Justice has been defined as ‘the fair treatment that everyone deserves’.[1] It is a foundational requirement for any human living within a community and there are many ways justice it can be sought. Revenge, criminal punishment or just deserts are a few examples. The variety of ways justice is sought and the plethora of situations it is applies to, has resulted in many theoretical, conceptual and inventive justice notions. Social justice and the sub-discipline of restorative justice are two such innovations. Restorative justice has been described as “one of the most significant innovations in the administration of criminal justice to have arisen in the modern era”.[2] But what is it and how is it different from other forms of justice? This paper seeks to answer the question ‘What is restorative justice and how does this differ from other models of justice?’. To do this, three models of social justice are outlined first. Second, the definition, practical programming and theological framework of restorative justice are examined in more detail. Finally, four differences between restorative and retributive justice are offered and conclusions are drawn against the proposed question.
Models of Social Justice
Social justice as a concept is best understood and represented in four models. Sabbagh et al. suggest that these are: distributive, procedural, retributive and restorative justice.[3] Defining these terms may prove helpful.
Distributive Justice
Distributive justice, also known as economic justice, involves the socially just and fair allocation of resources such as wealth, power and reward.[4] It calls for the adequate distribution of resources throughout society and attempts to guarantee that all people ‘fairly’ receive an adequate level of material means.[5] Although many agree with the ‘fair’ distribution of resource as a concept, clarification is often needed to ensure that ‘fairness’ is accurately understood and practised.[6] Therefore, Wright et al. suggest that to ensure the resource is shared appropriately, three basic ‘rules’ are to be applied when distributing: equality (equal distribution of resources), need (unequal distribution to those most in need) and equity (unequal reward based upon or relative to one’s contribution).[7] When ‘fair’ distribution is based upon these principles, Deutsch et al. observe an increase in societal stability and well-being.[8]
Procedural Justice
Similarly, procedural justice is also linked to the concept of ‘fairness’.[9] Not the ‘fairness’ of an outcome (as in distributive justice) but the ‘fairness’ of procedures that produce it. Bennett et al. define procedural justice (or procedural fairness) as the “fairness of processes used by those in positions of authority to reach specific outcomes or decisions”.[10]When those under authority perceive ‘fair’ justice processes, legitimacy is fostered, which leads to self-reported compliance with laws.[11] To achieve this, Tyler suggests that two distinct, yet linked, components of procedural justice theory are to be followed: the power holder (such as a police officer or court official) should grant citizens a ‘voice’ so that their point of view and a person should be treated with dignity and respect.[12] When this is followed, procedural justice is likely to be delivered. Furthermore, Mazerolle et al. observe that the two components are ‘operationalised’ into four constructs: voice, trustworthy motives, dignity and respect, and neutrality in decision making.[13]
Retributive Justice
In retributive justice theory, although fair treatment is sought,[14] adequate punishment for transgressions is considered a priority.[15] Retributive justice is a response to rule-breaking and a notion that believes “an offender, having violated rules or laws, deserves to be punished and, for justice to be reestablished, has to be punished in proportion to the severity of the wrongdoing”.[16] The occurring violation of rules and laws can ensue at a micro and macro level of interpersonal relationships (between friends and family or organisations and national groups). An important factor in retributive justice is the unilateral imposition of punishment by another party, usually a judge in a legal system (or sometimes a victim in an act of revenge).[17] In the criminal system, retributive justice results in offenders ‘paying’ for acts of violation by prison sentencing, material compensation or community service.[18] In the Western criminal justice system, “once the courts impose punishment…justice is often considered done”.[19] However, Latimer et al.’s meta-analysis suggests that a more effective alternative exists, namely, restorative justice.[20]
Restorative Justice
Definition
The concept was first used in the 1970s when referring to victim-offender mediation programs.[21] The term restorative justice was considered as an alternative way of thinking and responding to social and legal wrongdoing.[22] A popular definition offered by Marshall defines restorative justice as, “a process in which all parties with a stake in a specific offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future”.[23] It refers to a formal process for “resolving crime by focusing on redressing the harm done to the victims, holding offenders accountable for their actions and, often also, engaging the community in the resolution of that conflict”.[24] As an alternative to formal prosecution (or as part of offender rehabilitation), offenders, victims and friends and family are brought together in a professionally mediated, safe and controlled environment to talk over and repair the harm caused by an offence.[25] Johnstone et al. note that, for restorative justice to be effective, the people most affected should agree on how the matter is to be dealt with.[26] Aertsen et al. note that this is achieved by relying upon memory-based recollections of the offence, to help foster a shared understanding of what happened and why.[27] This innovative approach is designed “to make wrongdoers aware of the nature and magnitude of the harm they cause to other people and of their obligation to atone for that harm through constructive and reparative gestures and deeds”.[28] Studies suggest that these reparative measures yield good results that can lead to reconciliation, reintegration and the healing of victim trauma.[29]
Practice
Various restorative justice programs can be implemented to help achieve these positive ‘restorative outcomes’. They include formal victim-offender mediation (a face-to-face meeting mediated by a professional between victims and offenders), family group conferencing (a community meeting including those most affected by the offence, led by a trained facilitator), circle sentencing (where the judge, legal team, police, families, victim and offender sit facing one another for formal dialogue) and reparative probation (where minor offenders avoid sentencing through the participation in amendatory community groups). Although studies suggest that these methods are effective,[30] serious criminal cases only adopt these processes after the criminal justice proceedings.[31] However, all formal and informal restorative programs that go ahead are conducted based upon a series of underlying assumptions: (1) participation is voluntary, (2) repairing the harm suffered by the victim is the main priority, (3) offenders accept responsibility for their actions and agree that their conduct was not acceptable, (4) victims determine the best means for offender-victim reparation and (5) the community has a responsibility to contribute to this process.[32]
Theological Reflection
Although this paper approaches restorative justice from a sociological and criminal research paradigm, yet a theological reflection appears relevant. Marshall et al. appear to agree, claiming that “without the influence of core Christian values and beliefs, the central tenets of restorative justice might not emerge with such clarity and conviction”.[33] Broughton also adds that a “Christology built on the life of Jesus has been crucial in the evolving field of restorative justice”.[34] It appears appropriate, therefore, to highlight the supporting theological rationale for restorative justice as present in scripture, in particular, Jesus’ parabolic teaching on the Prodigal Son (or The parable of the Prodigal Son as it is commonly known).[35] Marshall offers his summary by stating that it is “the story of a young man who demands his share of inheritance…squanders it in wild living…and returns home deeply chastened, where he is joyfully reconciled with his father and profoundly resented by his churlish older brother”.[36] Interestingly, Marshall reads Luke 15:11-32 through a jurisprudential lens and observes that the lead characters reflect the three main groups in every criminal offence: the offender (the prodigal son), the victim (the father) and the surrounding law-abiding community (the compliant brother angered by the judicial leniency offered). The parable has broader interpretive and theological significance and is not to be treated as a legal guideline for public policy. Nevertheless, it highlights a Christological intention “to break open existing frames of reference, to challenge or overturn taken-for-granted ways of understanding the world and its notions of justice”.[37] Jesus appears to advocate restorative approaches to wrongdoing within interpersonal and community relationships (in this case a family). Furthermore, His parabolic teaching emphasises the “relational impact of human offending” and “underscores the restorative justice principle that, what makes criminal behaviour so harmful is that it violates the human relationships…that bind us together in community”.[38] Offerings such as these appear to align with the central concept of restorative justice, that offending primarily causes harm to individuals, relationships and the communities.[39] It is this guiding theory and triad of concepts (individuals, relationships and community) that makes restorative justice differ from other models of justice, in particular, retributive justice which focuses primarily on punishment.
Restorative vs retributive justice
Restorative justice is commonly contrasted with retributive justice.[40] This paper takes the same approach and seeks to offer four differences between the two models.
The focus on Individuals
First, restorative justice interprets crime as primarily a conflict between individuals; only secondarily is it deemed a violation of the law.[41] This differs from retributive justice, where lawbreaking is the primary violation.[42] Also, restorative justice seeks to address the individualised and particular issues that cause an offender to harm. This differs from retributive justice, where punishment is chosen over an offenders rehabilitation. These two observations appear to suggest, that restorative justice seeks to restore individuals; the victim who is injured and the offender who has caused harm. This focus on individuals seems to have two components. First, the victim is given “a more powerful voice” through obtaining a level of control over the ‘justice outcome’ and the dialogue that occurs between both parties.[43] As Zehr puts it, crime victims are “elevated to the position of stakeholder in the justice process”.[44] Second, the offender is given individualised treatment aimed at “solving and addressing any underlying problems”.[45] They are encouraged to analyse the chain of circumstances that led to their conduct and purposefully accept liability. Also, offenders are offered rehabilitative help, and with juvenile crime (where this is commonly practised), new skills and values are taught. The emphasis on genuine victim justice-seeking and the tailored rehabilitative care for the offender appears to be absent from the retributive process.
The focus on Relationships
Second, restorative justice seeks to reconcile parties and restore relationships affected by offending. Conversely, retributive justice seeks to determine guilt and impose punishment, not repair or restore relational harm.[46] Broughton agrees, stating that restorative justice is “justice-making in which the relationships of people…are integral to ‘making things right’”.[47] This focus on relationship building between the victim, offender and community, although criticised for being therapeutic,[48] seeks to bring healing to all parties. Important to the restorative process is the need for agreement (around desired outcomes), understanding (or shared value-consensus)[49] and forgiveness. Acorn thinks that the forgiveness fostered within restorative justice programs is merely sentimental love and compulsory compassion.[50]However, Fiddes argues that genuine forgiveness is the primary value we seek to ‘maximize’ in the process of restorative justice.[51] Despite these disagreements, the advocation of restorative measures, elevation of personal relationship and pursuit of victim-offender forgiveness are important facets. Components that appear absent in retributive justice.
The focus on Community
Third, restorative justice considers an offence as a violation against the community, not just the law.[52] Therefore, restorative justice seeks to allow for the active participation of communities in the mitigation of offences (this may include friends, family and the wider community). In Van Ness’s words, “proceedings should not be dominated by the government to the exclusion of others”.[53] This move away from traditional systems of justice differs largely from retributive justice, where an important factor in sentencing is the unilateral imposition of punishment by a third party (usually a judge or police officer). This focus on community appears to have many communal and societal benefits. For example, community participation may help to foster amicable expressions of conflict, develop tolerance and inclusivity and strengthen conflict prevention and resolution capacity.[54] However, “a fundamental challenge for participatory justice, is to find ways to effectively mobilise the involvement of civil society, while at the same time protecting the rights and interests of victims and offenders”.[55] If a balance can be found, community involvement offers alternative ways to deal with offence, options that are not readily available in retributive justice systems.
The focus on Christ
From a theological paradigm, the concept of restorative justice (not retributive justice) appears to be divine and Christological. Broughton, writing from a theological perspective, “insists that the life and teaching of Jesus show that the divine character and the nature of divine purpose in the world are restorative, not punitive”.[56] He roots this theological theme in Jesus’ crucifixion, through which Christ offers “restorative justice to the offender through his open arms, symbolizing the primacy of grace”.[57] This focus on Christ’s restorative nature, in contrast to retribution, is also emphasised by Cannon. She suggests that retributive justice is an Old Testament concept and one that Jesus reformed.[58]Instead, forgiveness becomes the Christological response to wrongdoing. Marshall agrees, stating “God’s justice is a redemptive power that…puts right what is wrong and restore relationships to their proper condition”.[59] Observations such as these have direct consequences for the individual Christian and church. They suggest that Christians and churches should be “vigorous supporters of judicial and penal reform in a restorative direction”[60] and advocate for nonviolent responses to wrongdoing that centre on repentance and forgiveness.[61]
In addition, although this paper follows the direction of restorative justice research (that seems to favour the contrast between restorative and retributive justice) the differences between restorative justice and other models are also apparent, namely, distributive and procedural justice. Distributive justice differs from restorative justice in two main ways: (1) the focus is primarily on resources, not people as is seen in restorative justice and (2) those receiving resources are not considered on an individualised case-by-case basis[62] (something restorative justice adopts as a fundamental tenet). Similarly, procedural justice differs from restorative justice in two main ways: (1) the preoccupation with procedures (over the outcome of justice) appears opposite to the principles of restorative justice, where justice for a victim is the primary driver[63] and (2) procedures that grant voice, dignity and respect are not individualised to a person’s particular needs (as is observed in the programs of restorative justice). Differences such as these appear to favour a restorative justice approach. However, research suggests that restorative justice programs can at times leave “victims unsatisfied and offenders unchecked”.[64] Therefore, a mixed-method approach to justice may be helpful, where restorative justice can be used in conjunction with tougher enforcement measures.
Conclusion
Restorative justice appears to differ from other models of social justice. This paper has sought to understand these distinctions by answering the question ‘What is restorative justice and how does this differ from other models of justice?’. First, the paper defined three alternative models of social justice, namely, distributive, procedural and retributive. Literature suggests that distributive justice involves the adequate distribution of resources, procedural justice addresses the ‘fairness’ of procedures and retributive justice ensures adequate punishment for offences. Second, restorative justice was examined in greater detail and was found to involve the collective resolution of offences by the victim, offender and community. Also, the use of various mediated restorative justice programs that move people toward restitution, reparation and reconciliation was found to be common. Theological reflection supported the restorative justice notion that offending not only breaks the law but primarily it impacts individuals, relationships and communities – a foundational idea that differentiates it from other models of justice. Third, four differences between restorative and retributive justice were offered alongside a brief description of differences to other models (distributive and procedural). This paper suggested that the: individualised consultation and treatment of victim and offender, focus on relational repair, the participation of wider communities and emphasis on Christ centred values differentiates restorative justice from retributive. Also, the lack of personalised processes and the preoccupation with procedures distinguished restorative justice from distributive and procedural justice. It is likely that victims find justice in different ways, and although the restorative approach to justice seems to be favourable, a mixed-method approach may also prove valuable.
[1] Edward Clinton Gardner, Justice and Christian Ethics (Cambridge: Univ. Pr., 2010), 1.
[2] Christopher D. Marshall, “Restorative Justice,” in Religion Matters: The Contemporary Relevance of Religion, ed. Paul Babie and Rick Sarre (Singapore: Springer, 2020), 1.
[3] Clara Sabbagh and Manfred Schmitt, eds., Handbook of Social Justice Theory and Research (New York: Springer, 2016).
[4] Mae Elise Cannon, Social Justice Handbook: Small Steps for a Better World, Bridge Leader books (Downers Grove, Ill: IVP Books, 2009), 36.
[5] Samuel Fleischacker, A Short History of Distributive Justice (Cambridge, Mass: Harvard University Press, 2004), 4.
[6] Nicholas Rescher, Fairness: Theory & Practice of Distributive Justice (New Brunswick, NJ: Transaction Publishers, 2002).
[7] Stephen C. Wright and Gregory D. Boese, “Meritocracy and Tokenism,” in International Encyclopedia of the Social & Behavioral Sciences (Second Edition), ed. James D. Wright (Oxford: Elsevier, 2015), 239–245.
[8] Morton Deutsch, Peter T Coleman, and Eric C Marcus, The Handbook of Conflict Resolution Theory and Practice (New York, NY: John Wiley & Sons, 2011).
[9] Celia M. Gonzalez, Tom R. Tyler, and Tom R. Tyler, “Why Do People Care about Procedural Fairness? The Importance of Membership Monitoring,” Distributive and Procedural Justice, 91.
[10] “Procedural Justice,” In Obo in Criminology, accessed April 20, 2020, https://www.oxfordbibliographies.com/view/document/obo-9780195396607/obo-9780195396607-0241.xml.
[11] Sabbagh and Schmitt, Handbook of Social Justice Theory and Research, 219.
[12] Tom Tyler, “Procedural Justice and Policing: A Rush to Judgment?,” Annual Review of Law and Social Science 13, no. 1 (2017): 29–53.
[13] Lorraine Mazerolle et al., “Procedural Justice and Police Legitimacy: A Systematic Review of the Research Evidence,” Journal of Experimental Criminology 9, no. 3 (September 2013): 246.
[14] Sabbagh and Schmitt, Handbook of Social Justice Theory and Research, 237.
[15] Cannon, Social Justice Handbook, 36.
[16] Michael Wenzel et al., “Retributive and Restorative Justice,” Law and human behavior 32 (2007): 375.
[17] Ian Mckee and N. Feather, “Revenge, Retribution, and Values: Social Attitudes and Punitive Sentencing,” Social Justice Research 21 (2008): 138–163.
[18] Peter Strelan, “Retributive Justice,” in The SAGE Encyclopedia of Political Behavior (Thousand Oaks,: SAGE Publications, Inc., 2017), 1.
[19] Wenzel et al., “Retributive and Restorative Justice,” 375.
[20] Jeff Latimer, Craig Dowden, and Danielle Muise, “The Effectiveness of Restorative Justice Practices: A Meta-Analysis,” The Prison Journal 85, no. 2 (June 2005): 127–144.
[21] Heather Strang, “Experiments in Restorative Justice,” in Regulatory Theory, ed. Peter Drahos, 1st ed. (ANU Press, 2017), 484.
[22] Howard Zehr, Changing Lenses: A New Focus for Crime and Justice (Scottdale, Pa: Herald Press, 2005).
[23] Tony F. Marshall, “The Evolution of Restorative Justice in Britain,” European Journal on Criminal Policy and Research 4, no. 4 (1996): 37.
[24] United Nations Office on Drugs and Crime, Handbook on Restorative Justice Programmes (New York: United Nations, 2007), 6.
[25] Declan Roche, “Dimensions of Restorative Justice,” Journal of Social Issues 62, no. 2 (2006): 217.
[26] Gerry Johnstone and Daniel W. Van Ness, eds., Handbook of Restorative Justice (Cullompton ; Portland, Or: Willan, 2007), xxi.
[27] Sabbagh and Schmitt, Handbook of Social Justice Theory and Research, 257.
[28] Johnstone and Van Ness, Handbook of Restorative Justice, xxi.
[29] Jeff Latimer and Steven Kleinknecht, “The Effects of Restorative Justice Programming: A Review of the Empirical (RR2000-16e),” Department of Justice Canada, Research and Statistics Division (2000).
[30] Ivo Aertsen et al., “An Adventure Is Taking off. Why Restorative Justice: An International Journal?,” Restorative Justice 1, no. 1 (June 15, 2013): 1–14.
[31] Latimer, Dowden, and Muise, “The Effectiveness of Restorative Justice Practices.”
[32] United Nations Office on Drugs and Crime, Handbook on Restorative Justice Programmes, 8.
[33] Marshall, “Restorative Justice.”
[34] Geoff Broughton, “Restorative Justice: Opportunities for Christian Engagement,” International Journal of Public Theology 3, no. 3 (January 1, 2009): 310.
[35] Luke 15:11-32
[36] Christopher D Marshall, “Offending, Restoration, and the Law-Abiding Community: Restorative Justice in the New Testament and in the New Zealand Experience,” Journal of the Society of Christian Ethics 27, no. 2 (2007): 7–8.
[37] Ibid., 10.
[38] Ibid.
[39] Daniel W. Van Ness, “New Wine and Old Wineskins: Four Challenges of Restorative Justice” (1993): 259.
[40] Sabbagh and Schmitt, Handbook of Social Justice Theory and Research, 257.
[41] Latimer and Kleinknecht, “The Effects of Restorative Justice Programming: A Review of the Empirical (RR2000-16e),” 6.
[42] Wenzel et al., “Retributive and Restorative Justice,” 375.
[43] United Nations Office on Drugs and Crime, Handbook on Restorative Justice Programmes, 90.
[44] Howard Zehr and Barb Toews, eds., Critical Issues in Restorative Justice (Monsey, N.Y. : Cullompton, Devon, UK: Criminal Justice Press ; Willan, 2004), 6.
[45] United Nations Office on Drugs and Crime, Handbook on Restorative Justice Programmes, 8.
[46] Heather Strang, “Restorative Justice Programs in Australia : A Report to the Criminology Research Council,” 2001.
[47] Broughton, “Restorative Justice,” 304.
[48] Howard Zehr, “Evaluation and Restorative Justice Principles,” New Directions in Restorative Justice: Issues, Practice, Evaluation (2005): 296–303.
[49] Wenzel et al., “Retributive and Restorative Justice,” 375.
[50] Annalise E Acorn, Compulsory Compassion: A Critique of Restorative Justice (Vancouver: UBC Press, 2004).
[51] Paul Fiddes, “Restorative Justice and the Theological Dynamic of Forgiveness,” Oxford Journal of Law and Religion 5 (February 1, 2016): 1.
[52] Johnstone and Van Ness, Handbook of Restorative Justice.
[53] Ness, “New Wine and Old Wineskins,” 259.
[54] Johnstone and Van Ness, Handbook of Restorative Justice.
[55] United Nations Office on Drugs and Crime, Handbook on Restorative Justice Programmes, 2.
[56] Broughton, “Restorative Justice,” 310.
[57] Broughton, “Restorative Justice,” 318.
[58] Cannon, Social Justice Handbook, 36.
[59] Christopher D. Marshall, Beyond Retribution: A New Testament Vision for Justice, Crime, and Punishment, Studies in peace and scripture (Grand Rapids, MI: William B. Eerdmans Pub, 2001), 93.
[60] Marshall, “Offending, Restoration, and the Law-Abiding Community: Restorative Justice in the New Testament and in the New Zealand Experience,” 5.
[61] Geoff Broughton, “Restorative Justice and Jesus Christ: Why Restorative Justice Requires Holistic Christology” (2011): 89.
[62] Although ‘rules’ such as equality, need and equity govern distribution, a recipient’s particular circumstances are not usually accounted for
[63] Broughton, “Restorative Justice,” 306.
[64] Roche, “Dimensions of Restorative Justice,” 235.