Everything you always wanted to know about restorative justice

228 Pages·2009·1.65 MB·English

Department of Culture and Identity, Roskilde University
Everything you
always wanted to
know about
restorative justice*
Explained by
Jakob v. H. Holtermann
*
BUT WERE AFRAID TO ASK
Everything You Always Wanted to
Know About Restorative Justice*
(*But Were Afraid to Ask)

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

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Contents1

Prologue ................................................................................................................................. 1

Chapter 1: Introductory Remarks ................................................................................ 3
Chapter 2: Outlining the Shadow of the Axe – On Restorative

Justice and the Use of Trial and Punishment ............................................... 27
Chapter 3: The Hobgoblin of Little Minds – Restorative Justice

and the Law .............................................................................................................. 57
Chapter 4: Caring About “How the World Happens to Be” – Reply

to Davis ....................................................................................................................... 83
Chapter 5: A “Slice of Cheese” – A Deterrence-based Argument for

the International Criminal Court ................................................................... 107
Chapter 6: The End of ‘the End of Impunity’? – The International

Criminal Court and the Challenge from Truth Commissions ............... 143
Chapter 7: Philosophical Misconstruals in the Advocacy for

Restorative Justice ................................................................................................ 165

References ......................................................................................................................... 207

Index ................................................................................................................................... 217

Dansk resumé .................................................................................................................. 221

English abstract ............................................................................................................. 222

1 A PDF-version of this thesis is available for download and browsing at:
http://retsfilosofi.dk/restorative.pdf
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Prologue

Howard Zehr, the “grandfather of the restorative justice movement”,
visited Copenhagen in the fall of 2008. One night at the University of
Copenhagen by the end of a well-attended lecture, Zehr took stock of the
present state of the restorative justice movement. He described how,
back in the early days when the movement was still struggling to gain
foothold, overly enthusiastic advocates had perhaps gone too far in
painting a rosy picture of the potential of restorative justice.
Zehr stressed how things had now changed. As restorative justice
had increasingly gained influence on actual criminal justice systems
around the world, it had also matured considerably. Restorative justice
was now a responsible and self-critical movement. The days of telling
only “butterfly stories” of almost miraculous, mutual healing of victim
and offender were gone. Today, proponents were well aware of the
importance of telling also the “bullfrog stories” of restorative justice.
Stories of the conferences where everything goes wrong and all leave the
process being even worse off.
Around the audience, several of whom were declared supporters of
restorative justice, there were grave nods of approval. All seemed to be
aware indeed of the importance of remaining critical. Of not getting
carried away in blind support.
In the two talks I heard Zehr give during his stay, he did not tell one
bullfrog story.

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Chapter 1
Introductory Remarks

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

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

1 I have therefore not changed the papers substantially for this thesis. I have only
collected the references into one standardised reference list, unified the reference
style and added an index.
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Everything You Always Wanted to Know About Restorative Justice
true.2 And the title is supposed to reflect this fact. Instead of postulating
one uniting hypothesis and urge a classical “reading for the plot”, it is
meant to signal that this is a work that covers various aspects of the
same overarching subject, viz. restorative justice. Like the entries in
Doctor Reuben’s original3, each article can therefore be read and studied
independently of the other.
Even still, this is obviously not a comprehensive study. Since its
modern day revival in the 1970s and 1980s, restorative justice has
ramified wildly into a massive social movement that encompasses
worldwide initiatives involving responses to anything from school
bullying over ordinary crime in national jurisdictions to mass violence in
the shape of genocide, crimes against humanity and war crimes. Some
have even suggested a transformative conception of restorative justice
as a way of life that obliges us to “abolish the self … and instead
understand ourselves as inextricably connected to and identifiable with
other beings and the ‘external’ world.” (Johnstone & Van Ness 2007, p.
15) An exhaustive treatment of all of these aspects of restorative justice
would take more than one man and a few years and the result could
hardly be contained in a single volume.
Trusting, therefore, that the irony of the title carries through, this
thesis obviously does not contain everything the reader would like to
know about restorative justice. I have indeed done some weeding out.
First and foremost, this thesis is not about restorative justice as a way of
life, nor is it about conflict resolution in the schoolyard, at the workplace
or elsewhere. My focus is on restorative justice as it is used in relation to
crime, primarily in the context of domestic jurisdictions (cf. chapters 2-4
and 7) but also in the context of international crime (cf. chapters 5 and
6).
Taking this focus places me in a tradition that counts Nils Christie’s
seminal article “Conflicts as Property” (1977) and Howard Zehr’s
Changing lenses : a new focus for crime and justice (2005 [orig. 1990]) as

2 If so, this thesis would at least also have included an article on the Danish
caricature crisis (Holtermann & Nielsen 2006) and a chapter on Alf Ross’
epistemology (Holtermann 2006) from the anthology Alf Ross. Kritiske gensyn
(Holtermann & Ryberg 2006).
3 David Reuben’s taboo-breaking bestseller Everything You Always Wanted to Know
About Sex* (*But Were Afraid to Ask) was first published in 1969. It was loosely
adapted into a comedy film in 1972 by Woody Allen.
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Introductory Remarks
important theoretical starting points.4 Proponents in this tradition
generally share a widespread scepticism with regard to the traditional
criminal justice system and its preferred measures of trial and
punishment, and a corresponding enthusiasm for responses to crime
that involve, instead, the immediate stakeholders in deliberative
processes such as victim-offender mediation, conferences and circles.
Regardless of the nuances between them, these are all processes “where
the parties with a stake in a specific offence resolve collectively how to
deal with the aftermath of the offence and its implications for the
future.” (Marshall 2003, p. 28)
Even still, this loose agreement leaves much to be debated in the
advocacy for restorative criminal justice. In particular, it leaves
questions regarding the scope of restorative justice processes; questions
that in turn have led to heated definitional debates. One starting point
for these debates has been the growing awareness that not all crimes
lend themselves equally well to deliberative processes between
stakeholders. However successful the restorative justice movement,
there will inevitably be some cases that are unfit for such processes;
cases involving, for instance, openly uncooperative, hardened and
dangerous offenders.
This has led so-called purist proponents to stress the procedural
element as a sine qua non for criminal justice responses to be genuinely
restorative (cf. e.g. McCold 2000, 2004). Accordingly, such purists stick
close to the above words of Marshall as constituting the definition of
restorative justice. On this interpretation, restorative justice aligns itself
closely with the abolitionist view on punishment according to which any
use of coercive measures is morally unjustifiable.
However, other, so-called maximalist proponents assess that a
definition strictly in terms of process:

… leaves restorative justice advocates with nothing to say regarding the
way cases should be dealt with that – for whatever reason – do not lend
themselves to some form of informal offence resolution process.
(Dignan 2002, p. 175)

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