In this article, first published in the latest European Forum for Restorative Justice (EFRJ) Newsletter, IIRP Founder Ted Wachtel argues that the strategies and philosophy of restorative practices – as applied in justice and schools, families and communities – can spark and unite a movement toward a more just, democratic and participatory society.
[Fair use notice: Thanks to the EFRJ for allowing us to republish this article, which first appeared in their September 2016 Newsletter Volume 17(3). Visit the EFRJ website to find the online archive of past EFRJ Newsletters.]
Governance and the use of authority: encompassing diverse definitions of 'Restorative'
by Ted Wachtel
Diverse Definitions
‘It has become commonplace to say that restorative justice cannot be defined’ (Daly, 2016, 9). This article employs the wide-angle lens of participatory governance to encompass the diverse definitions proposed by various ‘restorativists’ (Marder, 2016).
As a criminologist, Kathleen Daly would prefer to define restorative justice (RJ) narrowly as a ‘justice mechanism.’ She is an American who came to Australia in the early 1990s to evaluate RJ programs and stayed. ‘The popularity of the idea has affected a broad range of humanities and social sciences . . . Thus, analysis of definitions, practices, and effects takes different forms, depending on an analyst’s disciplinary field and research interest’ (Daly, 2016, 11). Daly concludes that the popularity and diversity of restorative justice has made it difficult to aggregate the definitions, interfering with empirical and theoretical study. ‘As a concept, RJ has become too capacious and imprecise’ (2016, 22).
On the other hand, University of Illinois clinical psychologist Elaine Shpungin (2011) likes to think broadly of a ‘restorative revolution . . . in the way we approach justice, transgression, punishment, crime and every day conflict among ordinary people . . . a transformational, society-wide, lens-shifting, all-affecting revolution the scale of the 1960’s civil rights and women’s rights movements, a revolution in how we think about who we are and how we live, work, and love together.’
The European Forum for Restorative Justice (EFRJ) itself has debated a more expansive definitional framework for restorative justice at various intervals in its history. For example, the EFRJ dropped the explicit practice of ‘victim-offender mediation’ from its name, but has since resisted the idea of changing its name to ‘restorative practices.’ Nonetheless, the EFRJ provides an expansive forum at its biennial conference — including educators and others whose interests lie beyond criminal justice. At its general membership meeting preceding its recent conference in Leiden, EFRJ board member Tim Chapman (2016) presented a paper which made the case for ‘enhancing the scope of restorative justice’ to include not only justice but ‘security, peace-building, education, social development, family support, children’s rights and well-being, and organisational life.’ The definitional language, if adopted, would also open the door to the EFRJ’s involvement with proactive restorative processes by not just ‘addressing harm’ but also ‘the risk of harm.’
The International Institute for Restorative Practices (IIRP) has long defined restorative justice as a subset of restorative practices (RP), thereby distinguishing between the two. We found schools and social care agencies more receptive to the word ‘practices’ than ‘justice.’ We delineated restorative justice as a response to crime and other wrongdoing after it occurs (Wachtel, 2013a). For the purposes of criminology research, our definition is consistent with Daly’s definition of restorative justice as a ‘mechanism’ that ‘is a meeting (or several meetings) of affected individuals, facilitated by one or more impartial people . . . at all phases of the criminal process — prearrest, diversion from court, presentence, and postsentence — as well as for offending or conflicts not reported to the police’ (Daly, 2016, 21). However, IIRP contends that restorative practices have a larger purview, including both formal and informal strategies that proactively build relationships and a sense of community that prevent conflict and wrongdoing in all sorts of settings (Wachtel, 2013b).
Unifying fundamental hypothesis
The IIRP has identified a fundamental hypothesis that unifies the wide potential of RP and suggests outcomes worthy of evaluation. ‘[H]uman beings are happier, more cooperative and productive, and more likely to make positive changes in their behaviour when those in positions of authority do things with them, rather than to them or for them’ (Wachtel, 2013a, 3). The way that ‘things’ and ‘with’ manifest themselves will differ, depending on the setting, but the common denominator for all restorative practices is a paradigm shift in the nature of governance and how those in charge use their authority.
Australian criminologist John Braithwaite has noted that ‘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’ (Braithwaite and Parker, 1999). In contrast, restorative practices serve as a ‘crucial vehicle of empowerment where spaces are created for active responsibility in civil society to displace predominately passive statist responsibility’ (Braithwaite, 1999). Engaging stakeholders in making critical decisions, rather than relying solely on experts or authorities — doing things with people rather than to them or for them — builds social capital and strengthens social bonds (Fatic, 1995; Habermas,1996).
Rob van Pagée described how the family group conference (FGC) has been used extensively in the Netherlands. By giving people more voice and more choice, these restorative approaches foster a new kind of welfare state ‘in which the government is retreating and citizens are exerting their responsibility and power to resolve issues that previously presupposed government intervention’ (Van Pagée, 2014, 7). Evaluation of FGCs indicates that when families are meaningfully engaged in decision-making, government’s cost per case decreases and plans are more effective (Eigen Kracht Centrale, 2011, 2).
Judge Barry Stuart, formerly of the Yukon Territorial Court, recognised the limits of his authority and expertise and saw the critical need to directly involve family and community. He removed his judicial robes and stepped down from the bench to convene a ‘sentencing circle’ with the family and neighbours of the accused, a young aboriginal man in a remote community (Leonardy, 1998). Most Canadian judges would have sent the young man to a federal penitentiary but, after engaging with the community in the circle, Stuart gave him a two-year suspended sentence and returned him to his home with a plan for support from others in the circle (Duhaime, 2010).
A sentencing circle is, Stuart pointed out, a community choosing to ‘roll up its sleeves’ in the grandest traditions of civil society to solve its own problems. ‘We’re living now in this la-la land where nobody really participates,’ he wrote. ‘It’s all done by professionals . . . we’ve outsourced everything’ (Libin, 2009). Stuart echoes the sentiments of Norwegian sociologist Nils Christie whose landmark paper, ‘Conflicts as property,’ criticised our modern court systems for allowing criminal justice professionals to steal people’s conflicts from them (Christie, 1977).
Collapse of family and community
Israeli historian Yuval Noah Harari, in his internationally best-selling book, Sapiens: a brief history of humankind, provides historic evidence of the sweeping professionalisation of most tasks and decisions previously handled by families and their communities of care.
Yet all of these upheavals are dwarfed by the most momentous social revolution that ever befell humankind: the collapse of the family and the local community and their replacement by the state and the market. As best we can tell, from the earliest times, more than a million years ago, humans lived in small, intimate communities, most of whose members were kin. They glued together families and communities to create tribes, cities, kingdoms and empires, but families and communities remained the basic building blocks of all human societies. The Industrial Revolution, on the other hand, managed within little more than two centuries to break these building blocks into atoms (Harari, 2015).
Harari’s historical account supports German sociologist Jürgen Häbermas’ long standing assertion that the modern ‘system’ of government and business has pushed aside the ‘lifeworld’ of family, friends and community. Häbermas juxtaposes the two words to represent two competing but related explanations of how society operates (Habermas, 1987). The system is modern society with administration, laws, politics, economy, organisations and paid professionals, while the lifeworld is the network of relationships among family and friends who, unlike those in the system, look out for each other not because they are paid, but because they care. Restorative practices bring the lifeworld into the system and help restore the balance between the two (Wachtel, 2015).
Restoring community through participation
In 2006, the Pennsylvania Department of Education authorised the International Institute for Restorative Practices as a specialised master’s degree-granting institution dedicated to a single discipline — based largely on the argument made in a 22 page submission entitled ‘Case for a new academic discipline.’ The IIRP successfully established that, ‘Restorative practices is the science of restoring and developing social capital, social discipline, emotional well-being and civic participation through participatory learning and decision-making’ (International Institute for Restorative Practices, 2005).
As an emerging social science RP provides an evidence base for an emerging global social movement dedicated to ‘restoring community.’ In Dreaming of a new reality (Wachtel, 2013b) I identified positive anecdotal and quantitative results, from schools, businesses, criminal justice, treatment programs, special education, social care and other settings, that affirm the IIRP’s fundamental hypothesis. The most significant implication of these findings to date is a possible ‘theory of everyone’ — that all social entities, whether families, classrooms, organisations, workplaces or whole countries, would function better if authorities in each setting gave stakeholders more voice and more choice in exchange for stakeholders taking greater responsibility (Wachtel, 2015).
For example, Anke Siegers and Gert Jan Slump, at the 2016 EFRJ conference in Leiden, shared how ‘Samenlevingproces’ or ‘Community processing’ was used to deal with the bitterly contested closing of a community hospital in the Netherlands. Siegers convened 22 interest groups (including hospital administration, insurance companies, unions, government, patients, community) in a 14-hour marathon negotiation. Technology made it possible for each group to watch the negotiation by video at off-site locations, which were nearby so that the 22 representatives in the negotiation sessions could visit with their respective groups to caucus and then return to the meeting. Critical to its success was the fact that the group process was not advisory but had the authority to conclude a legal agreement on behalf of all interest groups. The negotiation produced a detailed plan, signed by all parties, that reopened the hospital (Siegers and Slump, 2016).
Peter Block, an American organisational development consultant, has dedicated A Small Group to ‘restoring and reconciling’ Cincinnati, Ohio. Rather than use circles, his approach convenes small groups of three, as part of a larger meeting, to join in the Six Conversations he designed to ‘engage the disengaged’ (A Small Group, 2016).
David Van Reybrouck, a Belgian contemporary historian and author of Against elections: the case for democracy (Van Reybrouck, 2016), initiated the G1000 Citizens’ Summit in Brussels. One thousand citizens, more than half of whom were randomly selected, came together in 2012 to ‘discuss topics related to a better democracy in Belgium.’ The summit used social media to engage others outside the meeting. Another G1000 summit was held in 2014 in Amsfoort in the Netherlands to address more local topics. Van Reybrouck explains that ‘The basic idea behind democracy is that of delegation. Each citizen has power for only one minute, once every four years. You give your vote and you outsource your power. Today that is no longer necessary’(Synthetron, 2016).
Conclusion
Restorative justice can be narrowly or broadly defined, depending on the context and purpose. However, by explicitly recognising a beneficial shift in the nature of governance and authority as the common thread in all restorative practices, we may unify a social movement that might otherwise fragment. Doing things with people rather than to them or for them characterises the ‘revolution’ that Elaine Shpungin foresees. When all is said and done, the allure of a more just, democratic and participatory society is the ‘sizzle’ that makes ‘restorative’ exciting.
Ted Wachtel
To learn more about IIRP Founder Ted Wachtel's work, visit his website Building a New Reality.
References
A Small Group (2016). Restoring and reconciling Cincinnati. Retrieved on 12 September, 2016.
Braithwaite, J. (1999). Democracy, community and problem solving. In: Vermont Department of Corrections and Real Justice (ed.) Proceedings of the Building Strong Partnerships in Restorative Practices Conference, chap. 3, pp. 31–39. Bethlehem, PA: RealJustice.
Braithwaite, J. and Parker, C. (1999). Restorative justice is republican justice. In: G. Bazemore and L. Walgrave (eds.) Restorative juvenile justice: repairing the harm of youth crime, chap. 4, pp. 103–106. Monsey, NY: Criminal Justice Press.
Chapman, T. (2016). A new vision and strategy. Paper presented at the EFRJ AGM, Leiden, 21 June 2016.
Christie, N. (1977). Conflicts as property. British Journal of Criminology 17(1):1–15.
Daly, K. (2016). What is restorative justice? Fresh answers to a vexed question. Victims & offenders 11(1):9–29.
Duhaime, L. (2010). The good and the bad: Judge Stuart’s R. v. Moses Legacy. LawMAG.
Eigen Kracht Centrale (2011). State of affairs. http://www.fgcnetwork.eu/user/file/state_of_affairs_the_netherlands_2011.pdf.
Fatic, A. (1995). Punishment and restorative crimehandling: a social theory of trust. Aldershot: Avebury.
Habermas, J. (1987). The theory of communicative action. Vol.2, Lifeworld and system: a critique of functionalist reason. Boston: Beacon Press. Translation by Thomas A McCarthy of Theorie des kommunikativen Handelns.
Habermas, J. (1996). Between facts and norms: contributions to a discourse theory of law and democracy. Cambridge: Polity. Translation by William Rehg of Faktizität und Geltung.
Harari, Y.N. (2015). Sapiens: a brief history of humankind. New York: Harper Collins.
International Institute for Restorative Practices (2005). Case for a new academic discipline. Submitted as part of graduate school application to Pennsylvania Department of Education.
Leonardy, M.R.J. (1998). First Nations criminal jurisdiction in Canada: the aboriginal right to peacemaking under public international and Canadian constitutional law. Saskatoon: Native Law Centre.
Libin, K. (2009). Sentencing circles for aboriginals: Good justice? National Post.
Marder, I.D. (2016). Communicating and collaborating across nations, professions and disciplines in restorative justice. Restorative Justice 4(2):237–246.
Shpungin, E. (2011). The restorative revolution: It’s coming. Psychology Today.
Siegers, A. and Slump, G.J. (2016). Community processing: large group conflict resolution and decisionmaking. Restorative justice: human rights and personal realities 9th International Conference of the EFRJ, Leiden.
Synthetron (2016). Interview with David Van Reybrouck. Synthetron.
Van Pagée, R. (2014). Transforming care: the New Welfare State. Newsletter of the European Forum for Restorative Justice 15(2):7–9.
Van Reybrouck, D. (2016). Against elections: the case for democracy. London: Bodley Head.
Wachtel, T. (2013a). Defining restorative. http://www.iirp.edu/images/pdf/Defining-Restorative.pdf.
Wachtel, T. (2013b). Dreaming of a new reality: how restorative practices reduce crime and violence, improve relationships and strengthen civil society. Bethlehem PA: The Piper Press.
Wachtel, T. (2015). Restorative practices and the lifeworld: implications of a new social science. Revista de Asistenta Sociala XIX(4):1–13.
