John Braithwaite, Australian National University, discusses how community involvement and empowerment in restorative justice processes can improve democractic participation and democratic competence. Presented at the "Building Strong Partnerships for Restorative Practices" Conference, August 5-7, 1999, Burlington, Vermont.
Democracy Decayed
Indonesia, the world’s fourth largest state, became a democracy this year, to become the most recent of a community of democratic states that numbered only 8 in 1850, 19 in 1914, 28 in 1981 and 53 in 1995 (Mann, 1993: 766-7; LeDuc, Niemi and Norris, 1996: 9). In the historical period when representative democracy is sweeping away one dictatorship after another, democracy is becoming more shallow in its meaning for human lives. The lived experience of modern democracy is alienation. The feeling is that elites run things, that we do not have a say in any meaningful sense.
It is certainly a poll-driven democracy, and polls are admittedly a kind of safeguard against tyranny. However, a poll-driven democracy is also a tyranny of the unreflective median voter. We see this tyranny vividly with criminal justice. Crime is one of the insecurities of swinging voters. In an unreflective democracy where the political imagination is limited to bigger doses of punishment as the cure, the swinging voters say they want longer sentences and they defect from parties that come under attack in the mass media for being soft on crime.
Such a democracy is impoverished. What our experience with restorative justice has taught us is that there is a rich diversity of things that citizens want out of the criminal justice process that they only come to grasp through serious deliberative engagement with it. Listening to the arguments and the experiences of others and then reflecting on their needs and aspirations for decent outcomes.
But of course this malaise of democracy reduced to the politics of the opinion poll, television brab and tabloid beat-up is much wider. It results from the density of governmental decisions in complex societies and the density of people who would like to have a say. In such a world, to aspire to much more than the democracy of the ballot-box seems romantic. There are just too many decisions and too many people for participatory democracy to be feasible. Besides, few of us want to spend our lives in the endless meetings it would require. The expanding impracticability of all affected citizens participating in important decisions that affect their lives has reinforced the dominant view that representative democracy is all that is feasible. Since the defeat of the participatory town meeting aspirations of the anti-federalists by more pragmatic federalists such as Madison in the eighteenth century constitutional debates, participatory democracy has come to be seen as progressively more utopian. Indeed it is true that even in the eighteenth century the anti-federalists longed nostalgically for a participatory democracy that could only work in a village society and not in Philadelphia or Boston. The version of democracy Madison favoured had checks and balances against tyranny that made it more sustainable. Americans should be thankful the federalists won the debate. At the same time, if Madison or Jefferson returned to America today they would be disappointed at how remote government is from the people, at how much power governments, and worse, democratically unaccountable corporations, exercise in ways that educated citizens dimly understand. The utopianism of the participatory democracy they defeated has been used by generations of elected politicians to erode the sovereignty of the people in favor of the sovereignty of executive government. The road and the weapons system are built by experts remote from elected officials, let alone from the citizens who live by the road and are protected by the weapons. How could it be otherwise?
Democracy Renewed
Progressively, the distancing of the people from the scale of modern state and corporate governance is producing a backlash. Contemporary Madisons and Jeffersons who see direct democracy as worse than an impossible dream nevertheless keep faith with the hope that a new amalgam of citizen participation can be forged. These are folk who participate in social movements like the social movement for restorative justice. My argument is that these citizens are indeed at the frontier of a new Madisonianism, a civic republicanism, for a complex world.
Native American "republicanism" had an influence on American revolutionary republicanism. The freedom of the Indian was part of the imagery of the Native American garb at the Boston tea party. Some of the framers of the US constitution seem to have been admirers of the Iroquois confederacy, leading Iris Young (1997) to invoke Homi Bhabha’s notion of hybridity to suggest America may be a "hybrid democracy". We see the symbol of the Iroquois federalism, the eagle clasping bundled arrows, on the US dollar note. What I see as the hybrid civic republicanism of the restorative justice movement equally draws upon the institutional wisdom of Native Americans, and Polynesian Americans as well, though revealed more influentially through New Zealand Maori than Hawaiian experience. Western ADR (alternative dispute resolution) models invented in the 1970s were going nowhere slowly during the 80s until they learnt some crucial lessons from indigenous justice in the 1990s. In the criminal justice context, there were three most crucial lessons.
The first was that dyadic mediation between a victim and an offender is an impoverished formula for restorative justice compared with bringing into a circle a multiplicity of people who are affected in different ways, but particularly people who love and want to support those affected as victims and offenders. Western feminist critiques of power-imbalance in ADR, for example, have more force when applied to a meeting of a man and a woman, a man and a child, or when applied to an adversarial encounter between a teenage rape victim and a cross-examining lawyer. They still have force, but less so, when applied to a healing circle where both victims and offenders are assured of support from both men and women, adults and children who stand with them.
The second lesson from indigenous justice was, in the words of Ada Melton (1995) that it is better to put the problem rather than the person in the centre of the circle. There is a connection of the second insight with the first. This is the Maori view that it is barbaric to allow an offender or a victim to stand alone in the dock. While the shame of letting one’s loved ones down can be healthy and readily transcended by love and forgiveness from them, the shame of exposure in the dock, individualized guilt, and the stigma which is a formal objective of Western punishment can eat away at a person’s self.
The third crucial insight was that material reparation was less important than symbolic or emotional reparation (see also Retzinger and Scheff, 1996). Remorse and apology, as recent New Zealand evidence suggests, is more predictive of reduced reoffending following restorative justice conferences than material compensation (Maxwell, 1999). And it is often more important to victims (Sherman et al., 1998). In some contexts it can even make sense for the victim and the community to make a gift to the offender, as among the Crow people (Austin, 1984: 36). On Java I was told of a village where a boy was caught stealing and dealt with according to principles of musaywarah - decision by friendly cooperation and deliberation. The chief of the village summarized the feeling of the village meeting: "We should be ashamed because one from our village should be so poor as to steal. We should be ashamed as a village". Their solution was to give the offender a bag of rice.
With this rediscovered institutional wisdom, the evidence is now strong that we can offer restorative criminal justice rituals that on average citizens find more satisfying, fair and more respectful of rights than court. There are lively and important debates about differences between various kinds of conferences and circles that defines a research agenda for we evaluation scholars. However, I suspect there are more important things that are shared in common and these include learning from the above three insights from indigenous justice.
The more abstract lesson is that for most participants circles and conferences are democratically satisfying (and indeed victim-offender mediation, though perhaps somewhat less so (McCold and Wachtel, 1998). The practical lesson is that victims and other participants can be readily persuaded to attend so long as implementation failures are solved to make this convenient. It follows that conferences and circles can salvage some not insignificant participatory democracy in the twenty-first century. Moreover, we may be able to expand the application of conferences beyond criminal offending by juveniles and adults, beyond the care and protection of children, beyond bullying in schools, beyond business regulatory domains such as nursing home inspections (Braithwaite, 1999), to other problems that affect peoples’ lives directly enough for them to want to participate. Candidates seem to me unemployment, homelessness and truancy/dropout/educational failure.
Political scientists may say that such concerns do not go to the heartland of the democratic process. True. But how can citizens hack a path to the heartland of the democracy if the democracy has no strategy for teaching them how to be democratic citizens? Circles and conferences about matters that ordinary people care about in their lived experience can teach them. If all students experience and witness serious acts of bullying at school and care about this, then before they reach adulthood all can have the experience of participation in circle solving of a difficult problem on which there are multiple perspectives.
And democracy is something that must be taught. We are not born democratic. We are born demanding and inconsiderate, disgruntled whiners, rather than born listeners. We must learn to listen, to be free and caring, through deliberation that sculpts responsible citizenship from common clay (Barber, 1992).
Punitive criminal justice, like the accountability mechanisms of the contemporary state more generally, teach us not to be democratic, not to be citizens. This is because of their passive model of responsibility (Bovens, 1998) Passive responsibility occurs when we hold someone responsible for what they have done in the past. The President is censured for his sexual misconduct, the Treasury secretary is fired for failing to prune the deficit, Colonel Gadaffi’s child is killed in a bombing raid on his home to teach his father that it is wrong to support terrorism.
Circles and conferences, in contrast, teach active responsibility. Active responsibility means taking responsibility. In a healing circle, most citizens in the circle are not passively responsible for any wrongdoing; they are certainly not held responsible for criminal wrongdoing. Yet the hope so often realized is that they will take active responsibility for solving the problem. This is part of the ambition of putting the problem rather than the person in the center of the circle. In the most moving conferences, participants take active responsibility for confronting stuctural problems like racism in a community (see the Country Womens’ Association case study on the Real Justice web site: realjustice.org), sexual exploitation and domination of girls by boys in a school (Braithwaite and Daly, 1994) even a Prime Minister taking responsibility for restructuring the regulation of the Australian insurance industry (Braithwaite, 1999). But mostly the active responsibility is more banal — the uncle who takes responsibility for ensuring that a car is left in the garage on Saturday nights to prevent a recurrence of drunk driving, the aunt who offers a home to a child abused by her parents, and yes, the burglary victim who decides to install an alarm system.
The lesson that democracy requires active responsibility is being learnt in the banal and personal cases just as it is in the less common cases that grapple with structural change. The outputs we hope for are not only solving the problem but also building community and building democracy or at least the competence to be democratic.
To rebuild a democracy of which Madison and Jefferson would be proud, we need to do more than motivate people to participate in circles that address problems of living that directly affect their personal relationships. The extra step to democratic citizenship is taken when the citizen moves from participating in a restorative justice conference to being active in some way in the social movement for restorative justice. The extra step is taken when a citizen moves from supporting the residents of a nursing home where he has a relative in an exit conference following an inspection, to being an aged care advocate. It is taken when a young woman who learns in a whole school anti-bullying program how to confront bullying and then applies those skills to confront corporate bullies who destroy forests on which our wildlife depends.
Of course restorative justice experiences will never be the principal way that social movement activists acquire the consciences and skills to be actively responsible. On the other hand, when we broaden our conception of restorative justice to include the learning of restorative practices in everyday life (Wachtel, 1999), it may be that much of the learning to be actively responsible has always arisen from restorative everyday practices in families, workplaces and peer groups.
But the approach to the revitalization of the civic republic I now articulate does not depend on NGO activism being nurtured by restorative practices. This approach has four components:
1. Institutionalize circles/conferences to enable all affected citizens to participate in solving problems that directly affect them in important ways (crime, the safety and wellbeing of children they love, of aged and infirm they love, unemployment, homelessness).
2. Where appropriate, facilitate the personal becoming political in such cases. Bring in advocacy groups (eg feminist shelter workers) who can define options for structural change, possibilities for transforming personal troubles into public issues.
3. Foster social movement politics as vehicles for active responsibility in domains were we are not necessarily directly personally affected. Abuse of power can be checked without everyone being actively responsible for every issue that concerns them. It requires that some citizens be actively responsible around every issue of central democratic concern. It helps when everyone is concerned about refugees in Kosovo or Ethiopia; but it helps more when a few have enough concern to be genuinely and effectively politically active on the issue.
4. In a civic republic where active responsibility is invigorated by points 1-3, more of the most disenfranchised citizens might be motivated to take the responsibility to vote, thus revitalizing the representative democracy.
More briefly, this republican program is for restorative problem-solving which teaches active responsibility, thereby motivating the making of the personal political, thereby motivating social movement politics and grass-roots engagement with the representative democracy. For restorative justice to reach for these democratic ambitions, its advocates must advance certain values. To these I now turn.
Restorative Justice Values
If restorative justice means no more than a process for empowering through dialogue all the stakeholders affected by a problem, then it will be a rather limited force for reinvigorating democracy. It seems that the social movement for restorative justice needs to valorize active responsibility in civil society by pointing to the limitations of statist passive responsibility (Braithwaite and Roche, forthcoming). It needs to valorize healing more than hurting following a wrong, restoration (especially of relationships) over retribution. Most fundamentally, it should valorize democracy, especially core democratic values such as all voices being heard and treated with equal respect.
Yet if democracy is the most fundamental value, it brings a paradox. What if the result of all voices being heard is that none of them want to take active responsibility, none want to heal, most want the state to invoke passive responsibility through brutal and exclusionary punishment. While this happens much less than we all expected, it does happen. When it does, if democracy is really our fundamental value, then we will want the will of the circle to prevail and for the matter to be handed back to the state for the exaction of what its legal system finds to be just punishment. The paradox of democracy here is really a familiar one: if the electorate votes in a government with an anti-democratic agenda, democrats who voted against them should not seek to overthrow them by undemocratic means.
Nevertheless, for the republican, majoritarian democracy is only the centrally sanctioned political process because it is a means to the end of a deeper value. This value is freedom as non-domination (Pettit, 1997) or dominion (Braithwaite and Pettit, 1990). For a strart this means that we are not moved by the majoritarian will of the conference if the voices of deeply affected persons are dominated during the conference. But more fundamentally it implies a need to constrain majoritarian decisionmaking to protect against the tyranny of the majority. Hence the will of the majority to flog a child should not be honored because this would be a tyrannous violation of fundamental human rights.
A further paradox of democracy is that democracy is the only acceptable way to decide what are the tyrannies we should constrain majorities against imposing. The people should vote on a constitution that constrains them, constrains their legislature and judiciary from engaging in a variety of forms of domination. On the republican analysis, whose heritage includes Rome, Montesquieu and Madison, freedom as non-domination both motivates majority rule and is more fundamental than it. No one can enjoy freedom on this republican analysis in a society where majorities fail to legally tie their hands against trampling on the freedom as non-domination of those in the minority on a particular issue.
One of the good things about restorative justice institutions is that they can enrich the process of bubbling up the kinds of constraints that the majority should impose on itself through both law and policy. For example, a non-RISE1 conference was held in Canberra at which the victim proposed that a young shoplifter wear a T-shirt for a day saying "I am a thief". The offender’s mother felt this was a good idea and the offender said he did not care, treating the failed restorative process as a joke. Many of us in Canberra outside the conference thought it was a bad idea and said so when we heard of it, especially when the case became a public issue. The public debate around this case was rich and threw up a great deal of mature thinking about how popular justice should be constrained. There is now a consensus in Canberra that conferences should be constrained against degrading and humiliating punishments, just as they are constrained against incarcerating offenders. The mother of the offender has been persuaded to this consensus as a result of the dialogue. She suggested a ceremony to burn the T-shirt or the production of an "I am not a thief" T-shirt, a suggestion vetoed by the young offender who by then had had enough.
There is therefore a need for the justice of the law to constrain the justice of the people (especially through the institution of rights). Equally, however, there is a need to ensure that the justice of the people percolates up to influence the justice of the law (Parker, 1999). A judicial system that is cut off from impulses bubbled up from popular restorative justice will be an inferior one (see generally Habermas, 1996). Equally, a restorative justice that is cut off from the filtering down of the justice of the courts will be inferior.
This is a controversial claim in respect of indigenous justice. In a multicultural society, however, it would be intolerable to suggest that an indigenous girl who did not wish to submit to the justice of the elders should be denied protection that would be extended to her if she were non-indigenous. This is especially so if the girl contests her very membership of this indigenous group by dint of mixed birth, by attempting to leave the community, or perhaps even simply by asserting that she "doesn’t want any of that Maori shit" (Maxwell and Morris, 1993).
Indeed it may be that just as Western justice has something to learn from indigenous restorative traditions, so indigenous justice has something to learn from the rights of liberal legalism. Many indigenous people themselves today agree that fundamental legal protections against the tyranny of the majority should extend to all citizens regardless of ethnicity. That said, there are major dangers in the re-import of restorative justice back into indigenous communities with added Western baggage. A good example is the accreditation of mediators. This kind of Western professionalizing project can disempower indigenous elders. While dialogue where indigenous elders and Western mediators/facilitaltors exchange the wisdom of their experience must be a good thing, policies which usurp respected elders for "better trained" non-elders are a threat to good governance (and are unjust). This follows from our republican analysis that active responsibility is the key to good governance. Indigenous peoples who have experienced Western occupation/domination have suffered loss of active responsibility to the most extreme degree. They have suffered most from the dead hand of the passive responsibility of the Western state. Few acts of domination could therefore be worse than to seize back from them those manifestations of active responsibility that survive.
There will never be consensus on all the values that should inform restorative justice. Most restorative justice advocates think reintegration into communities, community development, holism, shared learning, repair of harms, restoration of relationships, forgiveness and love are values that should centrally inform restorative processes. Many, especially indigenous elders, think spirituality is fundamental2 . All these values are contested to varying degrees within the movement, however. Some leading figures emphasise that punishing wrongdoing should have a central place (Daly, 1999). While dissensus and debate on most values is inevitable and desirable, it may be that there must be consensus on certain minimum values that allow the very possibility of a restorative justice space. My submission is that these values are democratic deliberation itself, equal respect for the voices of all stakeholders, a rule of law that secures freedom as non-domination and allows a space for those stakeholders to have a say.
Conclusion
This essay sought to understand how people in ordinary families and communities can have more of a say in a world dominated by big business, professional politicians and technocrats. Democratic participation requires democratic competence which must be learnt through the exercise of active responsibility. Restorative justice processes can be one crucial vehicle of empowerment where spaces are created for active responsibility in civil society to displace predominantly passive statist responsibility.
Representative democracy with a separation of powers is more sustainable than direct democracy. There are too many of us and the world is too complex for us to find time to participate in a direct democracy, even in endless citizen-initiated referenda. However, the conference-circle technology of democracy can give us an opportunity to directly participate in certain major decisions that impact our lives and those of our loved ones. Through this engagement with democratic participation in complex problem-solving citizens learn to be actively responsible. This is deliberative theory’s answer to a representative democracy that by failing to cultivate relationships in a community, produces a people "…characterized by selfishness, apathy, alienation, lack of knowledge and prejudice" (Warren, 1992: 11). Fishkin and Luskin (1999: 8) claim to observe among participants in their deliberative polling "a gain in empathy and mutual understanding". Restorative justice processes have produced more systematic evidence of such gains (Braithwaite, 1999).
Once citizens learn to be actively responsible as opposed to learning to rely totally on protection by a state that enforces passive responsibility, they will become active in social movement politics. NGOs offer the second great avenue for revitalizing meaningful forms of citizen participation in a democracy. They can be as relevant to democratizing global institutions such as the IMF and the WTO that were forged nearby at Bretton Woods as they can be to re-democratizing the state (Braithwaite and Drahos, 2000).
NGO influence can feed back into restorative justice conferences as advocacy of making the personal political, by invoking the possibility of agitating for structural change. The most important way this happens is when the justice of the people puts pressure on the justice of the law to change. This indeed is a shared project of the partnership we seek to forge at this conference.
Endnotes
1 RISE is a restorative justice experiment being conducted in Canberra by Lawrence Sherman and Heather Strange where 1300 adult and juvenile criminal offenders are randomly assigned to a court case or a conference.
2 In mentioning the values discussed in this section I am grateful to restorative justice colleagues who participated in an Open Society Institute retreat on this and other questions in February, 1999. I am drawing upon their wisdom about the shared values here.
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