The Restorative Justice Apparatus: A Critical Analysis of the Historical Emergence of Restorative Justice
| Author | Giuseppe Maglione |
| Date | 01 October 2019 |
| DOI | 10.1177/0964663918806561 |
| Published date | 01 October 2019 |
| Subject Matter | Articles |
Article
The Restorative Justice
Apparatus: A Critical
Analysis of the Historical
Emergence
of Restorative Justice
Giuseppe Maglione
Edinburgh Napier University, UK
Abstract
Drawing on Michel Foucault’s theoretical reservoir, this article conceptualizes
restorative justice (RJ) as an ‘apparatus’, that is, a dynamic ensemble of elements whose
emergence is related to the development of a distinctive political rationality (ethopo-
litics). This approach enables a multidimensional comprehension of RJ, since it targets
both discursive and non-discursive elements, their power/knowledge relations and
subjugating effects. Furthermore, the article explores possibilities for an emancipatory
RJ, against the subjective entrapment that the apparatus produces, offering some prac-
tical examples. Overall, this work aims to offer a theoretically engaged and critical
scrutiny of RJ by using an underexploited analytical device – the apparatus – apt to make
visible unexpected dimensions of this ‘new’ frontier of western penalty. This could
enhance our understanding of the emergence and possible trajectories of RJ, by iden-
tifying risks and opportunities as well as tools for disentanglement from its most pro-
blematic institutional developments.
Keywords
apparatus, ethics, ethopolitics, Michel Foucault, restorative justice, subjectivation
Corresponding author:
Giuseppe Maglione, School of Applied Sciences, Edinburgh Napier University, Sighthill Campus, Edinburgh
EH11 4BN, UK.
Email: g.maglione@napier.ac.uk
Social & Legal Studies
2019, Vol. 28(5) 650–674
ªThe Author(s) 2018
Article reuse guidelines:
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DOI: 10.1177/0964663918806561
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Introduction
Over the past 40 years, restorative justice (RJ) has slowly emerged as a worldwide field
of practice and research (Wood and Suzuki, 2016). The amount of normative studies on
what RJ ‘ought to be’ and empirical works on ‘how it works’ outnumbers the critical
research on the links between RJ and broader political, cultural and social phenomena
(Aertsen and Pali, 2017; Pavlich, 2005; Richards, 2005, 2011; Woolford and Ratner,
2007). This article contributes towards addressing such a lack of theoretical engagement,
using a generative (and relatively underexploited) research device introduced by Michel
Foucault, that is, the apparatus
1
(Foucault, 1980 [1977]). The apparatus is a ‘grid of
interpretation’ (Dreyfus and Rabinow, 1982: 121) which considers discursive and non-
discursive objects (ideologies, scientific knowledges, ethical doctrines, legal devices and
institutions) by connecting them in both conceptually and normatively productive ways,
making visible their political conditions and subjugating effects. Through this analytical
lens, RJ is configured as a bundle of power/knowledge relations which facilitates the
unfolding of a specific political rationality – ethopolitics (Rose, 1996a) – which in turn
reproduces RJ in distinctive ways. Furthermore, the very conceptualization of RJ as a
functional and strategic mechanism urges critical scholars to envision alternative ver-
sions of RJ, which enact forms of active subjectivation.
The article starts with a brief review of the Foucauldian concept of apparatus. It then
reconstructs RJ as an apparatus, focusing on discursive and non-discursive elements,
their connection and subjugating effects. The final part of the study draws on Foucault’s
later ethical reflections (1 982, 1984a, 1997), in order to ge nerate some preliminary
insights into the emancipatory development of RJ. Additionally, some examples of how
to implement such vision are cursorily explored. Overall, while this study does not aim to
be exhaustive of RJ’s themes and problems, it does intend to map out this field by
reorganizing its multiple aspects along the apparatus’ lines. The reasons for choosing
such an approach are as much epistemological as normative. This perspective, in fact,
helps both to reformulate RJ by bridging dimensions often researched as separate and
discrete entities and to image forms of critical resistance to RJ’s institutional develop-
ments (Hoy, 2004).
There are three main limitations to the research. First, the illustrative context is drawn
from the United Kingdom and United States, and therefore analyses and proposals apply
only (or at least mainly) to such countries. A second limitation is that this work is an
elaboration on theoretical, advocacy and policy material accumulated over the last 40
years, and as such tends to be at times abstract and overgeneralizing. However, a major
aim of this article is to chart general patterns in the development of RJ (Garland, 2001:
viii). In light of this, abstraction and generalization are useful heuristic tools for an
insightful analysis. Finally, there is a paradoxical ‘side effect’ in employing the appa-
ratus as analytical grid: while this device is used to offer a non-linear and multidimen-
sional representation of the research object, it may render this object conceptually
smooth and politically cogent. In order to address this limitation, the article considers
contingent slippage points, tensions and gaps which disrupt the apparatus’ workings,
making its structure less stable and its action less compelling. Yet that ‘side effect’ may
Maglione 651
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