Developing Restorative Justice Jurisprudence

Rethinking Responses to Criminal Wrongdoing

Tony Foley

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317151838
• Edition: 1
• Topic: Jura
• Subtopic: Strafrecht

What are the requirements for a just response to criminal wrongdoing? Drawing on comparative and empirical analysis of existing models of global practice, this book offers an approach aimed at restricting the current limitations of criminal justice process and addressing the current deficiencies. Putting restoration squarely alongside other aims of justice responses, the author argues that only when restorative questions are taken into account can institutional responses be truly said to be just. Using the three primary jurisdictions of Australia, New Zealand and Canada, the book presents the leading examples of restorative justice practices incorporated in mainstream criminal justice systems from around the world. In conclusion, the work provides a fresh insight into how today's criminal law might develop in order to bring restoration directly into the mix for tomorrow. This book will be of interest to undergraduates, postgraduate researchers and lecturers, as well as lawyers who work in the field of criminal law, criminologists, social scientists and philosophers interested in ideas of wrongdoing and criminal justice responses to criminal offending.

PART I

1 Responsiveness The Aims of Institutional Responses to Wrongdoing

DOI: 10.4324/9781315576831-1

Introduction

The conceptual framework of justice employed in this book sees the distribution of benefits and burdens as the core concern of justice, even in situations not traditionally perceived as ‘distributive’. This chapter explores the idea of distributive justice in this particular context of ‘institutional responses to criminal wrongdoing’. From this analysis it develops a set of ‘essential aims’ of such responses as a means of seeking to explain the purposes behind any distributive pattern. The aims developed consider the nature of institutional responses and its influence on the priorities set when dealing with ‘wrongdoing’. It is theorized that there are three general needs that must be addressed in any such response – the need to deliver retribution, the need to achieve restoration and the need to facilitate a set of consequential outcomes. Consistent with the conceptualization of justice as distribution in this guise, it is surmised that these outcomes are best achieved through a process of distribution. The specifics of these ‘harm-related benefits and burdens’ will later be developed from retributive and restorative concepts. A rider to understanding the functioning of these distributions is that they must always strive to be justice-promoting. A means of assessing whether justice is promoted in their distribution will come from the conceptual tool termed the ‘evaluative criteria of justice’ which will allow us to interrogate the distributions developed in this chapter to ask: does this give people their deserts, does it treat them equally, does it protect their rights and does it promote harmonious social relationships between those affected? But first the aims.

The Aims of Responses to Wrongdoing

Influencing Factors

Any response to wrongdoing must address certain discrete objectives, the content of which is influenced both by the institutional means in place to provide them and by the nature of wrongdoing which they address. This section explores the influence that the means of response (referred to loosely as ‘justice system responses’) and the object of the response (namely ‘wrongdoing’) have on determining the essential aims.

Justice system responses

The notion of an ‘institutional response’ is of course a social construct, describing a collection of practices, roles, norms and conventions which structure appropriate behaviour within a particular sphere of activity. ‘Institutions’ provide a collection of rules, formal or informal, that actors generally follow, for normative, cognitive, material or other reasons (North 1990: 3). So, for instance, in the case of institutional responses to wrongdoing, these rules are influenced by what is understood to be an overriding obligation to promote just outcomes. Obligations to deliver just outcomes similarly arise in ‘welfare’ institutions organized to ensure fair patterns of distribution of social or economic goods.¹ But in the case of institutions organized to respond to disputes or perceived injustices, the focus is more explicitly on responding to the ‘wrongness’ of the behaviour and correcting that behaviour (Pettit 1997). Regardless of the particular form of these institutions, these ‘confluences of institutional rules and interactive routines [at work in the correction process] … as well as [their] physical structures’ are seen as designed to influence the reaching of a just response (Young 2006: 111). It is through such ‘structure-constituting behaviour’ that these institutions provide a means by which ‘members of a society effectively force their fellows to limit their actions to a range of acceptable alternatives’, by exercising control and influence over them with a view to preventing or constraining harmful behaviour (Reiman 1990: 213). The institution we know as the ‘criminal justice system’ forms the core institutional response to wrongdoing. This institutional form emphasizes those practices, norms and rules seen as best able to achieve the required goals by applying the values and norms of the criminal law. The result is that even when exercising broader functions, such as preventing crime, maintaining public safety or expressing normative standards, the criminal justice system still retains an explicit focus on delivering justice through the law.

¹ ‘Welfare’ in this sense can be seen as referring essentially to the totality of the happiness and well-being of all persons and particularly to the alleviation of the sufferings of the poor and disadvantaged ( Young 2006). The ‘welfare system’ provides one institutional means of delivering this alleviation.

For Rawls (1985: 233), this ‘correctional institution’ succeeds in facilitating this ‘capacity for [delivering] a sense of justice’ because it gives people drawn into its institutional reach the moral power ‘to understand, to apply, and to act from [and in a manner consistent with certain] standards of justice’. These standards themselves are seen as explicitly stated in the criminal law in the case of responding to wrongdoing. It is by giving people the moral certainty that the criminal justice system promotes lawful behaviour and keeps breaches of that behaviour grounded in justice concerns that the institution retains its legitimacy.

The familiar concept of ‘legal justice’ which is at the heart of this system facilitates the path of using law as its means to do justice and provides for a particular form of response. There are of course other ‘forms’ or ‘means’ of response, often termed ‘non-adversarial justice,’ (King, Freiberg et al. 2009: xi) which move away from the mainstream legal justice response. For instance, a growing alternative form of response is ‘restorative justice’ which in many jurisdictions examined in this book is increasingly co-located within the criminal justice system. In a few of the instances highlighted here, restorative practices fill the wider role as the ‘dominant informal justice movement’ as regards responses to juvenile wrongdoing (Roche 2003: 25).² These different forms of response nonetheless operate under and within overriding criminal justice provisions. Nonetheless, the restorative form of response takes a radically different approach to delivering just outcomes, emphasizing in particular the need to respond to harm in a way that places less emphasis on a strict adherence to legal rules and processes. Both forms of response – mainstream criminal justice practice and emerging restorative justice practice – have clearly distinctive institutional features, but share the same overriding agenda of being ‘concerned with justice’. Criminal justice forms the core of institutional responses to wrongdoing, with restorative justice now gaining a growing institutional foothold. Both institutional forms pursue the aim of responding to wrongdoing in different ways. Each lays claim to keeping its responses grounded in justice concerns and not in concerns with promoting expediency, efficiency or in fulfilling particular moral or political desires, be they meting out revenge or favouring powerful influences. It is this avowed commonality of purpose that provides the first influence on the essential aims – that institutional forms (of whatever kind) which respond to ‘wrongdoing’ profess an overriding emphasis on promoting and championing justice. It is important at the outset to be clear about what is meant by an institutional response to wrongdoing ‘doing justice’. ‘Doing justice’ is used in two distinct but related senses in this book. The first takes it to mean ‘creat[ing] a sensibility that the wrongdoing has been responded to in a just manner’, through morally appropriate behaviour (Shearing and Johnson 2005: 29). The second takes ‘doing justice’ to mean providing those affected by the wrongdoing (its victims, offenders and the wider community) with outcomes seen by them as producing just and proper consequences.³

² While restorative practice is new in the context of Western institutional responses to wrongdoing, it has much older historical roots (Braithwaite 2002b). Alternative Dispute Resolution (ADR) can equally claim to have a dominant informal justice role, particularly in civil matters (Sourdin 2004). Therapeutic jurisprudence which informs the practice of many ‘problem-solving courts’ also has a dominant informal justice role, as a non-traditional judicial response to wrongdoing rather than as a separate informal justice movement (Wexler, Winick et al. 2000). ³ There is some parallel here with the distinction Rawls draws between ‘justifying a particular practice’ and ‘justifying a particular outcome falling under it’. In his famous discussion of punishment, Rawls distinguishes between the justification of morally fitting response behaviour and the justification of morally or socially fitting outcomes, that is to say outcomes with a certain utilitarian value (1955: 4–5). A somewhat similar distinction is made here between the just way people are dealt with in institutional responses and the justness of the outcomes imposed on them and others.

Wrongdoing

As well as the explicit ‘justice’ focus of institutional forms of response to wrongdoing, the very nature of ‘wrongfulness’ will influence what is required in a response. ‘Wrongdoing’ is seen as conduct that is both prohibited, and (at least to some degree) invasive of personal liberty. Feinberg (1984: 31–36) captures this essence nicely when he defines ‘wrongdoing’ as the ‘unjustifiable and inexcusable setback or invasion of the legitimate interests or rights of another’. Such ‘setback to interests’ has as its most distinctive feature the harming of others in ways that are both wrong and rights-violating. In the rare case where there is consent to doing the harm (such as in body contact sports or warfare), this may ‘strip it of its wrongfulness’, but in most cases conduct that is harmful (because of its invasive nature) is also rights-violating. It is this quality of ‘rights violation’ that gives such conduct its particular element of ‘wrongfulness’.⁴ Feinberg’s conception of wrongfulness has been critiqued for underplaying the rights-violation aspect when applied in practice. Stewart, for instance, argues that Feinberg’s conception centres on unjustified intrusions to interests at the expense of the right-violating aspect of these intrusions, when ‘it is supposed to be their combination that produces the distinctive form of harm that is the appropriate target of criminal sanction’ (Stewart 2001: 52). Nonetheless, for our purposes this combination of unjustified intrusions and rights-violation is crucial to an understanding of the ‘wrongdoing’ that gives rise to criminal liability. The requirement for ‘rights-violation’ is a necessary element for criminalization. In simple terms, where certain types of wrongful harm are caused (essentially harm extending beyond conduct which causes merely social hurt, such as most cases of lying) that conduct has been criminalized. Such criminalized behaviour can be distinguished as mala in se – ‘things wrong in themselves’ – or in moral terms things ‘seen as evil’ because of their implicit ‘wickedness’ (Whitman 2003: 34).⁵

⁴ One obvious example of harmful conduct which is not ‘wrongdoing’ is the harm done to opponents in contact sports, which is not ‘wrongful’ provided it remains within permissible limits. Conversely, in other situations the wrongdoing may be such an overriding invasion of personal liberty (slavery, for example) that the rights violation remains even in the presence of ‘consent’ (Kleinig 2009). ⁵ This behavior is distinguished from a wide range of essentially regulatory offences which are criminalized not because they are ‘wrong’ in themselves but simply because they are forbidden for social or regulatory purposes. These mala prohibita – ‘things wrong only in so far as they are prohibited by the state’ (Lacey 2008: 102) – stand outside any explicit notion of wrongfulness but are seen as needing to attract criminal rather than civil penalties to be effective.

Mill’s ‘harm principle’ provides a useful perspective on this conceptualization of wrongdoing. In On Liberty, Mill claims that each individual has the right to act as he or she wishes, with the proviso that their actions do not harm others. In this view, an action which directly harms only the actor himself will not be one in which society should intervene since the requirement of ‘harm to others’ is missing. But as Feinberg points out, the breadth of ‘harm’ to which the harm principle applies is far wider than the purely ‘wrongful harm’ or wrongdoing on which the criminal law focuses (1984: 36). Husak explains the distinction Feinberg makes by distinguishing between what he calls ‘normative’ and ‘non-normative’ harm:

In the ‘normative’ sense of harm, A harms B ‘by wronging B, or by treating him unjustly.’ In the ‘non-normative’ sense of harm, A harms B ‘by [merely] invading, and thereby setting back, his interest.’ (Feinberg 1984: 34; Husak 2008: 91)

It is the normative sense of harm which is the concern of the criminal law. Otherwise, conceivably any result that anyone has ever wanted to prevent and which they felt had set back their interests (for example, being overlooked for promotion) could be construed as ‘harmful’ to that individual and so forbidden (Fletcher 1978: 402). The concern of the criminal law is much narrower than this. It rests with the particular subset of ‘wrongful harm’ which is (often morally and normatively) wrong and which will be ...

Table of contents

• Cover Page
• Half Title Page
• Series
• Title Page
• Copyright Page
• Contents
• Figures
• Preface
• Introduction
• PART I
• PART II
• PART III
• Conclusion Developing Restorative Jurisprudence A Minimalist Approach
• Appendix
• References
• Index