Beyond the boxes, to the heart: ‘Thou shalt not harm another’

What’s in a name? That which we call a rose
By any other name would smell as sweet.

William Shakespeare

Are punishment and restoration necessarily mutually exclusive or can they overlap and therefore be in line with each other? This discussion was introduced by Christian Gade and Tim Chapman and then continued through responses to it by Vincent Geeraets, Ivo Aertsen and Bas van Stokkom, among others (Tijdschrift voor Herstelrecht). In a sense, the reflections form a continuation of the discussion started by Antony Duff and Lode Walgrave over 20 years ago (see, among others, Walgrave, 2001; Duff, 2002). In it, Duff takes the position that restoration is an alternative, albeit (potentially) better, more constructive or meaningful form of punishment (punishment and restoration overlap), while Walgrave defends the position that restoration is an alternative to punishment (punishment and reparation are mutually exclusive). These two opposing positions are now held by Gade and Chapman respectively.

This discussion will probably never reach a jointly supported final agreement — and that is a good thing. In a truly enlightened debate, including on criminal law, there is room for abrasive and conflicting visions, for only in this way can theory and practice continue to evolve. Realising a point omega would remove all dynamism and only lead to rigidity in the sense of dogmatism and totalitarianism. Following the relational view of law as formulated by the legal scholars Foqué and 't Hart (1990), concepts of law should remain open, including the concepts of punishment and restoration. Each author sheds his or her light on the issue and thus contributes to the debate. I myself have expressed my views on the concept of punishment and restoration several times in the past (see Claessen, 2010; Claessen, 2012; Claessen, 2020; Claessen, 2023). In this contribution, I mainly want to raise a number of issues in response to the contributions of the aforementioned authors. This will show that my own view remains unchanged for the time being. However, I am aware that I too do not hold the truth or have the final say. It should be noted that I respond to the original Dutch contributions; when I respond to an English translation that differs in content from the Dutch contribution, I will explicitly note this.

First of all, it struck me on reading the contributions that not only Gade but also Van Stokkom gives the impression that (mainly) restorative justice thinkers conceive of punishment at its core as the intentional infliction of suffering and place it diametrically opposed to restoration — as if it were a different paradigm. In this regard, Gade refers to Howard Zehr, Van Stokkom to Walgrave. Gade speaks of a ‘caricature’ in this context (Gade, 2023, p. 48), while Van Stokkom finds the narrowing of punishment to the intentional infliction of suffering ‘contrived,’ as he argues, following Gade, that there are ‘many other definitions of punishment’ to be given (van Stokkom, 2023, p. 77). I will come back to the question of whether this definition of punishment is indeed a caricature and artificial, but first I would like to point out that the definition ‘punishment is the intentional infliction of suffering’:

1. has been established long before the explicit emergence of restorative justice, and
2. is endorsed by most criminal justice thinkers to this day.

Without wanting to open a whole bookcase here as ‘proof’ of both propositions (see Claessen, 2010, chap. 3), I point here to ‘the standard concept of punishment’ as formulated by the influential British legal philosopher Herbert Hart. Hart defines punishment on the basis of the following five cumulative ‘elements’:

1. it must involve pain or other consequences normally considered unpleasant;
2. it must be for an offence against legal rules;
3. it must be of an actual or supposed offender for his offence;
4. it must be intentionally administered by human beings other than the offender and
5. it must be imposed and administered by an authority constituted by a legal system against which the offence is committed (Hart, 1968, pp. 4--5; see also Claessen, 2010, p. 125).

Elements 1 and 4 together already show the ‘intentional-suffering’ nature of punishment.

Gade and Van Stokkom are right when they argue that other definitions of punishment are possible, but as far as I know, these alternative definitions often come from restorative justice thinkers, starting with Herman Bianchi. In his Ethiek van het Straffen (Ethics of Punishing), Bianchi speaks of punishment as ‘unwillingness to give in to crime, unwillingness to give way to the tendencies towards causing harm in this world,’ now that straf (punishment) etymologically means nothing other than stijf (rigid) in the sense of ‘non-retreat, intransigence and steadiness’ (Bianchi, 1964, p. 17). In his later work, however, Bianchi turns against punishment because, also in his view, it has acquired the negative connotation of the intentional infliction of suffering. Instead of striving for a different, restorative content of the concept of punishment, he too, in his fight for restorative justice, chose to contrast punishment and restoration, since punishment in the sense of the intentional infliction of suffering is something essentially different from restoration in the sense of Wiedergutmachung (Bianchi, 2010, p. 21). According to Louk Hulsman, that other great Dutch restorative justice pioneer, ‘real’ punishment presupposes not only personal responsibility but also agreement between parties (Hulsman, 1986, pp. 76--77). However, Hulsman too ultimately argues for the abolition of punishment, since it involves nothing more than

activities of a series of state organisations … aimed at inflicting suffering, without the consent of those directly involved (Hulsman, 1986, p. 76).

In other words, criminal law is neither really about taking responsibility nor about consultation between parties to give substance to how responsibility can be taken — and so we would better say goodbye to it.

In his essay De straf: een oergevoel in de wijsvinger (Punishment: a primal feeling in the index finger), Dutch criminologist Peter Hoefnagels states:

… let us start from the primal feeling that there is something in us that makes us want to slam someone for certain behaviour, get rid of them, isolate them, lock them up, hurt them, kill them. … As a criminologist, I can now say and sincerely believe that you and I should not do that … because it is counterproductive for society, the other person and ourselves — and I can usually prove it — but I do not believe that you and I have a fraction less need for punishment as a result. … Punishment is deeply ingrained in people (Hoefnagels, 1974, pp. 39–41).

Although to my knowledge not every human being, after being wronged, always has, let alone continues to have, a need for punishment, Hoefnagels does aptly describe what that need for punishment is, when it arises, namely: to want to give the offender literally or figuratively ‘a thrashing.’ The original basis of (the need for) punishment is therefore — via (the urge for) retribution — (the lust for) revenge (see, among others: Knigge, 1988, pp. 8, 13--15; 't Hart, 1997, p. 115; Claessen, 2010, pp. 134--138; Kelk and de Jong, 2023, pp. 1, 9--10). Hoefnagels — and this seems to be overlooked by many legal scholars when they cite this essay in order to legitimise punishment — points out that ‘our primal feeling index finger’ is out of balance, because:

It was only after the development of the state and its power that a retribution arose that is not aimed at restoration, but at doing back for the sake of doing back itself. Retribution used to mean: to compensate, to make amends, to give wages for. And [the] Van Dale [dictionary] still calls it that. But the word retribution has … developed for the worse. Our living language here reveals no progress compared to Old Testament times. … Since power centralised, since the organisation of the reaction to deviant behaviour, through the state, we no longer let people make up for what they did wrong. No, the ruler took over. And how. The ruler does not heal. He retaliates (Hoefnagels, 1974, pp. 56--58).

It is as if I am hearing Bianchi speak.

Is criminal law practice ready for a concept of punishment in which the intentional infliction of suffering plays no role, or at least no longer predominates? Hoefnagels was not optimistic about this:

In academia, people have been hammering on the anvil of the humanisation of punishment for over a century. … But it does not help. … Most judges and public prosecutors know remarkably little about the results of criminological research. Besides, what does it help? You can talk about purposeful punishment, but if you are a vanuiter, that is, if you react from … your primal feeling, even if you use efficiency terms, you still remain a vanuiter (Hoefnagels, 1974, pp. 40--41).

Has so much changed in the past half century that criminal law practice is now ready for the introduction of a more humane concept of punishment? Van Stokkom believes so, now that

(t)he time when criminal judges focused only on retribution and deterrence is (far) behind us’ [and] … criminal judges and public prosecutors adopt a problem-oriented approach

and, partly for that reason,

place great importance on the question of what can be achieved with a variety of punishments (van Stokkom 2023, pp. 78, 80; see also Van Stokkom’s English contribution, paragraph 1).

Certainly, in the meantime, community service has been added to the arsenal of punishments as a possible alternative to (short-term) imprisonment, all kinds of special conditions that are (partly) aimed at resocialisation and restoration can be attached to (partly) suspended sentences, and treatment is possible in the context of several criminal measures. However, at its core and as a rule, criminal law (read: penal law) is still about punishment in the sense of ‘giving the offender a thrashing.’ Van Stokkom’s picture is far too optimistic for me, while his comparison with educational punishment in the home and school context that focuses on ‘taking responsibility,’ ‘making amends’ and ‘moral learning’ is not convincing in my opinion: that context is significantly different from the criminal law context, especially among adult offenders (Van Stokkom’s English contribution, paragraph 3). Just take a look at the sentencing guidelines and sentencing orientation points of the Public Prosecution Office or the criminal courts respectively. For each offence listed therein, there is a certain ‘starting rate’ that can hardly be considered a good starting point for customisation. After all, that starting rate constitutes nothing more than the expression of retribution and deterrence (Claessen, 2022a, p. 116). Of course, in a concrete case, ‘pluses and minuses’ can be applied based on the person of the defendant and the circumstances of the case, but that margin does not appear to be particularly large in practice. The large group of offenders sentenced to short-term detention in the Netherlands — on the basis of the aforementioned guidelines and orientation points — is illustrative of the fact that a truly meaningful response to crime is often lacking (Claessen et al., 2023). Once more I quote Hoefnagels, now that his words have once again lost none of their topicality:

Imprisonment is … for a wider group, [while] the general trend of scientific research is: … damages and fines are far preferable to imprisonment (Hoefnagels, 1974, pp. 40--41, 43).

We now know that the same is true of community service. Yet, among adult offenders, imprisonment is still the most commonly imposed punishment in the Netherlands. So, there is more customisation (possible) than fifty years ago, but that customisation is too often and too much in the periphery, now that retribution and deterrence still dominate. Also, I doubt that the number of vanuiters among public prosecutors and criminal judges is smaller than before. I would like to believe otherwise, but practice is largely sobering.

In short, punishment can mean something other than the intentional infliction of suffering, but for a long time punishment has stood for the intentional infliction of suffering, and that definition is used by most criminal and restorative justice thinkers (see also Aertsen, 2023, p. 67). Nevertheless, Gade and Van Stokkom argue for a different concept of punishment. Since I cannot fathom Gade’s concept of punishment properly, I focus in the following on Van Stokkom’s more concrete proposal. In his original Dutch contribution, he advocates ‘a more constructive conceptualisation’ and then defines punishment as:

an imposed obligation that contributes to achieving restoration or self-restoration (behavioural change). The restoration efforts that the offender has to make are considered a conscious infringement of his freedoms (van Stokkom, 2023, p. 77).

I can go a long way with the content of this proposed response to crime, but I do have two fundamental objections.

1. The obligation to restore of which the first sentence speaks constitutes a restorative sanction that fits entirely within a maximalist or consequential restorative justice; in my view, this restorative sanction is not a punishment (Claessen, 2012; Claessen, 2020; Claessen, 2022b). What is punitive about the order to repair what one has broken? Then any obligation to pay damages in tort law should also be considered punitive — which is rightly not the case. Therefore, it seems that the punitive nature is exclusively enclosed in the second sentence, which brings me to my second objection.
2. In my view, the infringement of the offender’s freedom by his fulfilment of the obligation to restore should not be deliberate; at most, it is an almost inevitable side effect. Why should such an infringement take place in the sense of ‘ought to’ (sollen) instead of ‘must’ (müssen)? In short: in Van Stokkom’s case, the infringement of the offender’s freedoms takes place deliberately, this is the punitive element and for that reason, there is a punishment.

He refers to Mireille Hildebrandt’s concept of punishment. According to her, punishment is:

1. a deliberate infringement of interests in the sense of rights and freedoms;
2. of a legal norm violator;
3. inflicted by the institutionalised central ruler, being a government;
4. following a legal norm violation;
5. aimed at (re)establishing the authority of the violated legal norm (Hildebrandt, 2002, p. 114).

Although Hildebrandt does not explicitly refer to pain or suffering, it is difficult to maintain that a deliberate violation of the offender’s rights and freedoms has nothing to do with it. In the words of Dutch legal scholar Wim Jonkers:

… the most general content of punishment … can be described as an objective harm that is normally also subjectively experienced as suffering (Jonkers, 1999, pp. 163--164).

Similarly, Dutch legal scholar Willem Pompe states:

Suffering is not to be understood here as the grief (subjectively) that the offender experiences about the violation of his freedom, etc. He will feel sorrow, but in principle it comes down to the damage to his goods (objectively), such as freedom, etc. One could express this objective character of the punishment with the word “evil” (Pompe, 1959, p. 8).

At first glance, Hildebrandt’s definition of punishment sounds more civilised, but its content still involves the deliberate harming of the offender, the retribution of evil with evil (Claessen, 2010, pp. 125--127). This is also the case in Van Stokkom’s ‘constructive conceptualisation.’ He apparently considers the punitive element — like Duff — necessary in response to crime. It is precisely by adding this punitive element that the response to crime becomes a punishment. However, this punitive element is not necessary at all. On the contrary, it is morally reprehensible and should therefore be avoided as much as possible — by focusing on restoring the damage by the offender towards the victim and the community. And then, in my view, there is no punishment, but restoration. In addition, the infringement of the freedoms and the suffering that compliance with the obligation to restore entails for the offender as a side effect, as well as the obligation to restore itself, must be proportionate and, above all, reasonable and fair.

Furthermore, in my view, there are ‘contradictions’ in Van Stokkom’s ‘restorative concept of punishment’:

The punisher imposes obligations and in doing so, he intentionally infringes on the freedoms of the person who is found guilty. That intervention is the punitive aspect of punishment. In reality — regardless of the punisher’s intention — the burden imposed will be perceived as something unpleasant. The punisher should ensure that that burden is a bearable by-product of a desirable good, namely, providing restoration to the victim (van Stokkom, 2023, p. 81).

On the one hand, there is — linked to the punisher’s intention — the infringement of the offender’s freedoms as an objective (‘the objective evil’), and on the other hand — separate from the punisher’s intention — there is the burden of ‘something unpleasant’ (read: pain and suffering) as a by-product or side effect (‘the subjective evil’). However, these are normally two sides of the same coin, making the distinction artificial. But more importantly, this restorative punishment definition is about restoration (‘satisfaction’) towards the victim (and the community?) via deliberately harming the offender. Although Van Stokkom argues, following Pompe and Duff, for a ‘meaningful punishment trajectory’ aimed at ‘developing a sense of responsibility’ and ‘guilt redemption’ as well as, following Walgrave and myself, for making ‘restorative efforts … to compensate victims and society’ (van Stokkom, 2023, p. 82), this does not really come into its own, as attention to ‘the constructive part’ is distracted by the focus on ‘the destructive part,’ namely: the deliberate infringement of the offender’s freedoms. Retribution of evil with evil cannot be reconciled with retribution of evil with good, no matter how subtle the attempt. It is the preservation of the punitive aspect that makes me unable to follow Van Stokkom’s concept of punishment.

In his English contribution, Van Stokkom seems to take a slightly different course with regard to his ‘restorative punishment concept’; there seems to be advancing insight. He now makes a plea for punishment as ‘a discomforting obligation to make amends’ and ‘an intentional discomforting intervention that encourages a sense of responsibility.’ The focus now seems to be on ‘taking responsibility,’ ‘making amends’ and ‘moral learning,’ while the intervention should be ‘non-harmful’ and ‘non-afflictive.’ According to Van Stokkom, it is possible ‘to define punishment as a ‘non-harmful,’ albeit still ‘discomforting,’ response to the offender.’ The ‘discomfort’ consists on the one hand of the confrontation of the offender with the harmful consequences of his or her act for the victim and society and on the other hand of the execution of the repair tasks and/or self-reform tasks. The intention of the punisher is limited to ‘infliction of discomfort.’ At the same time, however, the intervention does have ‘punitive aspects’ consisting of the fact that the punisher imposes ‘an obligation and thereby restricts the freedom of the person found guilty.’ In short: Van Stokkom is now concerned with the imposition of an intervention that primarily concerns ‘taking responsibility,’ ‘making amends’ and ‘moral learning,’ while this intervention is non-harmful and non-afflictive but still (intentional!) discomforting and punitive. In Van Stokkom’s view, this restorative punishment concept is the ideal punishment concept. Although I can better follow Van Stokkom’s ideas in his English contribution, I am still not convinced.

1. My first question: why should this intervention be called punishment? For me, this intervention is a restorative sanction.
2. My second question: what exactly is the difference between ‘harmful,’ ‘afflictive’ and ‘discomforting’ — and how are these concepts related to ‘suffering’? For me, these concepts largely overlap and I don’t like ‘word games.’
3. My third and final question: why should it be ‘an intentional discomforting intervention’? Why isn’t discomfort (or suffering) simply seen as an almost inevitable side effect of a restorative sanction?

It is interesting that Van Stokkom raises the question of whether imprisonment and fines meet his ideal punishment concept. The answer is simple: no, they don’t. Nevertheless, these are still the most commonly imposed punishments in criminal law, especially among adult offenders, which brings me back to the question of whether practice is ready for ‘civilising criminal punishment’ in a restorative way. It does not appear to be so, as I have already explained in the foregoing.

Unlike Gade and Van Stokkom, I see no point in redefining punishment as long as it directly or indirectly contains the retribution of evil with evil. And even if punishment were to be redefined in such a restorative way that in it the retribution of evil with good would be the starting point, I see little point in it, because practice is not ready for it. The risk that the penal justice system will erode and ‘corrupt’ restorative justice is, in my view, life-threatening. In Chapman’s words:

I fear … that Gade’s advocacy will lead to the demise of restorative justice. … we’d better offer something else (Chapman, 2023, p. 53).

For the time being, it is better to bring criminal justice and restorative justice together where necessary and possible and align them, but not merge them. This is also how Aertsen seems to think, when he acknowledges that ‘some form of cooperation … is necessary,’ but at the same time warns against ‘institutionalisation’ in the sense of ‘co-optation,’ in which ‘the original restorative justice values are in danger of being compromised’ (Aertsen, 2023, p. 70). The implementation of mediation in criminal cases in the Netherlands provides a good example of cooperation but not co-optation, or worse: submission. Mediation in criminal cases and the criminal process remain distinct processes (different games with their own rules) but are not entirely separated, as the public prosecutor or the criminal judge must take a successful mediation into account when imposing a sanction. As yet, the dialectic between punishment (as thesis) and restoration (as antithesis) has not led to a solid synthesis, with which practitioners can and want to work.

Had I become well-nigh convinced otherwise, the following passage in Gade’s contribution would have awakened me from my slumber:

It is important for the restorative justice movement to recognise that there is a widespread call to punish crimes. … We must be careful not to become a club that is out of step with views of the general public (Gade, 2023, p. 49).

This quote reminds me of what a colleague recently said to me somewhat tantalised: ‘If you think retribution is outrageous, then I can tell you that it is completely legitimate.’ By retribution, this colleague quite clear meant the intentional infliction of suffering. And that is exactly what ‘the general public’ means by it, scholars, practitioners and politicians included. I think it is an ominous sign that the vast majority of criminal law scholars seem to be either not open to or no longer interested in the question of whether punishment in the sense of the intentional infliction of suffering for the purpose of retribution is morally permissible. Nevertheless, history is full of prominent thinkers who rejected retribution for good ethical reasons, from Plato to Martha Nussbaum. Punishment, in their view, is permissible only for prevention, as a ‘necessary-evil’ measure. The intentional infliction of suffering is then neither a deserved evil nor an end-goal but a means to realise special and/or general prevention. Even though a lot can be haggled over in terms of prevention thinking (after all, if the effects are measurable at all, punishment often turns out not to be as effective as thought), special prevention thinking is also, in my view, the only right reason to punish, provided that the goal:

1. cannot be realised in other, less drastic ways,
2. is proportionate to the means and
3. is actually achieved.

Strict application of these conditions automatically leads to punishment as a last resort, which leaves ample room for something else: restorative justice (Claessen, 2023).

Gade adopts an consequentialist perspective: in his view, restorative justice deserves support only insofar as it (potentially) achieves better results in terms of victim satisfaction, recidivism reduction and cost savings. See here already the erosion and ‘corruption’ that lurk when restorative justice is incorporated into the straitjacket of the criminal justice system. This was rightly criticised in other contributions (Chapman, 2023, p. 52; Aertsen, 2023, p. 72). The author who most comprehensively denounces Gade’s consequentialist perspective is Geeraets. Although he recognises that prominent restorative justice thinkers such as Braithwaite and Walgrave employ a consequentialist argumentation in which the repair of damage is the goal, it occurs to him that restorative justice thinkers are primarily concerned with ‘dealing decently with crime, treating both offenders and victims with respect’(Geeraets, 2023, p. 61). In his conclusion, he writes:

The mission of restorative justice is to provide a civilised response to crime, where all parties can count on respect. … what restorative justice thinkers really care about is: offering a humane response to crime that allows for reconciliation’ (Geeraets, 2023, p. 65).

When I read these words, the question arises for me: do most criminal justice thinkers not aim for a decent, civilised and humane response to crime? Without further elaboration of these terms, restorative justice hardly distinguishes itself from other responses to crime.

Moreover, I consider Geeraets’ separation between justice on the one hand and decent, civilised and humane responses to crime on the other to be artificial and unjustified (Claessen, 2022a, p. 113). According to Geeraets, restorative justice is primarily characterised neither by a consequentialist argumentation, in which it is about the good or bad consequences of behaviour, nor by a deontological argumentation, in which behaviour in itself is good or bad. But isn’t it just the other way around: isn’t restorative justice instead characterised by both consequentialist and deontological argumentation? In other words, isn’t restorative justice both instrumental and principled? I myself follow Walgrave when he posits the restoration of harm as the primary objective of restorative justice. Restoration of harm is the intended outcome that is best achieved through restorative procedures, including mediation and conferencing. In my view, these restorative procedures are not only the ideal means to achieve the restorative goal, but are also themselves expressions of restorative justice (sic!). In addition, restorative justice thinkers like Walgrave and I reject the intentional harming of the offender and the deliberate adding of suffering to the offender as immoral. Unlike German philosopher Immanuel Kant who derives the duty to retribution from his categorical imperative, I derive the categorical rejection of retribution from the Golden Rule: ‘Treat others as you would like to be treated yourself’ (Claessen, 2022b, p. 16). I align myself with Scottish philosopher David Hume according to whom morality is not rooted in ‘rational argument, … but in sympathy’ (Baggini, 2018, p. 83). German philosopher Arthur Schopenhauer takes the same view; where Hume speaks of sympathy, he speaks of Mitleid (compassion). Schopenhauer links this feeling to what he calls ‘the better consciousness,’ a spiritual consciousness from one experiences interconnectedness instead of separateness. From this he then derives his own categorical imperative:

Harm no one, on the contrary, help everyone, as much as you can (Schopenhauer, 2010, p. 120, 138; Claessen, 2011).

I completely follow my favourite philosopher on this point. As far as the moral rejection of retribution is concerned, I can also do very well with the Socratic-Platonic method of question and answer to arrive at moral knowledge. In his work on the state, Plato has Socrates enter into a conversation with Polemarchos on the question of what constitutes good behaviour. After an extensive ‘Q&A-session,’ Plato has Socrates conclude as follows:

We therefore conclude that a person does not behave well if, as a result of his behaviour, another person suffers badly, even if that other person is an enemy. … So if someone says that good behaviour means treating one’s fellow human beings according to what they deserve, and if for him this then means that a man ought to treat his enemies badly, he thereby shows a lack of insight, for we observe that it can never be good to treat anyone badly’ (Plato, 2005, p. 22).

Both ‘routes’ — Hume-Schopenhauer’s and Socrates-Plato’s — lead to the moral rejection of retribution and fit well with what British philosopher Julian Baggini writes:

Our moral beliefs are closely linked to how we perceive the world, and skewed perception can lead to skewed morality. Wrong beliefs lead to bad ethics. … Our moral judgements have weight only if they are consistent with the facts about both human nature and the world’ (Baggini, 2018, pp. 85, 87).

Another word on a consequentialist argumentation in the context of restorative justice: in the foregoing, I wrote that, in my view, special prevention is the only right reason to punish, provided a number of conditions are met and that strict application of those conditions automatically leads to punishment as a last resort, which leaves ample room for something else: restorative justice. Because, what does restorative justice show? Grosso modo, it appears to lead to better results in the prevention of new crime than criminal law (Sherman and Strang, 2007; Shapland et al., 2008; Strang et al., 2013; Sherman et al., 2015). This applies not only to conferencing but also to mediation (van Dijk, 2024). While for myself the principled-deontological argument is paramount — we apply restorative justice because it is good in itself — I cannot ignore the instrumental-consequentialist argument: we apply restorative justice because it leads to good results — also in terms of reducing reoffending rates. For me, these are two sides of the same coin: one recognises the tree by its fruits.

Finally, reconciliation. According to Geeraets, reconciliation constitutes — alongside decency — the driving force behind restorative justice. Although at first glance reconciliation is also in line with a consequentialist argument, Geeraets notes that

most restorative justice thinkers consider the conversation between offender and victim to be valuable in itself, irrespective of outcomes

and that the conversation

has an intrinsic meaning even if the goal of reconciliation is not achieved (Geeraets, 2023, p. 64).

As mentioned, there are restorative justice thinkers who do link restorative procedures to the realisation of the restoration of harm. Harm includes relational harm in addition to material, immaterial and moral harm. The restorative justice thinker who puts reconciliation at the centre of his work is Bianchi. According to him, everything must culminate in justice. When asked what result justice should lead to, he replies:

As the good fruit of justice we consider the reconciliation between people (Bianchi, 1964, p. 37).

Even if reconciliation cannot be posited as a goal, since it cannot be enforced, it does appear to be ‘best’ achieved within the context of restorative procedures.

All in all: while restorative justice is indeed justice-oriented, it fits neither entirely into a consequentialist ethics nor entirely into a deontological ethics. It has features of both, without being limited to either form of ethics.

Restoration can be classified under the concept of punishment; it can also be associated with consequentialist as well as deontological thinking. Everything depends on definitions that indicate the core and boundaries of ‘the boxes.’ In this contribution, I have shown that, in my view, restoration is not the same as punishment, as long as in the latter concept, directly or indirectly, retribution in the sense of battling evil with evil has a place, concretely: the intention of harming the offender. In my view, equating punishment with retribution in the sense of the intentional infliction of suffering — whether in disguised form or not — is anything but a caricature or contrived given current theory and practice. Therefore, I reject punishment for the time being and see restoration as something substantially different and better. Furthermore, I have shown that restorative justice (sic!) is partly consistent with both consequentialist and deontological thinking, and that it primarily does have to do with justice, not just decency. In my view, a criminal law (not a penal law) based on restorative justice can also be called humane, because it puts human beings at the centre and aims at restoring and preserving them through the retribution of evil with good. Incidentally, this form of retribution can be harsh if necessary; consider the intentional infliction of suffering for special prevention as a last resort. The aim here is not to harm the offender but to prevent new harm — including to the offender himself. Returning good for evil involves an awareness and attitude that invariably aims to repair and prevent harm. Beyond all the boxes lies the heart that should be at stake: ‘Thou shalt not harm another,’ because: ‘Treat others as you would like to be treated yourself.’ Whatever a response to injustice that underlies this core is called … the rose will be recognised by its scent.

Jacques Claessen is an Endowed Professor of Restorative Justice and an Associate Professor of Criminal Law at Maastricht University. 
Contact: jacques.claessen@maastrichtuniversity.nl

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