Reparation and Retribution: Are They Reconcilable?
| Date | 01 March 1994 |
| Author | Lucia Zedner |
| DOI | http://doi.org/10.1111/j.1468-2230.1994.tb01934.x |
| Published date | 01 March 1994 |
Reparation and Retribution: Are They Reconcilable?
Lucia
Zedner”
Introduction
The recent history
of
criminal justice contains an apparent anomaly: the
simultaneous renaissance
of
retributive and reparative models of justice. This
article will explore the genesis and competing claims of these two models, how it is
that their fortunes have coincided, and with what consequences. Many writing in
this field have felt driven to champion the claims
of
one or the other.’ Some
of
these writings read like missionary tracts whose proselytising purposes tend to
obstruct measured analysis. Yet the greatest possibilities for illuminative debate
have arisen where rival champions have entered into battle with one another to
expose the inadequacies or undesirability
of
the other’s model.* The
consequence, however, is that positions have become polarised. Retributive and
reparative justice are posed as antinomies whose claims rival one another and
whose goals must be in conflict. The most radical writers propose a major
paradigm shift in which reparation would take priority over punishment as the goal
of
the criminal justice ~ystem.~ From the opposing camp, adherents
of
retributivism generally argue that reparation is merely incidental to the main
purpose
of
punishment. According to this latter view, the place
of
reparation
within the criminal justice system serves pragmatic purposes but is conceptually
anomalous. More recently, welcome attempts to bridge the gap traditionally posed
between reparation and retributivism have been mooted by those who question the
usefulness
of
this dichotomised approach to penal theory
.4
*Law Department, London School of Economics.
This article draws upon my contribution to a comparative project ‘Wiedergutmachung im Strafrecht/
Reparation in Criminal Law’ at the Max Planck Institute for Foreign and International Criminal Law,
Freiburg. The project
looks
at the relationship between punishment and reparation at the level of both
theory and practice in sixteen countries.
I
am grateful
to
Andrew Ashworth, Michael Cavadino, James
Dignan, Nicobd Lacey, Andrew von Hirsch and Susanne Walther for their comments and suggestions.
1 The best
of
such writings include: on reparative justice, Barnett, ‘Restitution: A New Paradigm for
Criminal Justice’
(1977) 87
Ethics
279;
Wright,
Justice for Victim and Offenders
(London: Sage,
1991);
and on retributivism, von Hirsch,
Doing Justice
(Boston: Northeastern University Press,
reprint
1986);
Ashworth, ‘Criminal Justice and Deserved Sentences’
(1989)
CLR
340.
2
For example,
see
the debate between Braithwaite and Pettit, and von Hirsch and Ashworth:
Braithwaite and Pettit,
Not
Just Deserts: A Republican 7heory
of
Criminal Justice
(Oxford: Oxford
University Press,
1990);
von Hirsch and Ashworth, ‘Not Not Just Deserts: A Response
to
Braithwaite
and Pettit’
(1992) 12
OJLS
83
and reply by Braithwaite and Pettit, ‘Not Just Deserts, Even in
Sentencing: A Reply to von Hirsch and Ashworth’
(1992) 4(3)
Current
Issues
in Criminal Justice
225-239;
Ashworth and von Hirsch, ‘Desert and the Three Rs’
(1993)
J(1)
Current
Issues
in
Criminal Justice
9.
Another such debate is Van Ness, ‘New Wine and Old Wineskins: Four
Challenges of Restorative Justice’
(1993) 4(1)
Criminal Law Forum,
and Ashworth, ‘Some Doubts
about Restorative Justice’
(1993) 4(2)
Criminal Law Forum
1.
3
See, for example, Barnett,
op
cir
n
1
;
Abel and Marsh,
Punishment and Restirution:
A
Restitutionary
Approach
to
Crime and
the
Criminal
(Westport, Connecticut: Greenwood Press,
1984);
Fattah, ‘From
a Guilt Orientation to a Consequence Orientation’ in Kueper and Welp (eds),
Beitraege zur
Rechrswissenschfl
(Heidelberg: C.F. Mueller Juristischer Verlag,
1993) 771
-
792.
4
See Watson, Boucherat and Davis, ‘Reparation for Retributivists’ in Wright and Galaway (eds),
Mediation and Criminal Justice: Victims, Offenders and Community
(London: Sage,
1989);
Cavadino
and Dignan, ‘Reparation, Retribution and Rights,’ unpublished paper delivered at the British
Criminology Conference, Cardiff,
1993.
0
The Modern Law Review Limited
1994
(MLR
572,
March). Published by Blackwell Publishers,
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228
March
19941
Reparation and Retribution: Are
They
Reconcilable
?
This article asks whether the penal system can or should embrace both punitive
and reparative goals simultaneously. It does
so
by analysing the genesis and the
claims of retributive and reparative justice; by examining the central criticism of
reparation
-
that it fails as punishment; and, finally, by asking whether and in
what respects reparation and retribution can be reconciled.
If
reparation does have
a place within the penal system, then what is, or ought to be, that place? This is
neither a missionary tract nor a determined attempt at reconciliation. Rather, it
seeks to subject both retributive and reparative justice to critical examination
in
order to tease out strands of congruity and accord as well as those of difference and
incompatibility. In a criminal justice system which is characterised above all by
diversity and tension, it would be curious for sentencing to enjoy unity or even
coherence of aim. Sentencing embraces an array of diverse functions and rightly
so.
Pluralism is a necessary feature of our penal system and we should resist the
temptation to seek intellectual elegance or unanimity at all costs.
A
Punishment
as
Retribution
Before examining the genesis and claims of reparative justice, let us briefly
recapitulate the present state
of
discussion regarding the purposes of our penal
system. This history is familiar and it serves little purpose to rehearse it at length
here. This said, if the import
of
the potential paradigm shift proposed by reparative
justice is to be fully appreciated, then an overview of the prevailing paradigm is
essential.
Since the heyday of welfarism in the 1960s, the political agenda in sentencing
has changed markedly: disillusionment with the welfare model of justice prompted
growing calls for a ‘return to justice’, a movement which signifies both renewed
regard for due process and the renaissance of retributivism in sentencing5
Propounded first and most vigorously in the United States by Andrew von Hirsch,6
desert theories have more recently become highly influential in Britain.
Using classical notions of free will, moral responsibility and culpability, desert
theory reifies corresponding notions of censure and sanction as the ‘just’ response
to offending behaviour. Within this framework, it claims to grade the gravity of
crimes in order that sanctions of comparable severity may be applied.
In
Britain
many academics, most notably Andrew Ashworth, have welcomed the attempt
made by desert theory to develop a coherent, structured approach to sentencing
and have applauded the move toward certainty and consistency in the imposition
of
penalties which it is said to promote.’ Early proponents of desert theory
envisaged that it would serve to delimit levels of punishment, or even bring about a
general lowering of the tariff. Instead, since the political swing towards
conservatism in Britain
in
the 1980s, the retributivism of desert theory has been
appropriated to serve demands for tougher penalties for serious crime.8
5
See Ashworth,
Sentencing
and
Criminul Justice
(London: Weidenfeld and Nicolson, 1992) 66-68,
for
a discussion of the return to retributivism.
6
von Hirsch,
Pusf
or Future Crimes
(Manchester: Manchester University Press, 1986); von Hirsch and
Ashworth (eds),
Principled Sentencing
(Edinburgh: Edinburgh University Press, 1992); von Hirsch,
Censure
and
Sanctions
(Oxford: Oxford University Press, 1993).
7 Ashworth,
op
cit
n
1,
350.
8 Hudson,
Justice through Punishment:
A
Critique
of
the ‘Justice
‘
Model
of
Corrections
(Basingstoke:
229
Macmillan, 1987) 22.
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