Abstract
What does it mean to be doing restorative justice in different criminal justice contexts? In order to answer this question, we must first reflect on the general terms of restorative justice that make comparisons possible. Comparative research often takes for granted the existence of a tangible object for empirical study. As a result, it tends to overlook deep theoretical issues that have not been resolved and which have consequences. This is problematic because a sound understanding of theoretical issues and their implications is ultimately fundamental to any comparative project. In this chapter, I embark on laying the necessary theoretical groundwork to enable meaningful comparisons of restorative justice. I do this by exploring two general terms that are common to restorative justice in the implementing environment of criminal justice: (1) a relationship to criminal justice; and (2) a relationship to moral psychology. I proceed by examining the dialectical relation between restorative justice and criminal justice and where restorative justice sits in the broader criminal justice field. I then turn to develop a more adequate account of the moral psychology of restorative justice than currently exists. What it means to do restorative justice in criminal justice requires a sufficient understanding of both of these core elements. The preparatory theoretical standpoints that I pursue in this chapter facilitate the advancement of important issues central to contemporary comparative restorative justice inquiry.
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Notes
- 1.
Though I acknowledge that restorative justice has been applied elsewhere, this chapter takes as its focus the conception and application of restorative justice as a response to wrongdoing. At first blush, it may appear that such a focus discounts the preventative aims of restorative justice. However, as we shall shortly see, my suggestions for the development of an adequate moral psychology of restorative justice are inherently preventative. The concepts I draw on to describe the phenomenology at play in working through violative identifications and restoring ethical relations actively promote human flourishing.
- 2.
Moral psychology is a naturalistic understanding in which the normative and the moral is linked with the psychology of human beings. This is often absent in moral philosophy and theories of punishment. While a moral psychology is present to some extent within restorative justice, this chapter is concerned with how adequate that is.
- 3.
- 4.
There are various ways in which people have tried to bring restorative and retributive justice together. For instance, Kathleen Daly (2000) maintains that the theoretical distinction between a restorative approach to wrongdoing and a retributive approach cannot be maintained either empirically or in practice. In an effort to reconcile restorative and retributive justice, Antony Duff (2002, 83) claims that ‘restoration is not only compatible with retribution and punishment, but requires it’. Leaving aside Daly and Duff being outliers, the point I want to make here is that their respective claims are grounded in the very difference that they wish to deny/downplay (Daly) or dissolve (Duff).
- 5.
Though a limited concept of guilt will appear in Braithwaite.
- 6.
I agree with Daly that ‘the restorative-retributive contrast stalled a more sophisticated conceptual development of restorative justice in its formative years’ (Daly, 2012), but whereas she looks to correct this deficit through an engagement with punishment, I pursue it through something more ethically promising: the moral truth of a deeper conception of guilt than we find in law.
- 7.
I acknowledge that shame is not universally accepted as the ethical lynchpin of restorative justice (see Maxwell & Morris, 2002; Morris, 2002; Van Stokkom, 2002; Nussbaum, 2004; Taylor, 2002). However, in the absence of a substantial alternative, it nonetheless remains a key foundational concept and its ubiquity does not appear to be waning (see Pemberton, 2019).
- 8.
For example, Braithwaite and Braithwaite (2001, 5) contend that shame and shaming are ‘indispensable’ to understanding restorative justice, but that restorative justice advocates would be advised not to ‘actually use the word shame as part of their reform rhetoric’. Instead, they argue that ‘responsibility and healing are likely to supply a more politically resonant, and a more prudent neo-liberal discourse than shame and reintegration’ (ibid). While these remarks might be seen as merely strategic, I suggest they reflect a much deeper problem with restorative justice theory, that its ethical-theoretical foundation in shame is inadequate.
- 9.
A shaming punishment is something designed to morally condemn a person through stigmatisation and/or humiliation. An old, familiar example is the stocks. A more recent example is forcing prisoners to wear orange jumpsuits. It is common ground between Nussbaum and Braithwaite that these primitive forms of shaming are problematic.
- 10.
Note, however, this reply also signals a subservience to a retributivist impulse.
- 11.
Quantum guilt is my own term, not Morris’s (see Wilson, 2021).
- 12.
For an interesting and suggestive view on pain drawing on the Greek concept of tragedy and restorative justice as catharsis, see Gavrielides (2013).
- 13.
I use the term psychosomatic here to refer to reaction in both mind and body.
- 14.
For a more detailed explanation of the links between quantum guilt and the quantum lexicon, see Wilson (2021).
- 15.
For a more developed discussion on the interplay between guilt and shame in metaphysical guilt, see Wilson (2021).
- 16.
This should not, however, be read as a merging of the concepts. I will return to this point later.
- 17.
There is not the space for me to elaborate the difference between primitive and mature shame as they relate to restorative justice here, however, the sort of shame that we see in quantum and metaphysical guilt is mature shame. Essentially mature shaming is directed at the self developing as an individual moral consciousness, whereas primitive shaming is a way of stripping the individual of feelings of self-worth. Reintegrative shaming suggests a commitment to mature shaming, but misses the connection between such shaming and deeper senses of guilt. For more, see Wilson (2020, forthcoming).
- 18.
As I have demonstrated, deeper conceptions of guilt give rise to what we might call remorse but the genesis of this is guilt. For this reason, I do not discuss remorse as a discrete category because I take it to be an element in or an expression of guilt.
- 19.
At first blush, the Shame-Guilt concept looks like it comes closer to a more substantial understanding of guilt, however, as we shall see, this is guilt that remains in the orbit of shame.
- 20.
Braithwaite’s (1989, 156) later suggestion that, in an applied context, reintegrative shaming would foster ‘blaming rituals, and rituals of repentance and forgiveness’ is similarly problematic for the reasons just described.
- 21.
Interestingly, Harris (2001b, 117) notes that this factor could have been called ‘Shame-Guilt-Remorse’.
- 22.
The reason Williams says this is so that we might arrive at a deeper understanding of ‘the connections between guilt and shame themselves’ (Williams, 1993, 92, emphasis added). Unlike Harris, he is not suggesting that the differences between guilt and shame are not important.
- 23.
For another version of this see Shaad Maruna (2001) who talks about loving the sinner but hating the sin.
- 24.
I see this as what Roy Bhaskar (2002) calls a compromise formation. Shame-centric theorists run shame as their master concept and therefore want to keep guilt at bay, but the reality of the phenomena in question forces guilt back into the picture. A compromise is needed in which theorists stay with shame but bring guilt in on the margin to buttress it against its inadequacy: hence Shame-Guilt.
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Wilson, A. (2021). General Terms of Comparison: Two Cores of the Restorative Justice Apple. In: Gavrielides, T. (eds) Comparative Restorative Justice. Springer, Cham. https://doi.org/10.1007/978-3-030-74874-6_3
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