mutual agreement.
With regard to the first argument I have shown that it rests on a highly
distorted picture of the philosophy behind the traditional system. The alternative to
restorative justice is not necessarily a rigid rule-formalism with a concept of crime
which “is an artificial construct which throws into one basket a variety of unrelated
behaviors and experiences” (Zehr 2005, 183). On the contrary, virtually every
significant philosopher of law since Aristotle has been fully aware of the tension
between the universality of the law and the particularity of the criminal events. The
common reaction among these philosophers has been to develop highly
sophisticated theories of sources of law, thus reconciling the rule of law with the
development of fairly nuanced categories of human behaviour and a reasonable
amount of context sensitivity. Presenting the role of the law in the traditional
system as if it was utterly ignorant of these sophisticated theories reduces the
argument to a straw man fallacy, leaving the proposed dilemma a false one.
In the second half of the paper I have considered Braithwaite’s strategy: to
flatly deny any attraction of event-based consistent justice because a stakeholder
perception-based consensual justice fills all our needs. Though slightly more
promising this strategy is not viable either, simply because it does not deliver on its
promise. Unrestrained consensual justice is a nightmare of vigilantism and the only
credible safeguards against it come from the traditional system, viz. the very same
ingredients that Braithwaite strongly rejected as being not in the least attractive:
consistent justice and strong proportionality between crime and punishment; that is
punishment between upper and lower limits.
It should be emphasized that these considerations do not in themselves amount to
a flat rejection of restorative justice. But they do show that in one critical aspect
restorative justice is not the Egg of Columbus of juristic theory it is often claimed to
be. Restorative justice, too, will have to find a safe passage between the Scylla of
formalism and the Charybdis of rule-scepticism to use Harts words from the
introductory quote.
Perhaps proponents of restorative justice will claim that this is nothing more
than what they have been saying all the time. While this may be what they have
always meant, I am pretty convinced, however, that they have never put it quite
this way. In the writing on restorative justice I am familiar with, rhetoric on the role
of law in criminal justice remains harsh and irreconcilable and I believe I have
shown this in the selection of quotes used throughout this paper. This may have
been defensible as a rhetorical strategy in the 1970s and -80s when restorative
justice was still in its infancy struggling to gain foothold. But today things have
changed enormously. As T. Marshall has put it:
Restorative Justice, let no one doubt it, is well and truly on the map. I am both
amazed and gratified that this idea, after struggling to see the light for over a
decade, has finally emerged as a serious issue for all parts of the criminal justice
system. (Marshall quoted from Johnstone 2002, 16)
Thus time has run out for strategic assertions of an abysmal conflict between
restorative justice and the law. Only the truth counts now. And the truth is that
restorative justice needs the law; it needs consistent justice and strong
16 of 20
The hobgoblin of little minds – Restorative justice and the law
proportionality if it is to safeguard us against the obvious pitfalls of a pure
consensual notion of justice.
This means, first, that restorative justice will have to moderate its anti-legal
rhetoric considerably and, second, that it will have to develop clear principled
guidelines for handling all the many cases where consensual justice goes astray or
where it doesn’t even get off the ground. Only when this is done will we be able to
determine whether restorative justice with its strong emphasis on informal
procedures is ultimately reconcilable with fundamental guaranties of criminal
justice; that is, whether it, better than traditional criminal justice, provides a safe
passage between the Schylla of formalism and the Charybdis of rule-scepticism.
Danish Research Group for Criminal Justice Ethics
Dept. for Philosophy and Science Studies
Roskilde University
Universitetsvej 1, Postbox 260, 4000 Roskilde
Denmark
E-mail: [email protected]
17 of 20
The hobgoblin of little minds – Restorative justice and the law
References
Aristotle. 1987. Nichomachean Ethics. In A new Aristotle reader, edited by J. L.
Ackrill. Princeton, N.J.: Princeton University Press.
Braithwaite, John. 1994. Thinking Harder About Democratising Social Control. In
Family Conferencing and Juvenile Justice: The Way Forward or Misplaced
Optimism, edited by J. Alder and J. Wundersitz. Canberra: Australian
Institute of Criminology.
Braithwaite, John. 2002a. In search of restorative jurisprudence. In Restorative
Justice and the Law, edited by L. Walgrave. Devon, UK: Willan Publishing.
Braithwaite, John. 2002b. Restorative justice & responsive regulation, Studies in
crime and public policy. Oxford; New York: Oxford University Press.
Braithwaite, John. 2003. Holism, Justice, and Atonement. Utah Law Review 2003
(1):389-412.
Braithwaite, John, and Philip Pettit. 1990. Not just deserts : a republican theory of
criminal justice. Oxford: Oxford University Press.
Christie, Nils. 1977. Conflicts as Property. The British Journal of Criminology 17
(1):1-15.
Christie, Nils. 1981. Limits to pain. Oslo, Irvington-on-Hudson, N.Y.:
Universitetsforlaget; Distributed by Columbia University Press.
Delmas-Marty, Mireille, and John R. L. L. B. Spencer. 2002. European criminal
procedures, Cambridge studies in international and comparative law.
Cambridge: Cambridge University Press.
Duff, Antony. 2003. Restoration and Retribution. In Restorative justice and criminal
justice : competing or reconcilable paradigms?, edited by A. Von Hirsch.
Oxford; Portland, Or.: Hart.
Dworkin, Ronald. 1977. The Model of Rules I. In Taking rights seriously.
Cambridge: Harvard University Press. Original edition, 1967.
Emerson, Ralph Waldo. 1992. The selected writings of Ralph Waldo Emerson. Edited
by B. Atkinson. Modern Library ed. New York: Modern Library.
Friis Johansen, K. 1998. A history of ancient philosophy : from the beginnings to
Augustine. London; New York: Routledge.
Hart, H. L. A. 1994. The concept of law. 2nd ed. Oxford: Oxford University Press.
Holtermann, Jakob v. H. 2008. Outlining the shadow of the axe - on the use of
punishment in restorative justice. Work in progress.
Johnstone, Gerry. 2002. Restorative justice : ideas, values, debates. Cullompton,
Devon, UK; Portland, Or.: Willan Pub.
Kelsen, Hans. 1967. Pure theory of law. Berkeley: University of California Press.
Kötz, Hein. 2003. Civil justice systems in Europe and the United States. Duke
Journal of Comparative and International Law 13 (3):61-77.
Ross, Alf. 1958. On law and justice. London,: Stevens.
Thomas, Aquinas Saint. 1964. Summa Theologiæ. Latin text and English
translation, introductions, notes, appendices and glossaries. Edited by T. G.
e. al. 61 vols. London: Blackfriars in conjunction with Eyre & Spottiswoode.
Zehr, Howard. 2005. Changing lenses : a new focus for crime and justice. 3rd ed.
Scottdale, Pa.: Herald Press.
18 of 20
The hobgoblin of little minds – Restorative justice and the law
1
The “parties to the crime” are defined differently within different models for restorative justice. The
most basic model is so-called victim-offender reconciliation councils where only the victim and the
perpetrator meet. In a so-called family group conference the circle is expanded so as to include the
immediate family and relatives of the victim and perpetrator. Finally, the process can be expanded so as
to include representatives from the community in which case one speaks of sentencing circles (cf.
Johnstone 2002, 3).
2
The direct aim of this criticism is the criminal law but it strikes, if valid, at all law.
3
Even though one could wish that proponents of restorative justice were a little more patient in
spelling out this part of the argument. In the versions of the law critique that I am familiar with, this
argument is presented more like a truism than a controversial claim in need of heavy argumentative
support.
4
This is also the reason why Aristotle’s ethics does not, like e.g. Kant’s, become an ethics of rules
(Friis Johansen 1998, 383).
5
This kind of highly general claim is of course difficult to prove definitively. It is supported somewhat,
however, by the fact that, with the possible exception of Hart, very few significant theorists have made
lasting contributions within both fields.
6
Or, put more precisely: there is no principled reason to believe that the existing system should be
worse at including the moral, social, economical and political context than restorative justice. See below.
7
Admittedly, this distinction between civil and criminal procedure is less outspoken in countries in the
common law accusatorial tradition (like England) than in Continental countries adhering to the
inquisitorial tradition (like France and Germany). One should, however, be careful not to overstate the
significance of the difference between the two systems on this point: “Above all – and contrary to what
is sometimes heard – the two groups of systems [inquisitorial and adversarial] are united on what the
rules of evidence have as their essential aim. In every system this is the manifestation of the truth. …
[The] narrow preoccupation [of the common law] with the necessity for proving the facts alleged is only
a technique, the ultimate aim of which (as of every other element in English criminal procedure) is the
discovery of the truth.” (Delmas-Marty and Spencer 2002, 636f)
8
Actually, Braithwaite does not explicitly consider a situation like the one I imagine here using
Dostoevsky as my point of departure. In his discussion with Dolinko (Braithwaite 2003, 397) Braithwaite
does indeed consider a case where the accused falsely beliefs himself to be guilty. In this example,
however, the prosecutor is fully aware that the accused did not do it; that is, she acts in bad faith and
the discussion is thus about the conscious framing of the innocent. But the point of my example is
different. Other things being equal, in a system which professes a strict consensus criterion of justice the
risk of unconsciously judging the innocent is increased compared with a system where the prosecution
has an independent duty to uncover the material truth of the matter. The question is how one would
avoid situations like the one I describe in this scenario.
The problem is not bigger, however, than that Braithwaite could argue along the same lines as he did
in the discussion with Dolinko: He could claim that the citizens’ subjective feeling of dominion would be
diminished if “word got out” that the system did not by itself try to discover the material truth in criminal
cases. And for this reason criminal law and court proceedings should not only be introduced in situations
where there is immediate doubt as to the question of guilt, but should be used in all situations to
determine guilt beforehand. Whether this recourse to the law is coherent, more generally, with
Braithwaite’s critique of consistent justice, is an open question to which I shall return below.
9
Here it might be objected that the outcome of a restorative process will never be punishment
because the very purpose of the exercise is to restore the inflicted harm, not to punish the offender.
However, as both Duff (2003, 53f), Johnstone (2002, 31) and Braithwaite himself (2002a, 150) have
emphasized, it is always possible that the restorative justice process will inflict hard treatment which is
indistinguishable in principle from punishment.
10
The reservation is made because this strategy seems to pose a substantial challenge to restorative
justice: As I show below, the only just result of a traditional trial in such a case will be punishment which
is proportionate with the crime in the strong retributivist sense of the word; that is, a punishment
between both upper and lower limits for this sort of crime. To a restorative justice proponent like
Braithwaite, however, it appears that any move upwards towards the upper limit of the law can be
justified only if it is the result of an agreement between the parties or if it is a response to a lack of will
to cooperate on behalf of the offender. This is the core reasoning behind responsive regulation.
However, neither of these situations appears to be relevant here. Or at least they do not have to be,
and how should we tell the difference in practice? To maintain one’s innocence can hardly be called lack
19 of 20
The hobgoblin of little minds – Restorative justice and the law
of will to cooperate unless we rest assured completely in our judgmental infallibility that we can
determine when such a claim is honest and when it is not. And the same goes for the offender who does
not reach an agreement on an appropriate outcome with her victim – unless of course we assume the
unreasonable position that any disagreement is a sign of a lack of will to cooperate on behalf of the
offender. As we all know, it takes two to tango, and it is definitely possible to imagine a case where a
remorseful offender with her mind set to restore values fully meets a revengeful victim that stubbornly
rejects any other outcome than the one that equals the hardest punishment available under law.
If disagreement automatically refers the case to traditional criminal court it appears that the vengeful
victim de facto gets dictatorial powers to decide the case her way. Arguably, this seems to put a bomb
under the entire idea of restorative justice. In (Holtermann 2008) I discuss this problem in greater
detail.
20 of 20