Restorative justice and the state. Untimely objections against the institutionalisation of restorative justice
| Author | Giuseppe Maglione |
| Position | Edinburgh Napier University |
| Pages | 4-22 |
4
British Journal of Community Justice
©2021 Manchester Metropolitan University
ISSN 1475-0279
Vol. 17 (1) 5 - 22
RESTORATIVE JUSTICE AND THE STATE. UNTIMELY
OBJECTIONS AGAINST THE INSTITUTIONALISATION
OF RESTORATIVE JUSTICE
Giuseppe Maglione, Edinburgh Napier University,
Contact details: G.Maglione@napier.ac.uk
Abstract
The i ncorporation of restorative justice (RJ) into penal policy is not a neutral process; it
actually re-shapes both the rationales and the functioning of RJ, possibly erasing its
potential to be something ‘other’ and ‘better’ than criminal justice. Through a comparative
analysis of policy on RJ in England and Wales, Norway and France, this paper claims that
RJ’s promise to provide a c ooperative-transformative approach to social conflicts and
harms, predicated on de-professionalisation, direct stakeholders’ centrality and critique of
punishment, is neutralised by the process of translating RJ into penal policy. The second
part of the paper sketches out RJ as a critique of violence, outside any legal framework.
Along these lines, it is possible to generate original insights into the current situation and
future developments of RJ and, more broadly, into the corrosive dynamics of legal violence.
Keywords
restorative justice; penal policy; institutionalisation; state; anarchism; abolitionism;
Introduction
In this paper, I reflect on the incorporation of restorative justice (RJ) into penal policy, as a
stage in the wider phenomenon of institutionalising RJ. I contend that this process
necessarily obliterates RJ’s promise to provide a cooperative-transformative approach to
social conflicts and harms predicated on de-professionalisation, direct stakeholders’
centrality and critique of punishment. I make this case by analysing some examples of the
inclusion of RJ into penal policy, drawn from England and Wales, Norway and France. My
point is that penal policy, by imposing on RJ the recognition of the state – understood as a
hierarchical social relation and not only as a complex institutional body – sterilises RJ’s
potential to be something substantively different and ‘better’ than criminal justice. When
RJ endorses and enforces the state, in fact, it turns into a largely conservative and subtly
punitive form of social control. In the final section of this work, drawing on Walter Benjamin,
Jacques Rancière and Saul Newman, I sketch out some implications of my argument,
generating insights into the possible development of a radical, non-institutionalised RJ.
Background
The expression ‘restorative justice’ here refers to three conceptually distinct but empirically
overlapping objects: (1) a justice reform movement emerging in the 1970s in the Western
Maglione
5
world and then spreading globally, advocating for a (2) largely non-punitive and
participatory approach to harmful behaviours (3) mainly implemented by facilitated and
voluntary encounters between direct stakeholders, geared toward addressing those harms
and their consequences (cf. Marshall, 1999). This movement has taken different forms in
different geographical/historical contexts, modifying its ethos in response to chang ing
political and social circumstances, and advocating for different practices, determining the
empirical complexity of the RJ field.
In spite of such a diversity, the RJ movement has often hailed the transformation of RJ into
a penal policy option as a normatively desirable stage in the institutionalisation of this
approach (e.g. Walgrave, 2000; Braithwaite, 2002; Van Ness and Strong, 2002; London,
2010). This is because policy supposedly ensures the wide and deep development of RJ, in
terms of implementation, funding and capacity. At the same time, the development of
policy on RJ, over the last thirty year s in the Western world, has been relentless (Poama,
2015). This process has been studied widely.
Aertsen, Daems and Robert’s edited collection (2006) on the i nstitutionalisation of RJ has
richly described dangers and opportunities related to the interaction between the multiple
ideologies underlying RJ and its policy implementation, as well as the relationships between
centralised institutionalisation and the current transformations of contemporary Western
states. The overall picture emerging from this work emphasises the risks of sterilising the
transformative potential of RJ due to the conflicting values underpinning criminal justice
and RJ. In fact, as Pavlich (2005) has argued, RJ is often situated within criminal justice
systems and increasingly tends to serve, and to be measured by, criminal justice objectives
such as offender rehabilitation, compliance or reoffending rates, and less by the goals of
repairing the harm or meeting victim needs. In a similar vein, Woolford and Ratner (2007)
have expounded the limits of the formalisation of RJ describing how i nformal conflict
resolution strategies (e.g. RJ) are articulated and then co-opted by state-based formal
apparatuses. RJ, insofar as it is funded by the public bodies and endorses legal mindsets,
strengthens juridical structures instead of problematising their premises, forms and effects.
From an empirical perspective, Crawford and Newburn (2003) have investigated the
incorporation of RJ within the English and Welsh youth justice, generating precious insights
into the institutionalisation of RJ. Looking at the transformations involving the youth justice
system in England and Wales during the early 2000s, they have questioned the purported
shift from an ‘exclusionary punitive justice’ to an ‘inclusionary restorative justice’ (Crawford
and Newburn, 2003: 2). The main issue, here, is that the application of RJ principles has
been halted by the limited stakeholders’ participation, mainly due to the legal tools used to
implement RJ as well as by the managerial nature of the Anglo-Welsh youth justice system.
This perspective resonates with Johnstone’s claim (2011) that institutionalising RJ equates
with turning RJ practices into professionalised processes, characterised by uniformity, lack
of creativity, centralisation, and as such unable to give conflicts back to communities.
Similarly, Christie’s late critical reflections on the cooptation of RJ (2013, 2015) have raised
the specific issue of the language of RJ within policy (2013) which manifestly overlaps with
‘conventional’ criminal justice language (e.g. dichotomy victim/offender). The issue at stake
is whether the institutional developments of RJ deliver or betray this ‘new’ paradigm’s
To continue reading
Request your trial