Restorative Justice: The Challenge of Sexual and Racial Violence
Published date | 01 June 1998 |
Date | 01 June 1998 |
DOI | http://doi.org/10.1111/1467-6478.00089 |
The paper reviews the theory and policy proposals of recent formulations
of abolitionism and restorative justice. Challenges are posed to some of
the assumptions of abolitionism by considering its applicability to acts
of violence against women, children, and minority ethnic citizens. In
particular, the assumptions that dangerous offenders are few, and that
the ‘meaning’ of a harmful act is negotiable between perpetrators and
victims, are called into question. The symbolic function of criminalization
and penalization is discussed. The paper considers whether the strategies
suggested by recent proponents of forms of abolitionism and restorative
justice can satisfy doubts about the adequacy of earlier abolitionist
formulations in relation to both the symbolic and instrumental functions
presently served by criminal law.
Whilst calls for further criminalization and penalization of racial,
sexual, and domestic violence are understandable, the abolitionist case
that retributive justice is more likely to increase rather than reduce such
violence, and to leave victims unsatisfied, is defended.
INTRODUCTION
This paper focuses on one major theory, and reflects on one important
controversy about its application, which has appeared in the writings of
critical/abolitionist criminologists during the last few years. A significant
development during the late 1980s and the 1990s has been the elaboration
of the idea of restorative justice, as an alternative to retributive justice; an
urgent, and as yet unresolved, controversy has been whether an abolitionist/
restorative perspective is appropriate with regard to crimes against women,
© Blackwell Publishers Ltd 1998, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA
* Professor of Criminology and Penology, Division of Sociology, University
of Northumbria at Newcastle, Newcastle upon Tyne NE1 8ST, England
An earlier version of this paper was presented at the Law and Society Association annual
meeting, St. Louis, Missouri, May 1997.
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JOURNAL OF LAW AND SOCIETY
VOLUME 25, NUMBER 2, JUNE 1998
ISSN: 0263–323X, pp. 237–56
Restorative Justice: The Challenge of Sexual and
Racial Violence
BARBARA HUDSON*
children, and minority ethnic citizens. These debates reflect the significance
for abolitionists and other penal reformers of the ‘get tough’ penal climate,
and also the rise in influence of victims’ movements and the successes of
feminists and others in urging that sexualized and racialized violence needed
to be taken more seriously by ‘progressive’ criminologists as well as by
legislators and policy-makers.
Two publications which appeared in 1986 summarized the main currents
of European abolitionist thought at that time, and gave hints of what was
to be elaborated during the next ten years. Herman Bianchi and Rene Van
Swaaningen’s edited volume contained twenty papers which were presented
at the Second International Conference on Prison Abolition in Amsterdam
in 1985.1As the conference title implies, it was focused mainly on the
abolition of imprisonment, although some papers did look towards the
replacement of the whole criminal justice system with something along the
lines of the ‘alternative dispute settlement’ procedures which existed in some
places in North America. The ideas put forward in the volume were the
well-known abolitionist proposals for a moratorium on prison building,
decriminalization of some offences, and moving from criminal law towards
civil law/community court procedures. In the main, abolitionism and the
informal justice movement were separate, even if their practical proposals
sometimes appeared very similar. Abolitionism was a vision without a
strategy; informal justice was a practice without a theory.
In the same year, a special issue of the journal Contemporary Crises
contained papers which tried to give abolitionism a stronger theoretical base
than previously. A paper by Heinz Steinhert, for example, showed that with
a different (more realistic, he claims) set of assumptions than those on which
crime policy is usually based – more realistic especially than the assumption
that punishment is an appropriate and effective means of reducing crime –
an alternative strategy for reducing the influence of harmful behaviour could
rationally be derived.2
In the 1990s, writers sharing or sympathetic to abolitionism or at least
drastic reduction of the penal sphere have further developed ideas about
procedures which could replace those of present criminal law and about
changing the normative orientation of law from retribution to restoration.3
As well as European abolitionist theory, these contemporary reformers have
found theoretical grounding for their proposals in the work of Habermas
and in feminist and postmodernist jurisprudence.
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© Blackwell Publishers Ltd 1998
1H. Bianchi and R. Van Swaaningen (eds.), Abolitionism: Towards a Non-Repressive Approach
to Crime (1986).
2 H. Steinhert, ‘Beyond Crime and Punishment’ (1986) 10 Contemporary Crises 21.
3J. Braithwaite, ‘Inequality and Republican Criminology’ in Crime and Inequality, eds. J.
Hagan and R.D. Peterson (1995); R. Van Swaaningen, Critical Criminology: Visions from
Europe (1997).
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