Text of an Inaugural Lecture given at The Middleton Hall, University of Hull, on 11th October, 2004 by Gerry
Johnstone, Professor of Law (j.g.johnstone@hull.ac.uk).
The Idea of Restorative Justice
GERRY JOHNSTONE1
Introduction
When a crime occurs in contemporary society we suppose certain things will happen:

We expect the state authorities to take charge of the process of dispensing justice.

We assume that, if possible, the perpetrator will be tried in a law court.

We expect that if the accused person is found guilty, their fate will also be determined in a court by a
judge or magistrate.

We presume that the offender will be subjected to some form of punishment.
These assumptions structure our thinking about criminal justice. Although there is much debate about the
precise form which criminal justice should take, and about how its interventions can be justified, such debate
tends to take place amongst people who share these basic assumptions.
Since the 1970s, however, some criminal justice practitioners have been experimenting with new ways
of intervening in the aftermath of a crime, in which some – and perhaps even all – of these basic assumptions
seem to be rejected. In particular, in these experiments:

Key decisions on what to do about a crime are usually made outside of court by small groups of
ordinary citizens, including the victim and offender.

The focus is less on punishing offenders, more on persuading or obligating offenders to repair the
harm they have caused through their criminal act.
In addition, in some of these experiments, practitioners prefer to bypass the process of legal trial and
conviction altogether if the perpetrator informally admits involvement in the crime. In a small number of these
experiments, practitioners prefer the entire process to take place without state involvement.
1
Inaugural lecture, University of Hull, 11th October 2004.
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Those involved in promoting and practising these new ways of dealing with crime have come to call
them, collectively, ‘restorative justice’. In the last decade, restorative justice has been taken up by thousands of
practitioners and policy-makers around the world, as an alternative to what they regard as the futile and
destructive practice of judicial punishment. Governments, including the UK government, are even talking of
maximising the use of restorative justice in the criminal justice system.2 Indeed, major projects are now
underway to extend restorative justice to the handling of other forms of troublesome behaviour and conflict, in
settings such as schools and workplaces.
Restorative justice, accordingly, is becoming a major topic in academic and public debate about the
future of criminal justice. This lecture is about the terms in which restorative justice has been presented and
understood in such debate. Many proponents of restorative justice, I suggest, are inclined to present it as a new
‘technique’ for dealing with offenders. They have tended to claim that this new technique outperforms
conventional penal and therapeutic methods of intervention in preventing reoffending and producing victim
satisfaction with the criminal justice system. Considerable effort has been put into evaluative research which
lends support to these claims. This way of presenting restorative justice has resulted in considerable political
success, in that governments have been persuaded that restorative interventions should play a central role in
criminal justice systems. Although some commentators have raised concerns about what they see as a lack of
safeguards for suspects and offenders in restorative justice, such concerns have done little to dent the growing
enthusiasm amongst politicians and policy-makers for this new way of doing justice.
In this lecture I will argue that, although it has led to ‘political success’, presenting restorative justice
as technique for preventing reoffending and generating victim satisfaction has undermined the chances of the
restorative justice movement achieving its more important and interesting goals. I will show that restorative
justice has the potential to disturb taken-for-granted assumptions about crime and justice. What restorative
justice has to say about the meaning of crime and justice is of huge importance and interest, even though some
of it is quite problematic. However, what it has to say is likely to be unheard in public debate, which is
revolving around a very narrow understanding of restorative justice and an increasingly limited set of
questions.
2
Home Office, Restorative Justice: the Government’s Strategy (Home Office Communication Directorate, 2003)
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As groundwork for this argument, is it is necessary to provide a brief description of the most common
forms of restorative justice practice and an indication of their rationales.
Restorative Justice Practices and their Rationales
The three most common practices that have attracted the label ‘restorative justice’ are Victim-Offender
Mediation, Family Group Conferencing, and Circles.
Victim-Offender Mediation
The process of victim-offender mediation has been used in North America and Europe since the 1970s.3 It
offers victims of crime an opportunity to meet in a safe setting with the person who has harmed them. The
meeting is organised and structured by one or two trained mediators. Mediators allow and encourage victims to
tell offenders about how the offence affected their lives and to ask offenders questions which victims often
have, such as why they were target of an offence. Victims are also able to take part in developing a restitution
or reparation plan, that is, a plan of action which the offender should undertake to help repair the damage they
have caused and to reassure the victim that no further offences will be committed against them. Offenders are
given the opportunity to account for their behaviour, to tell their story and to contribute to the construction of
an action plan for repairing the harm they have caused.
According to its advocates, victim-offender mediation has numerous beneficial outcomes. In
particular, it helps victims recover from a traumatic experience. Victim recovery is fostered in a number of
ways.

First, because victims directly participate in the decision about what will be done to repair the harm
resulting from the offence, there is a strong chance that the victim’s actual needs for reparation will be
met.
For more detailed descriptions of these practices see Bazemore, G. And Umbreit, M., ‘A Comparison of Four
Restorative Conferencing Models’, pp. 225-43 in G. Johnstone (ed.) A Restorative Justice Reader: Texts, Sources,
Context (Cullompton, Devon: Willan Publishing, 2003).
3
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
Secondly, the very process of having a say in what happens about the offence promotes victim
recovery. The thinking behind this claim is that one of the reasons why being a crime victim is so
traumatic is that it robs them of their sense of autonomy and control over their own lives; by being
empowered in the process by which the offence is dealt with, victims can regain a sense of autonomy
and personal power.

Third, meeting with the offender and being able to discuss the offence with them and reach an
agreement on what should be done about it brings a sense of closure to victims which they do not
obtain when their case is dealt with through more conventional criminal justice procedures.
Advocates of this process argue that it also has benefits for offenders. It enables them to learn about the
real impact of their behaviour on fellow citizens, a learning process which can be painful but is ultimately
beneficial. Also, by giving offenders an opportunity to participate actively in deciding what should be done to
repair the harm they have caused, and to undertake reparative acts voluntarily, the process enables offenders to
redeem themselves. Additionally, it enhances their chances of being accepted back into the community from
which they have become separated as a result of their criminal behaviour.
The process of victim-offender mediation can occur at any stage of a criminal justice process. It is often
triggered by cases being referred to it by agencies in the conventional criminal justice process as part of some
diversion scheme. For instance, the police might offer victims and offenders the option of victim-offender
mediation as an alternative to sending a person who has admitted involvement in an offence to court.
Alternatively, it can be integrated with conventional forms of case ‘disposal’, e.g. a magistrate or judge might
suggest that victim-offender mediation occur as part of a probation order. Or, it can take place alongside and in
addition to conventional processes, e.g. offenders serving prison sentences might take part in victim-offender
mediation prior to being released.
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Family Group Conferencing
A second form of restorative justice practice is family group conferencing. This was introduced into the youth
justice system in New Zealand in the 1980s as a form of pre-trial diversion from the conventional criminal
justice process. It is purportedly based upon the dispute resolution traditions of the Maori. It was introduced, in
a slightly different form, into the criminal justice system in Australia in the early 1990s and from there spread
to the United States, the United Kingdom and elsewhere.
Conferencing is similar in many respects to victim offender mediation. In conferencing, however the
number of participants is extended to include family members or supporters of victims, and family members
and community contacts of offenders where they are interested in supporting the offender’s reparative efforts.
The term mediator tends to be replaced by ‘facilitator’. And, there is a greater emphasis in family group
conferencing on construction of an action plan which will help the offender – quite often a young offender –
not only to repair the damage caused by the crime but also change their way of life so that they have less
chance of reoffending.
In some places, family group conferencing is heavily influenced by John Braithwaite’s theory of
reintegrative shaming. Consequently, facilitators of family group conferences attempt to steer the interaction
between participants in such a way that strong disapproval of the offender’s behaviour is expressed, but in a
context of respect for the offender as a person and followed by gestures of care and love for the offender.
According to Braithwaite, who is amongst the most theoretically sophisticated promoters of restorative justice,
such a process works extremely well as a form of social control. It puts crime off the ‘menu’ for most people,
without subjecting them to any of the harsh, exclusive, punitive measures we currently rely upon to deter
would-be offenders. Through this link with Braithwaite’s theory of reintegrative shaming, restorative justice
has also become associated with broader communitarian and republican theories of justice.
Circles
A third form of restorative justice practice is the sentencing or peacemaking circle. Based upon the traditional
sanctioning and healing practices of aboriginal people in North America, they were re-introduced in various
aboriginal communities in the 1990s, usually at the sentencing stage of the criminal justice process.
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In circles, the number of participants tends to be much larger than in a family group conference, as
many community residents and justice and social service personnel also take part. There is usually some way
of ensuring that everybody who wishes to speak gets at least one chance to do so. For example, participants sit
in a circle and are encouraged to speak only when they hold a ‘talking piece’, which is some object passed
around the circle.
The process is often referred to as circle sentencing, since one of its functions is to enable the
community to recommend a sentence to the judge. However, circles have broader functions. For instance, their
role is often said to be that of teaching people – through respectful dialogue - about the right way to behave,
rather than punishing them for misbehaving. They are also regarded as processes which promote healing, in the
sense of reconnecting people with their community and hence with their true selves. Accordingly, discussion
tends to be about much broader issues than what sentence the offender should receive. For instance, it often
includes discussion of matters such as: why people are engaging in the sort of behaviour (such as glue-sniffing
or sexual abuse) which the has led to the court case; what such behaviour is doing to the community; and what
the community can and should do to help solve these social problems. So, as well as recommending a
sentence, the circle will also come up with a broader plan of community action to tackle some problem which
is perceived as debilitating the community.
Circles, then, are often promoted, not simply as a better way of dealing with individual criminal cases,
but as a means of rebuilding a sense of community and using the community to resolve conflicts and tackle
underlying social problems. Hence, the notion of restorative justice becomes linked with broader themes of
community regeneration. The idea is that by tackling their own problems, communities become stronger, and
as they become stronger, their capacity to deal with their own problems increases.
A related, but less well-known, form of restorative justice practice is the circle of support and
accountability. In these, community members form support groups around feared ex-prisoners, in particular
sex offenders. The circle both supports the ex-offender in their efforts to be law-abiding and informally
monitors their behaviour. The basic principle of this form of intervention is that the ex-offenders should be
allowed to live safely in the community, whilst the community should also be allowed to live safely with the
ex-offender in their midst.
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Promoting ‘RJ’ in Public and Political Debate
As we have seen, the concept of restorative justice refers to a diverse range of practices, which are
underpinned by an even more diverse and complex blend of ideas, values, and theories. However, when it
comes to promoting restorative justice in public and political debate, there is a tendency to present a rather
simpler image of restorative justice and to sell it in terms of its potential to achieve a small number of clear and
measurable goals.
The simplification of restorative justice often begins, unconsciously, by replacing this somewhat
intriguing term with a compact acronym: restorative justice becomes RJ. RJ is often presented as an
intervention which brings victims and offenders together. This, it is pointed out, enables victims to get answers
to their questions and to tell offenders what the real impact of their behaviour was. Hence, it is argued,
offenders come to ‘really understand’ how their behaviour has affected other people – people who are just like
them. The process also gives offenders the opportunity to make amends to their victims and to the wider
community.
Such a process, it is claimed, achieves important goals. It is often a turning point for offenders that
puts them back on the straight and narrow.4 It also increases victim satisfaction with the criminal justice
service.
An important feature of such claims is that they can, in principle, be tested through empirical research.
Although the methodological problems involved in doing so are immense, with sufficient research and
methodological sophistication it should be possible to establish whether restorative interventions do in fact
outperform more conventional criminal justice interventions in preventing reoffending and producing victim
satisfaction.
4
See Home Office, Restorative Justice: The Government’s Strategy, p. 4.
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Accordingly, RJ proponents have not only welcomed, but positively encouraged scientific evaluations
of the process, in order to determine whether it works, and if it does under what conditions and in what types
of case it works best. Of course, in reality, evaluating RJ is not so straightforward. The results of any particular
evaluation are always going to be provisional and capable of being interpreted and explained in a number of
ways. Hence, scientific evaluations never definitively prove the case for or against RJ. However, they do
provide enough evidence for proponents to be able to claim that the results look promising. Hence, RJ
proponents tend to argue that there is scientific support for the claim that restorative justice seems to have lots
of beneficial effects and seldom performs worse than more conventional criminal justice interventions.
It should be noted here that by putting forward testable claims and calling for government sponsored
research to test those claims, the restorative justice movement contributes to its own growth. In order to obtain
the data required to test fully the claims of RJ, it would be necessary to construct numerous large scale and
long-term experiments in the use of restorative justice. However, once there has been a significant investment
of public funds in RJ, it tends to gather its own momentum. It is not only that the more that it is spent on it, the
more desire there is to make it work and to interpret it as working. In addition, more and more people in
criminal justice and other services have their jobs defined as managing, or practising within, RJ programmes.
As such, accredited courses in RJ spring up and more and people become trained in the delivery of RJ. As
these positions become established and professionalized, the emphasis shifts delicately but definitely. Instead
of needing evidence that RJ works in order to further develop it, one would need clear and plentiful evidence
of positive failure or worse in order to abandon this social experiment.
The restorative justice movement, then, has been tremendously astute politically. Whatever
proponents of restorative justice say and think amongst themselves, they have been well aware of the need to
talk the language of governments and the public if they are to get the political and public support necessary to
introduce what they see as a quite radical shift in the way we do criminal justice. The restorative justice
movement answers the questions that governments and the public want answered and does so in very positive
terms. Does RJ prevent offending – yes. Does it help victims – yes.
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But, of course, in the managerial politics of today, simple assertions will never do. Policy must be
evidence-based. Services which require public funding must be able to demonstrate that they achieve clearly
defined and measurable goals and that they represent value for money. Proponents of restorative justice have
been keenly aware of this and hence have succeeded, in a very short period, in transforming a few scattered
experimental projects into something which governments are willing to invest in and consider seriously as a
mainstream response to crime.
Retrieving a lost discussion
I have suggested that restorative justice proponents have been politically smart in presenting the concept, and
the case for it, in terms that governments and the public can identify with. By adopting such a strategy,
promoters of restorative justice have ensured that the practices of restorative justice move from the margins
towards the mainstream of criminal justice. I now want to suggest that this success has been bought at a very
high price. I argue that, by encouraging policy-makers and the public to think of restorative justice as a
technique for preventing re-offending and providing victim satisfaction, the restorative justice movement
actually obscures what it is that really distinguishes restorative justice from more conventional ways of
handling crime. By doing this, the restorative justice movement makes it less likely that it will achieve its
broader and more important goals. To introduce this argument, I will look briefly at the way one early
exponent of restorative justice envisaged the phenomenon.
One of the founders of the restorative justice movement is an American academic-activist called
Howard Zehr. When Zehr came across early experiments with victim-offender mediation, he was certainly
attracted by what he saw as it potential to improve the attitudes and behaviour of offenders. He was also
fascinated by the potential of this process to promote victim recovery from what was often a very harmful
experience - an experience which, when the offence was dealt with in the conventional way, often left victims
permanently damaged. However, Zehr did not regard these experiments as being merely about some new
technique which happened to have beneficial effects. Rather, he perceived that that the practice of victimoffender mediation embodies certain definitions, assumptions and values which were quite contrary to those
embodied in more conventional punitive interventions.
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Accordingly, in his book Changing Lenses,5 Zehr used practical experiments in victim-offender
mediation as a springboard for a much broader and deeper investigation into thinking about crime and justice.
In this investigation, Zehr bemoaned the malfunctions which other commentators of criminal justice have
brought to public attention. These malfunctions include massive increases in the numbers of people
incarcerated and subjected to state control and the treatment of many of these people in ways that defy
common decency. Yet, this drift towards ‘tough justice’ does nothing to cure social ills such as fear of crime,
drug abuse and shattered communities. What was distinctive about the writings of Zehr and other early
exponents of restorative justice was that they attributed these malfunctions, not to some recent shift in social
conditions or policy, but to the definitions and assumptions which have governed thinking about crime and
justice in the West for several centuries. What we are witnessing according to Zehr is the final breakdown of
our deeply flawed paradigm – or pattern of thinking – about crime and justice.
Zehr glimpsed in experiments such as those with victim-offender mediation the possibility of a new
paradigm – a completely different pattern of thinking about crime and justice. He was clear that many years of
sustained conceptual work and practical experimentation would be required before a new paradigm could be
assembled. In particular, practical experiments in restorative justice would need to be accompanied by wide
ranging scholarly searches for alternative ways of envisaging crime and justice. Indeed, under the influence of
Zehr’s work, restorative justice scholars have attempted to bring to light the rather different ways of
understanding crime and justice that can be found in, or reconstructed from, sources such as the Bible and
other major spiritual traditions, ancient historical customs, the teaching and rituals of various aboriginal
peoples, as well as contemporary social and legal experiments.
The products of these inquiries are of enormous interest and importance. Yet, little if any of it is likely
to be registered in public debate about restorative justice. That debate is revolving, and is increasingly likely to
revolve, around a very narrow understanding of restorative justice as a mere technique.
5
H. Zehr, Changing Lenses: A New Focus for Crime and Justice (Scottdale, PA: Herald Press, 1990).
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In the remainder of this lecture, I want to provide just a brief indication of the sorts of implications
this broader and deeper reading of restorative justice practices might have for our thinking about crime and
justice. I will do this by drawing out some of the ways in which restorative justice practices might disturb
taken-for-granted assumptions about such fundamental matters as:

what crime means;

what it means to be a victim of crime;

what it means to do justice in the aftermath of a crime;

whose obligation it is to deliver justice;

how society should relate to those who break its fundamental rules;

the sorts of values that should guide, and be reflected in, our handling of crime.
Whilst much of my analysis is drawn from the writing of restorative justice exponents such as Zehr, it should
be made clear that my understanding of the implications of restorative justice probably departs in many ways
from theirs, as does my stance towards it.
Restorative Understandings of Crime and Justice
The meaning of crime
Our legal and penal institutions encourage us to see crime in a particular way. We tend to regard crime as a
wrong committed against an abstract entity such as the state or society or the crown. There is, of course, a logic
to this. The state lays down certain laws which basically say this is the bottom line of what we – as a society will allow: we will not permit people to hit others, dishonestly appropriate their property, have sex with them
without their consent, and so on. Crime is behaviour which infringes these rules. And, since the rules are made
by the state on behalf of society, we tend to define crime as a wrong committed against the state or society.
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However, we have become so used to constructing crime in this way that we often forget that there are
other dimensions to crime. If we look at it from different perspectives, we see important facets of it which are
hidden or obscured by our legalistic gaze. Restorative justice brings some of these other facets of crime to the
forefront, and hence disturbs our conventional way of seeing it. Perhaps in order to grasp this point we might
imagine crime as a pyramid. We have been so used to seeing this pyramid from one point of view, that we
begin to define crime as what we see from this point of view. Restorative justice rotates the pyramid around a
little, so that we begin to realize that there are facets of crime which were obviously there all the time, but
which we have not included in our definition.
What are these hidden aspects of crime which restorative justice brings into focus.
In the practice of restorative justice, crime is constructed less as lawbreaking and a wrong against society,
more as a violation of a clearly defined set of people and relationships. In fact, in restorative justice, a lot of
effort is put into getting the offender to see that what they have done is wrong, not simply or even mainly
because it is a breach of society’s rules, but because it causes enormous harm to real human beings whom they
can personally meet. Moreover, attempts are made to get offenders to understand that the damage caused by
their behaviour extends far beyond the material damage of the destroyed property or broken limb, important as
that damage is. The offender is asked to see that in regarding the satisfaction of their desires and whims as
more important than respecting the rights of others, they have disturbed the right relationship between people.
According to some proponents of restorative justice, it is this destruction of right relationships which
constitutes the essence of crime.
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What it means to be a victim of crime
We have already seen that restorative justice challenges our assumptions about who or what is the victim of
crime. In conventional criminal justice the victim is an abstract entity: society, or the state, or the people or the
crown. Hence, criminal law books often state that one of the key distinctive features of criminal law, compared
with private or civil law, is that it redresses wrongs committed against society, whereas private law redresses
wrongs committed against individuals. Restorative justice puts this platitude in question. It draws attention to
the fact that the victim of crime is the person – or persons - directly harmed by the offence, with members of
that person’s community being secondary victims. Whilst restorative justice proponents acknowledge that the
public at large does suffer as a result of crime, their practices draw attention to the importance of the private
wrongs of crime.
However, the practices of restorative justice also disturb our understanding of what it is to be a victim
of crime in deeper ways. Whilst we readily acknowledge that crime causes harm and suffering to real people,
we tend to have a very physical or material perception of the harm that crime causes. What we see are people
losing property, being injured or maimed, or even killed as a result of crime.
Restorative justice practices, in encouraging victims to define the wrong that has been committed
against them in their own terms, and to talk about it in depth, often reveal aspects of victimization which are
hidden when victimization is handled through our conventional legal processes. What often comes to light is
that being a crime victim is deeply traumatic, less because of the physical or material damage that is
experienced, more because of the disturbance it causes to our sense of order and meaning. As Howard Zehr
puts it:
Crime is devastating because it upsets two fundamental assumptions on which we base our lives: our
belief that the world is an orderly, meaningful place, and our belief in personal autonomy. Both
assumptions are essential for wholeness.6
6
Zehr, Changing Lenses, p. 24.
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Of course, we need not accept the restorative view of victimhood as correct or progressive. In other work
which I am undertaking, I am looking at it quite critically. My point here is simply that the practices of
restorative justice do seem to reveal aspects of the victim experience which challenge notions that we might
have about what it means to be a crime victim, and these challenges are of considerable interest.
What it means to do justice
We are accustomed to thinking that to achieve justice in the aftermath of a crime the perpetrators must be
subjected to adequate punishment. Of course, there are huge disputes over what constitutes adequate
punishment in general, or in any particular case. But these disputes take place amongst those who assume that
punishment of the offender is necessary and perhaps sufficient to achieve justice in the aftermath of a crime.
The practices of restorative justice put this assumption in question. On the one hand, they seem to
imply that justice can often be achieved without punishment. Justice can be restored by perpetrators of harm
repairing the material and relational harm caused by their behaviour. On the other hand, and this is very
important, these practices seem to imply that punishment of offenders can never be sufficient to deliver justice.
Even if the perpetrator of a crime is subjected to a penal sanction which everyone agree is perfectly adequate,
most of the damage caused by the crime will remain un-repaired. Hence, the restorative justice position seems
to be that even if we think we must subject an offender to some punishment, we should also persuade them to
put things right by making reparation to those they have harmed. Until right-relation has been restored, through
some reparative act, justice has not transpired.
There are other interesting ways in which restorative justice practices challenge our understanding of
justice. For instance, as restorative justice proponents Dennis Sullivan and Larry Tifft have argued, we are
strongly wedded to a desert-based conception of justice, in which justice is achieved when everybody receives
what their conduct merits, whether this be negative sanction or positive reward.7 They detect in restorative
justice a rather different needs-based conception of justice, in which justice is achieved when the needs of
everybody are met, regardless of what we think people deserve.
7
Dennis Sullivan and Larry Tifft, Restorative Justice: Healing the Foundations of Our Everyday Lives (Monsey,
NY: Willow Tree Press, 2001).
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Another difference, which has been less noticed, is that restorative justice practices raise questions
about our assumption that justice exists as an external and objective state of affairs. To get this complex point
across in a few seconds, we might suppose that a decision is reached in a case which neither the offender or the
victim think is just. Perhaps the offender feels they have been treated too harshly and the victim feels the
offender has been treated too leniently. We would not regard this as a problem if the decision stands up to
some external and objective standard (e.g. if the punishment was in line with some widely accepted notion of
proportionality between crime and punishment). In restorative justice, on the other hand, such an outcome
would be problematic since . neither the offender nor the victim had experienced justice. This suggests that, in
restorative justice, justice is conceived as something internal and subjective. The goal of restorative practices
are not so much to ensure that some objectively just outcome is reached, more to bring about a subjective
experience of justice amongst people who have experienced an injustice.
Whose obligation is it to deliver justice?
We tend to assume that when a crime occurs it is the state’s duty to deliver justice. We would certainly regard
the state as failing to meet its responsibilities if it systematically failed to dispense justice in the aftermath of a
crime. And, it would seldom occur to us to hold others responsible if a crime is not followed by the
administration of justice.
The practice of restorative justice disturbs such assumptions in subtle yet fundamental ways. To see
how this is so, we need to think of what type of justice the state is able to dispense. State’s seem reasonably
well equipped to dispense retributive or punitive justice, since such justice conceivably can emerge from the
use of coercive force upon a passive or restrained subject – and the state has the power to use such force.
However, restorative justice cannot emerge from the use of coercive force upon a passive or restrained subject.
People can only experience restorative justice if those caught up in conflict themselves decide to take part in a
restorative process. If the parties themselves do not actively cooperate, restorative justice cannot be brought
about.
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If this is the case, the state cannot have a duty to deliver restorative justice; it does not make sense to
charge an entity with a duty which it does not have the capacity to carry out. Perhaps the most that the state can
be charged with is the duty to facilitate and support people and communities in their efforts to create
restorative justice. To the extent that anybody has an obligation to ensure that restorative justice occurs, the
obligation seems to belong to people who are locked in conflict – the victim and the offender – and perhaps to
members of their communities who can help bring the victim and offender together in order to resolve their
conflict. So, if restorative justice became the routine response to crime, this would bring with is an important
shift in our assumptions both about the role of the state and about where the obligation to do justice lies.
Relating to the Lawbreaker
There are many different views about how we should relate to those who break the criminal law. However, our
legal and penal institutions tend to encourage us to relate to them in a particular way. In particular, they
encourage us to think of offenders as adversaries, whom we need to defeat if they are not going to defeat us.
Moreover, the sorts of penal policies and social practices which have become popular recently encourage us to
regard offenders as beings who are fundamentally different from ourselves and who do not properly belong in
our society. We are encouraged to place barriers between ourselves and offenders, and to construct ways of
containing them or excluding them from our midst.
In restorative justice, participants are encouraged to relate to perpetrators of crime not as adversaries,
but as people with whom we have a common interest. What is repeatedly emphasized is that the process can
result in a better deal for all: victims, offenders and the community. The process of restorative justice is
presented as painful for all, but also beneficial for all, provided all engage in it.
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Also, within the practice of restorative justice, participants are encouraged to relate to offenders as
people like us and crucially, as people with whom we need to strengthen our ties. The practice of restorative
justice is underpinned by the idea that people are most likely to harm us when they have been isolated from the
community and hence are insufficiently influenced by its norms. If we want people to behave better, we should
seek to integrate them further into the community rather than excluding them. But, relating to offenders as
members of our community is pursued, not only for prudential reasons, but as a moral imperative. Organizers
of restorative justice practices are keen to make clear that whilst the behaviour of offenders is unacceptable and
must be denounced and corrected, offenders themselves must be treated with the compassion and respect that
we owe to fellow people.
The values of justice
Finally, restorative justice practices put in question our assumptions about the values that should inform our
assessment of criminal justice. When we assess our criminal justice system, we do so by reference to certain
values. For instance, we ask whether those who commit crime are receiving adequate punishment. But we also
ask whether the system is treating people in a decent and civilized manner and respecting their rights. The
practice of restorative justice prompts us to question whether the values we are using to assess criminal justice
are the correct ones, or are being interpreted and applied correctly. I will try to illustrate this through one
example.
Many take it as axiomatic that consistency is an important justice value. The idea that like cases be
treated alike is for many close to the essence of justice. If X is caught stealing from a shop and gets fined £50,
many would regard it as unjust if Y is caught committing the exact same offence in very similar circumstances
and gets sent to prison for three months. We can argue until the cows come home about what the just penalty
for shop-lifting should be, but still insist that whatever conclusion we reach should be applied equally to all as
a matter of justice.
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In restorative justice, the high value attached to consistency is put in question. Those who are regarded
as having a stake in a particular conflict are encouraged to construct an action plan which meets their ‘local’
needs. In constructing an action plan, they may of course refer to public legal norms, but these are clearly only
one point of reference and not necessarily a particularly important one. If one group of people decide that their
needs are best served by giving the shoplifter a part time job in the shop, enabling them to pay for the goods
they have stolen out of their wages, then this is regarded as a just outcome provided the decision has been
reached consensually through non-dominated dialogue. The fact that another group of people, confronted by a
very similar situation, constructed a very different action plan does not undermine the justice of the solution
reached in this case. If another group of people decided that their shoplifter should stay away from the shop
forever and undergo intensive treatment for kleptomania, then provided that decision was also reached
consensually through non-dominated dialogue, justice has occurred in that case also.
It might be argued that this example does not actually demonstrate that consistency is not a value in
restorative justice. Rather, it shows that what is valued in restorative justice is not consistency of outcome but
consistency of process. But even this would involve a considerable shift in our assumptions about the values
that we should bring to our assessment of criminal justice. As we saw earlier, a wide variety of processes are
subsumed under the heading restorative justice. If we demand consistency of process what we are demanding
is observance of some very general norms, such as decisions should be reached consensually and through nondominated dialogue. This seems a long way from our traditional expectation that justice demands that like
cases be treated alike.
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Conclusion
To conclude, I have tried to show that what makes restorative justice interesting and important is its potential
to disturb deeply ingrained patterns of thinking about crime and justice.8 In Changing Lenses, Howard Zehr
drew upon paradigm theory to suggest that restorative justice might be seen as a completely different way of
constructing reality.9 The difference between our current image of crime and justice and that implicit in the
practice of restorative justice was presented as akin to the difference between a Newtonian and an Einsteinian
understanding of the world, or to a scientists’ and an artist’s representation of reality. Perhaps this was
overstating things. However, it strikes me as preferable to think of restorative justice in these terms than to
regard it as a mere technique which might of use to us in our fight against crime. To understand restorative
justice in such limited terms is to fail to recognize or respond to the important challenge which it presents to us
– a challenge to our images of crime and justice and indeed to our image of ourselves.
8
See also D. Van Ness and K. Strong, Restoring Justice (2nd edn.) (Cincinnati, OH, Anderson Publishing, 2002), ch.
2.
9
Zehr, Changing Lenses, ch. 6; cf. R. Ross, Returning to the Teachings: Exploring Aboriginal Justice (Toronto:
Penguin, 1996).
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