Decency and Reconciliation as a Basis for Restorative Justice, not Consequentialism

In his article ‘Restorative Justice as Punishment’, Christian Gade (2022) raises several interesting issues about the analysis of restorative justice. The central question is whether restorative justice should be viewed as diametrically opposed to criminal justice. According to Gade, the confrontation with a victim can often be painful, and there may be obligations of restoration that require a great deal from the offender. Gade suggests that it might be more exact to conceptualise these obligations in terms of a constructive form of punishment. In his view, therefore, the difference between punishment and restorative justice would be a gradual one. I agree with this take on the matter, although my reasoning for it may be slightly different. What is important, in my view, is that there should be no taboo on the use of the term ‘punishment.’ While it is beneficial if an offender sees restorative mediation as assistance, there should also be room for those who perceive it as punitive. For a defence of this view see Geeraets (2018, p. 30).

In this response, however, I would like to address another idea that Gade presents in his article. He argues for restorative justice from a consequentialist perspective. This is quite common in the restorative justice literature. Prominent restorative justice thinkers like John Braithwaite and Lode Walgrave often emphasise that their arguments are consequentialist in nature. However, it seems to me that this is a wrong turn, and I believe it is fruitful to explain why. It appears to me that the motivations of restorative justice proponents are not consequentialist but rather stem from a principled desire to deal decently with crime, treating both offenders and victims with respect, and aimed at reconciliation. In the following, I will provide an analysis of consequentialism and explain why restorative justice proponents should not rely on it.

Christian Gade identifies himself as a consequentialist in various parts of his article. For example, he writes:

As the starting point for this contribution, I would like to say that I consider myself part of the restorative justice movement, in the sense that I support restorative justice from a consequentialist perspective. This means that I support restorative justice only to the extent that it has better outcomes than other mechanisms of crime control (2022, p. 11).

Variations of this statement are often found in restorative justice literature. Lode Walgrave, for instance, presents himself as a consequentialist; for example, he states: ‘Restorative justice is indisputably a consequentialist approach to offending’ (2003, p. 64). But the originator of this idea is John Braithwaite. He connects his consequentialist view with the consequences of crime and the transformative power of restorative justice:

For most restorative justice advocates, restorative justice is consequentialist philosophically, methodologically, and politically. The restorative method is to discuss consequences of injustices and to acknowledge them appropriately as a starting point toward healing the hurts of injustice and transforming the conditions that allowed injustice to flourish (2002, p. 564).

In a book, co-written with Philip Pettit, Braithwaite connects consequentialism with the philosophical idea of ‘dominion’ (Braithwaite and Pettit, 1990, chaps. 3, 5).

But what does the term ‘consequentialism’ actually mean? In the first place, this term could denote a particular ambition. The ambition within restorative justice is to be open to the results of empirical research. How do restorative justice practices work? What are the experiences of offenders and victims? What are the effects, for example, in terms of recidivism? Restorative justice thinkers are typically interested in these empirical questions. For example, the Leuven Declaration, drafted by Lode Walgrave and signed by many key figures in the restorative justice movement (including Braithwaite), illustrates this point:

In concert with practitioners, scientific research on restorative justice has to provide scientific feedback on the processes and outcomes of ongoing experiments and practices, and to make suggestions for new experiments’ (1997, p. 121).

I believe that there can be hardly any objection to this ambition of openness. Social scientists can play a significant role in understanding and improving restorative justice practices by studying how they actually function.

However, the term ‘consequentialism’ typically has a more precise meaning in philosophy. It serves as an umbrella term for a certain mode of reasoning. Characteristic of such reasoning is that it is focused on the consequences of actions. The aim is to achieve good consequences and to maximise them. Note that the use of the term consequentialism does not imply a specific theory. This might present a problem for restorative justice proponents. Hedonism, for instance, is a typical example of a consequentialist theory. Within hedonism, one’s own happiness is central, and the individual is focused on creating as many good consequences as possible for herself. However, I do not think Gade intends to identify himself as a hedonist.

The most common consequentialist theory is utilitarianism. Within this theory, the happiness of everyone carries equal weight, and the goal is to maximise overall happiness. This signifies that an agent, in order to act morally, should always choose the action that produces the most happiness. However, there are significant and, in my view, convincing objections to utilitarianism. On one hand, utilitarianism places very high demands on a person. Can we expect of an agent that her actions are always aimed to maximising happiness for the greatest number? (Mackie, 1977, pp. 129--130). On the other hand, utilitarianism can also lead to unfair and unjust treatment. For example, within utilitarianism, it is conceivable that an individual could be sacrificed if it contributes to the happiness of others.

If something is inherently wrong, it should never be pursued, even in the occasional case when it has good consequences.

In addition to these objections, it is perhaps even more important to note that restorative justice proponents generally do not use a consequentialist style of argumentation. The language of restorative justice is infused with a more principled way of reasoning. Lode Walgrave (2008, pp. 53--56), for example, asserts that punishment is always wrong because it intentionally inflicts harm. This categorical stance has no basis in consequentialism but aligns much better with another major ethical approach, namely deontology, also called duty-based ethics. Deontology assumes that some things are inherently right or wrong. If something is inherently wrong, it should never be pursued, even in the occasional case when it has good consequences. There can be no compromise, and this connects well with Walgrave’s categorical rejection of intentionally imposing harm on offenders.

In a deontological approach, the emphasis typically lies on considerations of justice. A slogan that is typical of deontology is the Latin phrase ‘fiat justitia ruat caelum’, which means that justice must be done even if the heavens fall (or: the world ends). This slogan appears in the thinking of the most famous deontological philosopher, Immanuel Kant. He interprets retribution in terms of ‘ius talionis’ (an eye for an eye, a tooth for a tooth) and sees it as an absolute requirement of justice. Notorious in this context is his island example. If islanders were to decide to part ways, according to Kant, they may only do so after they have first executed the last murderer (2009, p. 157). Kant does not allow for exceptions to the (harsh) principle of retribution.

It hardly needs to be argued that Walgrave’s principled rejection of intentional infliction of harm clashes with Kant’s principled view on retribution. This clash indicates a difference in focus in thinking about the response to crime. Kant emphasises justice. In his view, retributive punishment is a proper and just response to crime. It is perhaps questionable whether this is the correct view — in my view, the principle of retribution can be no more than a rudimentary principle of justice (Geeraets, 2021) — but what matters more is that Walgrave—and I believe many restorative justice proponents—are not primarily focused on justice. I would posit that decency and reconciliation drive the restorative justice movement.

It appears to me that a viable distinction can be made between three normative registers: expediency, justice and decency. Within restorative justice, I believe that decency is the dominant normative register. I develop this distinction in Geeraets (2022). It seems to me that restorative justice thinkers aim for a humane response to crime which aims at reconciliation between the various parties involved.

I will consider decency first. A significant indication that this normative register is important in thinking about restorative justice is the idea that only the crime, not the person, should be condemned. This idea, central to Braithwaite’s theory of ‘reintegrative shaming’ (Braithwaite, 1989), is embraced by many restorative justice thinkers and serves as a fundamental principle. Even if in an individual case there were reasons to believe that condemning the person might have a positive result (for example, in terms of reducing recidivism), I suspect that restorative justice proponents would still find such condemnation unacceptable. Another indication is that values such as respect, inclusion and safety (within the restorative mediation process itself) are almost always mentioned when restorative justice is discussed. The basis for these values, in my opinion, lies not so much in their contribution to an effective and efficient conflict resolution but rather in the conviction that the response to crime should be civilised and humane.

At first glance, it might be thought that reconciliation fits well with a consequentialist orientation. After all, restorative mediation brings parties together with the hope that they will relate to each other in a normal way again, and can move forward together in the future. Reconciliation is clearly future-oriented. However, I do not believe that this teleological orientation should be given a consequentialist interpretation. Within consequentialism, the focus is on maximising good consequences, with effectiveness and efficiency at the forefront. For example, an ideal punishment (from a consequentialist perspective) ensures maximum safety at the lowest possible cost. But this is typically not how the discourse around reconciliation operates within restorative justice. It would be strange, for instance, to claim that restorative justice is about maximising reconciliation. Additionally, I believe that most restorative justice thinkers consider the conversation between the offender and the victim intrinsically valuable, regardless of the results. The attempt to find common ground in a conversation has intrinsic meaning, even if the goal of reconciliation is not achieved.

Rejecting consequentialism and emphasising decency and reconciliation does not mean that the ambition empirically to research restorative justice should be suspended. It still seems crucial to me to understand how restorative justice works, what the experiences of offenders and victims are and what effects can be observed. Moreover, I think that explicitly stating the principles of restorative justice can guide this research and help in interpreting and valuing the results.

In this response, I have argued that consequentialism does not align well with restorative justice. Instead, it is more appropriate to look for the foundation of restorative justice in ideas about decency and reconciliation. The mission of restorative justice is to offer a civilised response to crime, where all parties can expect respect. This does not imply that the effects of restorative justice are irrelevant or that research into, for example, recidivism should not take place. However, what I do argue is that, for example, the principled demand for respect for parties ultimately stands apart from such consequentialist considerations. I believe that this is where Christian Gade’s reasoning may have gone astray. In his article, he places such a strong emphasis on crime control recidivism, and economic costs that he seems to lose sight of the primary concerns of restorative justice proponents: offering a humane response to crime that provides the possibility of reconciliation.

Braithwaite, J. (1989). Crime, shame and reintegration. Cambridge: Cambridge University Press.

Braithwaite, J. (2002c). Setting standards for restorative justice. The British Journal of Criminology 42(3):563–577. Https://doi.org/10.1093/bjc/42.3.563.

Braithwaite, J. and Pettit, P. (1990). Not just desserts: a republican theory of criminal justice. Oxford: Clarendon Press.

Gade, C. (2022a). A paradigm shift within the restorative justice movement? Restorative justice as punishment. Newsletter of the European Forum for Restorative Justice 23(2):11–15.

Geeraets, V. (2018). Two mistakes about the concept of punishment. Criminal Justice Ethics 37(1):21–35. Https://doi.org/10.1080/0731129X.2018.1441227.

Geeraets, V. (2021). The enduring pertinence of the basic principle of retribution. Ratio Juris 34(4):293–314.

Geeraets, V. (2022). Doelmatigheid, rechtvaardigheid en fatsoen: over normatieve eenzijdigheid in juridisch(-empirisch) onderzoek. Ars Aequi 71(12):945–957.

Kant, I. (2009). Metaphysische Anfangsgründe der Rechtslehre: Metaphysik der Sitten Erster Teil. Hamburg: Felix Meiner Verlag. 

Mackie, J.L. (1977). Ethics: inventing right and wrong. Harmondsworth: Penguin.

Walgrave, L. (1997). Declaration of Leuven. European Journal on Criminal Policy and Research 5(4):118–122. Https://doi.org/10.1007/BF02677667.

Walgrave, L. (2003). Imposing restoration instead of inflicting pain: reflections on the judicial reaction to crime. In: A. von Hirsch, J. Roberts, A.E. Bottoms, K. Roach and M. Schiff (eds.) Restorative justice and criminal justice: competing or reconcilable paradigms?, pp. 61–78. Oxford: Hart.

Walgrave, L. (2008). Restorative justice, self-interest and responsible citizenship. Cullompton: Willan.