Reviews
| Author | John Williams Mozley,Kathy Daly,Barbara Sullivan,Shadd Maruna,Arie Freiberg,Peter Grabosky |
| DOI | 10.1375/acri.36.1.109 |
| Published date | 01 April 2003 |
| Date | 01 April 2003 |
109
THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY
VOLUME 36 NUMBER 1 2003 PP.109–126
REVIEWS
Restorative Justice
and Responsive Regulation
by John Braithwaite
(2002) New York:Oxford University Press. 314 pp., $150.ISBN 0-19-513639
In the beginning there was Crime, Shame, and Reintegration (1989). In that book,
John Braithwaite argued for a different response to crime that was “neither cold
and punitive, nor warm and permissive” [but rather warm and firm 1989, p. 152].
He argued we must “shift away from punitive social control toward moralising
social control” (p. 181). He said that the people whose opinion we value most are
those close to us, and that we are less likely to be affected by distant judges or state
authorities. He argued that we should communicate disapproval and condemnation
for wrongs in a way that reintegrates people, not stigmatises them.
The arguments in Crime, Shame, and Reintegration drew from Braithwaite’s
earlier work on the regulation and control of the pharmaceutical and mining indus-
tries (Braithwaite, 1984, 1985). In a dramatic break from criminological theorising
(excepting Sutherland), Braithwaite’s theory of reintegrative shaming was origi-
nally motivated by studies of white collar crime, which he subsequently applied to
common crime. This was an arresting move, which suggested a new way for crimi-
nologists to think about crime: better to focus on the regulation of conflict and
wrongs than on methods of controlling or punishing wrong-doers.
Restorative Justice and Responsive Regulation remains faithful to the ideas in
earlier works, but it escalates the potential for moralising social control and respon-
sive regulation ten-fold. Braithwaite is not content to focus merely on street crime,
domestic and family violence, and organisational crime. He wants to extend the
idea of restorative justice to transforming social and legal order.
The restorative justice train picks up pace in chapters 1–5, which review
research and theories on restorative practices, summarising and extending upon
Braithwaite’s (1999) major review essay. In chapters 6–8, the restorative justice
train rapidly gains momentum and launches off the planet. In these chapters, the
analysis shifts from crime handling to world peacemaking, sustainable develop-
ment, and the transformation of the legal system. Chapter 6 introduces concepts
such as “restorative diplomacy” (p. 170), “democratised peacemaking” (p. 174), and
“restorative approaches to peacemaking” (p. 177). Chapter 7 on sustainable devel-
opment introduces the concepts of “restorative justice institutions” (p. 211) and
restorative approaches to the development and socialisation of children, which are
required, in Braithwaite’s view, for human and social capital development. This
chapter offers a variety of imaginative approaches to transforming child-rearing and
education from private to collective activities. In the final chapter, Braithwaite
proposes that “it is possible to transform the entire legal system to a more just one”
by the introduction of the “principles of restorative justice and responsive regula-
tion” (p. 239). The book’s last paragraph begins grandly:
… Restorative justice [is] more than a variation on an old theme about how to do
disputing, more than a reform at the margins of the criminal justice system. If we
marry it to responsive regulation, there is potential for it to transform the place of
regulation and law in sustaining the economy, managing relations between nations,
reinventing education and building a richer democracy (p. 266).
But Braithwaite then pulls back on his vision, suggesting that it “must be
restrained for the moment by a debate about the content we want restorative values
to have and [by what we learn from] our experimentation with restorative justice
and responsive regulation” (p. 266).
Central to the book’s thesis is Braithwaite’s concern that the content of restora-
tive values is as, if not more, important than restorative processes. His list of restora-
tive values includes (pp. 14–15):
• restoration of human dignity
• restoration of property loss
• restoration of injury to the person or health
• restoration of damaged human relationships
• restoration of communities
• restoration of the environment
• emotional restoration
• restoration of freedom
• restoration of compassion or caring
• restoration of peace
• restoration of empowerment or self-determination
• restoration of a sense of duty as a citizen.
This list discloses Braithwaite’s way of thinking about restorative justice: it is not
simply a method of responding to crime, of crime prevention, or of crime control.
Rather, it is about creating a more socially just world and doing so with less empha-
sis on “legalistic regulation” (p. 15). The preferred means is “responsive regulation”,
a dynamic method of securing compliance via the “Regulatory Pyramid” (p. 31).
In the pyramid, restorative practices, the largest area at the base, should be used as
much as practicable. Such practices vary greatly, but the aim is to secure compli-
ance through dialogue and persuasion and to do so often, before escalating to more
punitive interventions, including imprisonment at the apex of the pyramid.
Responsive regulation has two components. First, it is responsive to variation in
citizens’ and corporations’ regulation of themselves. Thus, consistency (or “like
treatment” for “like cases”) is unimportant; more important is realising the desired
outcome in each case (p. 29). Second, punishment needs to be in the background
as a threat, but not in the foreground (p. 35). When punishment is in the
foreground, it increases “reactance” (acting contrary to a group norm) and an
inability for an offender to be “other-regarding” (p. 36).
There is an extraordinary range of claims and insights in this book, but in
general, I see three kinds of reactions. Some people will utterly adore it. They will
see the work as synthetic and broad in that it covers many theories from across the
social sciences, considers practices from all parts of the world, and discusses myriad
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REVIEWS
THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY
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