What Place for Punishment?

In this short article, I would like to join the discussion on the concept and role of punishment in restorative justice, as initiated by Christian Gade (2022) and Tim Chapman (2022). Framing the debate within the context of the ‘institutionalisation’ of restorative justice will allow me to clarify the relationship between restorative justice and criminal justice and at the same time to put forward a personal opinion about the role of punishment and the strategic position of restorative justice, building on earlier developed insights (see, amongst other, Aertsen, 2004; Aertsen, 2006; Aertsen, 2022).

The discussion on the institutionalisation of restorative justice is not new. In a book, published as a result of an international seminar held in Leuven in 2004, a group of social scientists presented their observations on the development of restorative justice in various parts of the world (Aertsen et al., 2006). A common thread was the following. One the one hand, a promising perspective was pictured: restorative justice is now grown up, widely available in several countries and more and more accepted at the legislative and political level. On the other hand, a critical concern could be heard: how can restorative justice keep its own values and principles within an institutional environment that is strongly dominated by punitive and security rationalities? This dilemma is certainly very much recognisable for readers of this Newsletter, active in the field of restorative justice, be it as practitioners or researchers. It is also a main concern in the discussion between Gade and Chapman.

Restorative justice initially developed within the context of criminal law, but was searching from the very beginning for an adequate position towards criminal justice and other normative systems in society. The discussion on the fundamentals, the legitimation, the function and possible side-effects of criminal sanctioning has been present all the time. In this article, the concept of ‘punishment’ refers to the deliberate, intentional and legally regulated pain infliction that comes on top of the function of societal disapproval or censure (the latter can include painful or burdensome elements, but does not necessarily imply the intention of pain infliction). This restricted approach does not ignore the many other goals and functions the phenomenon of punishment and the existence of penal institutions can adopt in society.

The debate on a possible penal content of restorative justice processes mainly came to the fore in the late 1990s, when several countries witnessed a break-through of restorative justice programmes after a period of stagnation or hesitant developments. Legislation had helped to make a difference in many countries, often with the support of ‘soft law’ from the Council of Europe with its Recommendation R(99)19 on mediation in penal matters (1999) and the 2000 and 2002 ECOSOC Resolutions on restorative justice from the United Nations. Although the EU Framework Decision of 2001 on the standing of victims in criminal proceedings and the EU Victims Directive 2012/29/EU (2012) have contributed in a more coercive way to the implementation of restorative justice in Europe, it were mainly the above mentioned forms of non-coercive regulation (such as also the Council of Europe Recommendation CM/Rec(2018)8 concerning restorative justice in criminal matters) that have been most influential in determining the scope and principles of restorative justice. These principles do also include the necessarily ‘autonomous’ character of restorative justice vis-à-vis the criminal justice system. In other words, space is offered officially to develop restorative justice in an independent way: it has been accepted that restorative justice has its own finality, where values such as participation, dialogue and redress are paramount. Hence, although restorative justice processes in many countries are closely aligned to formal criminal justice procedures, international regulations insist on their autonomy. At the same time, the same regulations do stress the need of cooperation, be it from an autonomous position. In short, although restorative justice and criminal justice processes can influence each other, international regulations do not adopt, formally or officially, a (classic or other) concept of punishment.

But still, these supranational regulations do not present restorative justice as a right for victims and offenders, and EU member states have not formally been obliged to implement restorative justice. The lack of mandatory implementation is maybe no problem at all: looking back at the young history of restorative justice in Europe and its determining factors, it is good to keep in mind the finding that successful countries where restorative justice has been broadly implemented, all started from a bottom-up approach with small-scale pilot projects beginning at the local level, followed by gradual implementation in other places, and then finally institutionalised by national legislation (Dünkel et al., 2015).

This is all to say that restorative justice, also in European countries, has known an important development, resulting in formal legislation in nearly all EU member states. The latter has not prevented important differences from appearing between European countries, and legislation as one form of ‘institutionalisation’ can be conceived in very different ways in terms of scope and conditions for restorative justice to be applied. Also within countries considerable differences occur. One example of this is Belgium with similar developments later on in The Netherlands where on the one hand, within the framework of the criminal justice procedure and based on the French example, in 1994 the model of ‘penal mediation’ was created and top-down implemented by way of a diversionary approach for less serious offences, and, on the other hand, the model of ‘restorative mediation’ was developed gradually and bottom-up along the criminal justice process to address offences of various nature and degrees of seriousness before resulting in formal legislation in 2005. Moreover, in various countries important discrepancies are shown between restorative justice in the law and restorative justice in practice. There are even countries where restorative justice has found a legal basis without effectuating any practice. A general insight is now internationally speaking that the potential of restorative justice is ‘underused’ considerably, even in countries that have a more or less generalised practice such as Belgium. The challenge is to know how many cases should be dealt with by restorative justice in a country on an annual basis, taking into account the volume of (registered and non-registered) crime and the number of cases that according to the law could be referred to restorative justice programmes.

This should encourage us to reflect and to be clear on what we can or should expect, and what should be avoided in implementation processes. It goes back to our core ideas of restorative justice, and how we want to build it. In this context the process of ‘institutionalisation’ should be looked at more into detail: to find out whether and how certain ideas of restorative justice and restorative values can be secured and promoted, and what place ‘punishment’ can take.

In its sociological meaning, institutionalisation refers to a process of how certain behavioural patterns, because of their recurrent occurrence, become an independent entity or ‘institution’ in society. This could happen with, for example, mediation, if it operates as a steadily growing practice that can count on a collective application, continuity and structure. The new institution then becomes an autonomous regulatory body on itself and by its mere existence it will exercise a form of primary social control. We all feel the relevance and attractiveness of this perspective, at least ideally: restorative justice can be developed in such a way that it becomes its own institution, guided by its original values and principles.

But, there is also another meaning of ‘institutionalisation,’ which refers to an understanding that worries us much more. This is when mediation or other restorative justice practices are not developing into an autonomous institution, but become part of, and dependent of, another, existing institution. The existing structure in our case can be for example a police service, the public prosecutor’s office, the probation service, a juvenile justice agency or a victim assistance service. Restorative justice will be implemented within their structures, which are controlling essential components of the new programme, such as funding, case referrals and staff. In such an institutional and ‘embedded’ context it is almost unavoidable that organisational culture, task perceptions, priorities and importantly considered skills in the ‘host institution’ will heavily influence or determine the self-image of restorative justice practitioners and their working principles and processes, including the selection and referral of cases suitable for restorative justice. Such influences may appear even in a more pronounced way when (less clearly defined) ‘restorative practices’ are being implemented in social settings outside criminal justice, such as schools where specific disciplinary practices prevail. Our understandings of punishment, sanctioning and social control will be shaped by the (institutional) environment where they operate.

In most of our countries we have examples of this type of institutionalisation. In a certain way such developments are not necessarily negative, as they can help to re-orient ‘the system’ from inside. It becomes more problematic however when, for example, the mediation style in a programme run by the police is only focusing on quick financial settlements to be reached under (time) pressure, or when social workers in a juvenile justice agency are struggling with the challenge to give equal attention to the victim. Restricting restorative justice practices just to these formats even when they contain restorative elements may then become missed opportunities.

It is here where the (negative) connotation of ‘co-option’ of restorative justice programmes by existing structures appears: restorative justice processes will unavoidably develop into a direction where they ultimately serve the objectives, priorities and values of the host institution and where original restorative justice values may risk to become dominated. The more we accept within restorative justice practices the presence of punitive elements as Gade is doing the higher the chance that these practices will be situated, accepted and implemented within institutional contexts with a predominating punitive orientation, or where at least a classic concept of punishment in the sense of deliberate pain infliction will not be questioned. The existence, for offenders, of a psychological need or acceptance to be punished does not alter our concern that systems are being reinforced in a punitive sense where this is not needed, or where they become disproportional, or even harmful, for both the offender and society.

In short, theoretically speaking it can go two ways: the phenomenon of ‘institutionalisation’ can be considered as ‘a dynamic process with a constructive social meaning and innovative potential,’ or it can be seen ‘from a restrictive and dependent perspective when new practices are developing under the roof of existing judicial or social structures’ (Aertsen, 2006), considerations which I draw on below. Or is a third way possible?

The dilemma as sketched above is real and recognisable for many working in the field of restorative justice. Restorative justice practitioners find themselves oscillating between two tendencies. On the one hand, we are happy that finally after all these years public and policy acceptance has been obtained, that a legal basis has been established, that funding has been secured, training programmes put into place and restorative justice programmes made available all over the country (to various degrees, depending on the country). On the other hand, we feel limited by actual situations of dependence on judicial frameworks, structures and referrals, where the potential of restorative justice is not realised in terms of real impact on society. Official regulations — important as they are — do not always facilitate and allow for extension of the field of application; they can also tend to restrict the field, for example by defining the legal criteria of suitability of cases. These criteria mostly relate to characteristics of the offender or the offence, not the needs of the victim. Regulation on funding prohibits restorative justice services to expand their scope beyond the field of criminal procedures and to develop innovative or experimental practices. In Belgium, for example, mediation is well established in both the fields of juvenile and adult criminal law, but the restorative justice services, which are mainly NGOs accredited and subsidised by the government, are not allowed to pick up cases for which no criminal or juvenile justice procedure is initiated. The space to experiment with new restorative justice models or to apply restorative justice to prescribed or non-conventional types of crime is often restricted. This all implies that the majority of victims and offenders in society are excluded from the offer of restorative justice and that restorative justice services will be inclined to adopt and replicate the selectivity, definitions and conceptual frames of criminal justice. In this sense, we are indeed far from the ideal of giving citizens an equal right of access to restorative justice.

Much more than a question of unwillingness or lack of cooperation, the challenge has to do with institutional inertia and incapacity. Restorative justice services can adopt various positions on the continuum from system based to community oriented organisations. Whatever the institutional position of a restorative justice programme is, ongoing efforts will remain necessary in building cooperation in various directions in a balanced way, with criminal justice actors and with a range of other sectors in society.

In this debate, the key question seems to be: how much autonomy is needed for restorative justice programmes? And when does a lack of autonomy become a real problem? As long as our criminal justice systems are not fundamentally focusing on problem solving and restoration of individual harm and social injustices, innovative approaches such as restorative justice must be protected in their authenticity. How to ensure this autonomy? How to do so in a complex field, while keeping a sphere of mutual respect and without burning bridges? Conditions at two levels must be met: conceptually and organisationally.

As we all know, restorative justice can be given different objectives, depending on the position of the user: an educational tool towards the offender, support to the victim, reducing re-offending, cost-effectiveness or streamlining the caseload of the judicial system,… Besides these rather ‘instrumental’ or ‘utilitarian’ approaches, restorative justice can also be considered just as an offer or a service making dialogue possible in difficult situations. Participation is then not considered as a part or a condition in a judicial procedure, a measure or a favour, but as an intrinsic goal or a societal value on its own. Participation in a restorative justice process then becomes a good for its own sake or for its emancipatory potential for citizens in democratic societies. This is how morality and moral growth can be practised by citizens, not by a unilateral rule-conforming approach, but by the unique experience of talking to ‘the other’ where affective, cognitive and performative elements (feeling, thinking and doing) are coming together and are reinforcing each other (Schweigert, 1999).

The safe environment that is necessary for such encounters cannot be found within criminal justice procedures and structures, but can be offered by restorative justice practices such as mediation and conferencing. Here, the idea is to leave the shadow of predominating practices focusing on instrumental objectives as defined by the system itself, such as effectiveness or satisfaction with outcomes.

This diversity of perspectives is not new. They were already discussed in studies on ‘the mediation movement’ in the US 30 years ago: how some approached these new practices from

· a ‘satisfaction story’ (problem solving, cost effectiveness, …),

· a ‘social justice story’ (community building),

· a ‘transformation story’ (‘empowerment’ and ‘recognition’ at individual and community level) and finally

· an ‘oppression story’ (confirmation and strengthening of structural injustices) (Bush and Folger, 1994).

For a similar analysis applied to restorative justice, see Johnstone and Van Ness (2007).

In this way, the approach presented here differs from the consequentialist concept of Gade and aligns more with Chapman. To attribute a punitive character to restorative justice interventions does not remediate fundamentally the well-known ‘problems with current forms of punishment,’ as Gade argues, but does reconfirm these problems by not challenging the concept of punishment, in particular the self-evident idea that punishment implies the experience of pain. To assign punitive elements to restorative justice practices sucks these interventions into the predominating retributive or utilitarian rationality of penal law and will limit the potential for offering an autonomous, neutral space free of power influences.

It goes without saying that our option (to offer a qualitative space for encounter) represents an deal-typical picture. It is more a perspective that we should keep in mind. In order to realise the implementation of such a perspective as broadly and effectively as possible, we will have to take care of some institutional or organisational conditions.

Initially based on Belgian experiences, I have argued for an ‘intermediate’ position of restorative justice programmes (Aertsen, 2006). Observations of restorative justice developments in other countries have strengthened me in this belief. What do we mean, more precisely, by an ‘intermediate’ position of restorative justice programmes? And how can this be realised in practice? Theory can help us again to find the right way in practice.

Referring to the theory of ‘legal pluralism’ as developed in the sociology of law from the 1970s onwards, an understanding grew that many mutually influencing ‘systems of norms’ exist in society, with formalised law being only one of many. While a legal centralism approach considers justice only as a product of the state, legal pluralism looks at law to be more pluralistic than monolithic, both private and public in character, and considers the ordering role of the official legal system more secondary than primary. Regulation in society often takes place in between the private and the public sphere, in so-called ‘semi-autonomous social fields,’ which are structured along a variety of mutually penetrating networks (family, work, neighbourhood, leisure, religion, politics, social media, justice, …). Such semi-autonomous social fields are areas of social life that generate rules and systems internally, but that also undergo influences from the surrounding institutional and societal world (that’s why they are semi-autonomous).

Now, the idea is to consider restorative justice as a ‘semi-autonomous social field,’ as it is situated at the intersection of justice mechanisms that appear at the private and community level on the one hand, and the public level on the other. To make this interplay possible and fruitful, restorative justice — where different rationalities must be able to meet on an equal footing — must adopt a neutral, intermediate and ‘empty’ position, not adhering to one dominating interpretation of the case at stake.

Translated to practice, it becomes clear that this intermediate position has to be pursued at two levels. At the local level, such a position can be built on the basis of equal cooperation between all institutional stakeholders. This local ‘partnership for restorative justice’ consists of traditional actors such as the police, public prosecutors and judges, lawyers, victim support, probation and prison, but also involves community oriented actors that are usually not operating within or with criminal justice, including social, cultural and sport organisations, educational and research institutions, and private and public employers. These local partnerships must adopt a structure of mutual commitment that offers safety and guarantees for institutional non-domination, and that allows for the development of restorative justice practices through a common learning process. Initiatives on ‘restorative cities’ can offer network structures in this sense.

At the central level, the independent, intermediate position of restorative justice programmes should be integrated and confirmed by law. The law should protect core principles of restorative justice processes, such as confidentiality, voluntariness and neutrality, but also principles at the organisational level, in order to ensure sufficient independence and autonomy.

‘To be inside or outside the criminal justice system’ is a too restrictive question. ‘Institutionalisation’ of restorative justice should not result in a process of co-option or subordination under an existing institution. At the same time, institutionalisation cannot be considered as a completely autonomous process outside the criminal justice system and other institutions. I have argued for a semi-autonomous and intermediate position, where different rationalities can meet, both from a formal justice and an informal justice perspective. In this way, restorative justice can provide a ‘type of normative dialogue between the citizen and the law’ (Mazzucato, 2017) an idea also developed by Braithwaite and others (see for example Braithwaite and Parker (1999)).

In this way, restorative justice enters into a dialogue with the criminal justice system, as argued by Gade, but it does not become part of the system. A real dialogue is not possible from a subordinate position; it requires an independent and equivalent position, in such a way that fundamental contradiction with the system becomes possible and is even encouraged. Restorative justice practices, such as mediation and conferencing, offer an adequate forum to confront the legal norm with the normative views and life world of citizens and their communities. In such an environment, the notion of punishment can be given its own interpretation, which is not necessarily an extension of the idea of intentional pain infliction.

This position is thus not a plea for broadening the field of restorative justice into a large and unlimited range of ‘restorative practices’ in society, as we witness in various countries. ‘Justice’ considered in a particular way as discussed above as a participatory process or mechanism, not as a product to be delivered remains central, also in restorative justice processes. I also do not adopt an abolitionist approach towards the criminal justice system. An abolitionist approach is not possible and not desirable. So-called alternatives under an abolitionist umbrella do not challenge existing punitive rationalities of the criminal justice system; they will not remove or fundamentally change this long-standing and persistent system. What is needed is an autonomous space for constructive and permanent ‘confrontation,’ a space where a ‘healthy tension’ between protagonists can be experienced in an ongoing common learning process.

Ivo Aertsen is Emeritus Professor at KU Leuven Institute of Criminology 

Contact: ivo.aertsen@kuleuven.be

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