These ‘basics’ are a non-exhaustive range of works widely, yet not unanimously, invoked by many (Western) scholars and advocates of restorative justice, as this field’s theoretical pillars. These seminal groundworks still condition what we know, understand and do with ‘restorative justice’
Christie, N. (1977) Conflicts as Property, British Journal of Criminology, 17(1), 1-15
Abstract
‘CONFLICTS are seen as important elements in society. Highly industrialised societies do not have too much internal conflict, they have too little. We have to organise social systems so that conflicts are both nurtured and made visible and also see to it that professionals do not monopolise the handling of them. Victims of crime have in particular lost their rights to participate. A court procedure that restores the participants’ rights to their own conflicts is outlined’.
Commentary
A true classic, Nils Christie’s ‘Conflicts as Property‘ although not specifically on restorative justice has contributed to define the space within which the theory of restorative justice has arisen, a trailblazer, a key piece of restorative justice theory’s pre-history.
Eglash, A. (1977) Beyond restitution: creative restitution. In J. Hudson and B. Galloway (eds.), Restitution in criminal justice (pp. 91–129). Toronto: Lexington Books
Excerpt
‘Punishment and treatment are primarily concerned with offender behavior, while restorative justice focuses on the harmful effects of such behavior on victims of crime. Similarly, punishment and treatment overlook victims except as witnesses, place offenders in a passive role of receiving corrective action, and remove offenders from the situation in which the offense occurred. In contrast, restorative justice places emphasis on victims and their needs and gives them an important role to play in achieving justice and developing a rehabilitative or correctional program. Creative restitution keeps offenders in the situation and transforms their exploitative and harmful behavior into charitable behavior. This type of restitution, as a form of guidance, recognizes that guidance destroys fixed patterns so that learning can occur, but it does not prevent errors. A restorative approach to creative restitution accepts both free will and psychological determinism...’
Commentary
Another pre-historical classic, Eglash’s ideas around restitution contributed to pave the way for the theoretical building of restorative justice. His ideas were first elaborated in a series of papers published in 1957-58 on the concept of creative restitution.
Barnett, R. E., (1977) Restitution: A New Paradigm for Criminal Justice, Georgetown Law Faculty Publications and Other Works, 1558.
Abstract
‘This paper will analyze the breakdown of our system of criminal justice in terms of what Thomas Kuhn would describe as a crisis of an old paradigm- punishment. I propose that this crisis could be solved by the adoption of a new paradigm of criminal justice-restitution. The approach will be mainly theoretical, though at various points in the discussion the practical implications of the rival paradigms will also be considered. A fundamental contention will be that many, if not most, of our system’s ills stem from errors in the underlying paradigm. Any attempt to correct these symptomatic debilities without a reexamination of the theoretical underpinnings is doomed to frustration and failure. Kuhn’s theories deal with the problems of science. What made his proposal so startling was its attempt to analogize scientific development to social and political development. Here, I will simply reverse the process by applying Kuhn’s framework of scientific change to social, or in this case, legal development.‘
Commentary
Another text widely acknowledged as constituting the restorative justice canon, Burnett’s is a theoretical reflection built around Thomas Kuhn’s epistemological concept of paradigm, applied to criminal justice. A reply to Burnett was published by Franklin Miller in 1978, ‘Restitution and Punishment: A Reply to Barnett,’ Ethics, Vol. 88, No. 4 (Jul., 1978), pp. 358-360
M. Wright (1977) Nobody Came: Criminal Justice and the Needs of Victims, Howard Journal of Penology & Crime Prevention, 16(1), 22-31 (1977-1978)
Abstract
‘A crime is, at least, a disturbance, at the worst, a disaster, in people’s lives’.
Commentary
Less known that the other foundational 1977 articles by Christie, Eglash and Barnett, Wright’s ‘Nobody came’ is instead as much as the abovementioned one of the first contemporary attempts to create a space for the development of what later on will be defined as ‘restorative justice’. It introduces the idea that the victim should be helped by the offender while the latter makes amends to the former and the larger community. Wright will go on to produce multiple papers and books on restorative justice in the following years, among these is worthy mentioning, Making Good: Prisons, Punishment and Beyond. (London: Hutchin, 1982) and Justice for Victims and Offenders (Waterside Press, UK., 2nd ed., 1996).
M. Cain (1985) Beyond Informal Justice, Contemporary Crises, 9, 335-373
Abstract
‘The debate about informal justice, deregulation, and popular justice has run into stalemate. Once again, it seems, high hopes shared by both left and liberal reformers have been dashed. Academic criticism and negative evaluation have created a growing chorus of despair, a feeling that the devil of formal justice whom we know may, after all, be better than his dangerously unfamiliar informal brother. This chorus is occasionally punctuated by an attenuated left wing squeak of hope that by some dialectical feat a “genuinely” human and popular form of justice may emerge in spite of all from this newly identified diabolicial situation ...’
Commentary
Not a paper on restorative justice but on informal justice, chosen here to represent part of the athmosphere which in the early 1980s contributed to the development of restorative justice. Other excellent examples are included in R. Abel (ed.),The Politics of Informal Justice, New York: Academic Press and Christine B. Harrington and Sally Engle Merry (1988) Ideological Production: The Making of Community Mediation, Law & Society Review, 22(4) Special Issue: Law and Ideology, pp. 709- 736
B. Galaway (1988) Crime Victim and Offender Mediation as a Social Work Strategy, Social Service Review, 62(4), pp. 668-683
Abstract
‘Juvenile offenders and their victims are brought together to discuss the offense/victimization and to negotiate a mutually satisfactory restitution plan. One hundred sixty-five offenders participated in the first 2 years. One hundred sixty-two victims were involved in the offenses and 54 percent (87) decided to meet their offenders. One hundred twenty-eight agreements were negotiated involving 99 offenders and 84 victims. Seventy-nine percent of the agreements were successfully closed. Crime victim and offender mediation will be useful for social workers; mediation provides an opportunity for both victims and offenders to participate actively in decision making and challenge stereotypes through a process of communication. From a policy perspective the practice provides a mechanism to respond to victim interest in participating in the justice system and provides a dispute settlement procedure to replace other responses to property offenders. A growing body of research indicates that mediation is feasible and acceptable to both victims and the general public and that the public supports replacing prison and jail with restitution, community service, and mediation as a response to property offenders. .‘
Commentary
Victim-Offender Mediation was originally a separate phenomenon from what we call today ‘restorative justice’. At one point, it converged with the emerging restorative justice universe which was slowly but surely gaining more traction among practitioners, scholars and policymakers, increasing its epistemic and political purchase, in the 1990s. A similar contribution is Umbreit, M.S.(1986) Victim offender mediation: a national survey, Federal Probation, 50, 1986, pp. 53-56 and Blagg, H. (1985), ‘Reparation and Justice for Juveniles: The Corby Experience’, British Journal of Criminology, 25, 267-79. An interesting and partly related read here is De Haan, W. (1990), The Politics of Redress: Crime, Punishment and Penal Abolition. London: Unwin Hyman.
Braithwaite, J. (1989). Crime, shame and reintegration. Cambridge: Cambridge University Press.
Abstract
‘Crime, Shame and Reintegration is a contribution to general criminological theory. Its approach is as relevant to professional burglary as to episodic delinquency or white collar crime. Braithwaite argues that some societies have higher crime rates than others because of their different processes of shaming wrongdoing. Shaming can be counterproductive, making crime problems worse. But when shaming is done within a cultural context of respect for the offender, it can be an extraordinarily powerful, efficient and just form of social control. Braithwaite identifies the social conditions for such successful shaming. If his theory is right, radically different criminal justice policies are needed – a shift away from punitive social control toward greater emphasis on moralizing social control. This book will be of interest not only to criminologists and sociologists, but to those in law, public administration and politics who are concerned with social policy and social issues..
Commentary
Another pre-historical classic, a foundational contribution to the connection between restorative justice and reintegrative shaming which to some still appear as indissoluble. Among the many reflections written on and from this work it is worthy mentioning Walgrave, L., Aertsen, I. (1996) Reintegrative shaming and restorative justice. Eur J Crim Policy Res 4, 67–85. Braithwaite will more directly elaborate on restorative justice and shame in multiple papers and books such as Braithwaite, J. and Mugford, S. (1994) Conditions of Successful Reintegration Ceremonies. Brit. J. Criminology, 34(2), 139-171; Braithwaite, Stephen Mugford, J. (1999). Restorative justice: Assessing optimistic and pessimistic accounts. In M. Tonry (Ed.), Crime and justice: A review of research, 25, 1–21. Oxford: University of Chicago Press, and Braithwaite, J. (2002b). Restorative justice and responsive regulation. Oxford: Oxford University Press. Other works by Braithwaite in the field explore the link between restorative justice and republican theory, such as Republican Criminology and Victim Advocacy, Law & Society Review, 28(4) (1994), pp. 765-776 (with P. Pettit).
Zehr, H. (1990). Changing lenses: A new focus for crime and justice. Scottsdale, PA: Herald Press
Abstract
‘Definitions and assumptions that govern thinking about crime and justice in the Western countries are “lens” or the “paradigm” through which the public and policymakers view the nature and purpose of criminal justice institutions. The current perspective of crime and justice in the West is a “retributive” lens that focuses on the punishment of the offender according to the severity of the crime. Under this lens, crime victims are on the periphery. Crime victims have many needs, most of which are ignored by the criminal justice system. In some cases, the justice system increases the victim’s emotional injury. Offenders are less ignored by the criminal justice system in terms of procedural rights, but their needs for accountability, for closure, and for healing are often ignored. This way of viewing and responding to crime, however, is not the only way. It has not been the dominant lens for most of Western history. Neither is it the biblical view of crime and justice. This book proposes a “restorative” model that is more consistent with experience, with the past, and with the biblical tradition. This model is based on the needs of victims and offenders, on past ways of responding to crime, on recent experiments, and on biblical principles...’
Commentary
Changing Lenses is possibly the direct inception of contemporary restorative justice, there is a before and an after with respect to this book: whilst everything before can be considered pre-history of the movement, everything after is contemporary history of it. A true classic.
Zehr got to this book after publishing a handful of papers on proximate subjects: Zehr, H. (1980) Mediating the victim-offender conflict. New Perspectives on Crime and Justice (issue 2). Akron, PA: Mennonite Central Committee Office of Criminal Justice.; Zehr, H. (1985).Retributive justice, restorative justice. New Perspectives on Crime and Justice (issue 4). Akron, PA: Mennonite Central Committee Office of Criminal Justice; Zehr, H., & Umbreit, M. (1982) Victim offender reconciliation: An incarceration substitute? Federal Probation, 46(4), 63–68) and then followed by Zehr, H. (2002). The little book of restorative justice. Intercourse, PA: Good Books.
H. Messmer and H.U. Otto (eds.) (1992) Restorative Justice on Trial, Dordrecht: Kluwer Academic Publishers
Abstract
‘Victim-offender reconciliation schemes are viewed as an important and innovative alternative to the traditional measures of the criminal justice system. After a critical look at the United States, most European countries have also increased their efforts to develop important organizational base, it turns out that the type, extent, and capacities for development are quite different in the individual countries. The major objective of the present book is a critical examination of victim-offender mediation programs. Research findings are reported in the areas of: legal and public demands; organizational requirements and outcomes; the mediation process. It is found that the implementation of victim-offender mediation depends to a great degree on particular context conditions. This applies not only to the special preferences of the institutions that encourage, support, or implement the programs. It appears, nevertheless, that mediation is acceptable to a variety of backers, and that it offers a viable alternative when considering reforms of the criminal justice system. Despite their many successes, the mediation schemes are not without their failures and these are analyzed in context in order to provide a sign-post for the future development of such schemes. Guidelines for such developement are presented, with the aim of strengthening the preventive aspect of the schemes and increasing their utility to social and criminal policy...’
Commentary
One of the first comprehensive explorations of the still blurred boundaries between victim-offender mediation and restorative justice.
Weitekamp, E. (1993) Reparative justice. European Journal of Criminal Policy and Research, 1, 70–93
Abstract
‘Quite unlike laws found in today’s societies, the laws of more primitive societies contained monetary evaluations for most offences as compensation to the victims, not punishment of the criminal. Although this approach had nearly disappeared, restitution, victim-offender reconciliation, mediation between victims and offenders, and reparation schemes were rediscovered in the early 1970’s. The commonly accepted definition of restitution/reparation is payment to victims of crime by an offender to cover losses incurred from the crime…‘
Commentary
An important early contribution to the European debate on restorative justice by Elmar Weitekamp, who will write again on the history of restorative justice, e.g. Elmar G.M. Weitekamp (1999), The History of Restorative Justice, in L. Walgrave and G. Bazemore (eds), Restorative Juvenile Justice: Repairing the Harm of Youth Crime, Monsey, NY: Criminal Justice Press, pp.75-102.
Ashworth, A. (1993) Some Doubts about Restorative Justice, Criminal Law Forum, 4(2), 277-299
Abstract
‘The attention paid to the crime victim during the criminal process has varied markedly over the centuries, as Daniel Van Ness notes in his thought-provoking article) In many countries it was not until the nineteenth century that public agencies took over the function of prosecuting. Nils Christie has depicted this development in terms of the state’s “stealing the conflict” from the two parties, victim and offender...’
Commentary
A well-known critique, perhaps the first legalistic critique of restorative justice from a renowned legal scholar, which has broken new ground in this area provoking much debate, starting from the reply by Daniel Van Ness. Within the same area (legalistic critiques of restorative justice) some other key contributions are L. Zedner (1994) Reparation and Retribution: Are They Reconcilable? The Modern Law Review, 57(2), 228-250 and Andrew von Hirsch, Julian V. Roberts, Anthony E. Bottoms, Kent Roach and Mara Schiff (2003), Restorative Justice and Criminal Justice Competing or Reconcilable Paradigms? London: Bloomsbury.
Walgrave, L. (1995) Restorative justice for juvenile: just a technique or a fully fledged alternative? The Howard Journal, 34(3), 228-249.
Abstract
‘In most industrialised countries a specialised justice system for juvenile crime exists. The discussions which surround this approach revolve around the balance to be struck when combining educative aims with penal justice principles. The continued quest for an ideal combination seems to be a ‘mission impossible’. A way must be found to resolve this impasse. Experiments with restorative justice are an extremely promising avenue for further exploration. In doing so, far more than a simple alternative technique seems to be at issue, but goes to the roots of the social and ethical governance of our societies‘
Commentary
An excellent example of the European debate on restorative justice from a key scholar for the development of the movement on the continent and in Belgium particularly, advocating a ‘maximalist’ approach to restorative justice. The debate within maximalist and purist advocates is an interesting segment of the restorative justice universe, due to its relevance particularly for how to respond to the growth (and mainstreaming) of the movement. An interesting position here is expressed by McCold in a number of papers such as McCold, P. (2000). Toward a mid-range theory of restorative criminal justice: A reply to the Maximalist model. Contemporary Justice Review, 3, 357–414.
Marshall, T. (1999) Restorative Justice: An Overview. A report by the Home Office Research Development and Statistics Directorate
‘The commonly accepted definition for “restorative justice” used internationally is “a process whereby parties with a stake in a specific offense resolve collectively how to deal with the aftermath of the offense and its implications for the future.” Objectives of restorative justice are to attend to victims’ needs, reintegrate offenders into the community, enable offenders to assume responsibility for their action, recreate a working community that supports victims and offender rehabilitation, and avoid escalation of legal justice and the associated costs and delays. Some of the assumptions of restorative justice are that crime originates in social conditions and relationships in the community; that crime prevention depends on communities taking responsibility for remedying conditions that cause crime; that the aftermath of crime must include the personal participation of those involved in the crime; and that justice measures must be sufficiently flexible to respond to the particular circumstances, personal needs, and appropriate action in each case. It is generally accepted by advocates of restorative justice that it can and should be integrated as far as possible with criminal justice as a complementary process that improves the quality, effectiveness, and efficiency of justice as a whole. Examples of restorative justice in practice include victim-offender meetings that may result in restitution and community service performed by the offender; community support for victims; and community efforts to help offenders in the areas of employment, education, mentoring, and social integration. Other topics covered in this paper are the limitations of restorative justice, organizations that promote restorative justice, research on restorative justice practice, restorative justice and crime policy, major issues in the development of restorative justice, and theories related to restorative justice’
Commentary
A key contribution to the development of restorative justice in the UK. A similar type of overview is Miers, D. (2004) Situating and researching restorative justice in Great Britain. Punishment & Society, 6(1), 23–46.
Van Ness, D. and and Strong, K. H. (2001) Restoring Justice, Cincinnati, Anderson, US, 2 edition.
Abstract
‘Restoring Justice: An Introduction to Restorative Justice offers a clear and convincing explanation of restorative justice, a movement within criminal justice with growing worldwide influence. It explores the broad appeal of this new vision and offers a brief history of its development. The book presents a theoretical foundation for the principles and values of restorative justice and develops its four cornerpost ideas of encounter, amends, inclusion and reintegration. After exploring how restorative justice ideas and values may be integrated into policy and practice, it presents a series of key issues commonly raised about restorative justice, summarizing various perspectives on each. .‘
Commentary
Restoring Justice is one of the most widely read (5 editions so far) general/textbook introduction to restorative justice worldwide. Simple, clear, fairly wide-ranging provides an easy entryway into the restorative justice universe.
Johnstone, G. (2002) Restorative Justice: Ideas, Values, and Debates, Willam Publishing.
Abstract
‘Restorative justice is one of the most talked about developments in the field of crime and justice. Its advocates and practitioners argue that state punishment, society’s customary response to crime, neither meets the needs of crime victims nor prevents reoffending. In its place, they suggest, should be restorative justice, in which families and communities of offenders encourage them to take responsibility for the consequences of their actions, express repentance and repair the harm they have done.’.
Commentary
Same as above, this is an excellent introduction to the field, which has widely contributed to solidify some of its basic concepts
Crawford, A. and Newburn, T. (2002) Recent Developments in Restorative Justice for Young People in England and Wales: Community Participation and Representation, The British Journal of Criminology, 42(3), 476–495,
Abstract
‘This article examines some recent attempts to introduce elements of restorative justice into the youth justice system. We focus on the introduction of referral orders and youth offender panels and, in particular, consider the issues of community participation and representation. In examining the early experiences of these new ways of working we highlight a series of questions that arise out of the tension between the participatory character of restorative justice and the managerialist nature of much contemporary youth justice in England and Wales. ...’
Commentary
Perhaps a bit of a stretch to consider this paper a classic, however, it does deserve attention as one of the first comprehensive empirical evaluations of restorative justice for young people in the UK, where in the late 1990s a self-declared (by New Labour policy-makers) restorative approach to juvenile justice was launched, with rather disappointing results, as Crawford and Newburn showed.
Daly, K. (2002) Restorative justice The real story, Punishment & Society, 4: 55-79
Abstract
‘Advocates’ claims about restorative justice contain four myths: (1) restorative justice is the opposite of retributive justice; (2) restorative justice uses indigenous justice practices and was the dominant form of pre-modern justice; (3) restorative justice is a ‘care’ (or feminine) response to crime in comparison to a ‘justice’ (or masculine) response; and (4) restorative justice can be expected to produce major changes in people. Drawing from research on conferencing in Australia and New Zealand, I show that the real story of restorative justice differs greatly from advocates’ mythical true story. Despite what advocates say, there are connections between retribution and restoration (or reparation), restorative justice should not be considered a pre-modern and feminine justice, strong stories of repair and goodwill are uncommon, and the raw material for restorativeness between victims and offenders may be in short supply. Following Engel, myth refers to a true story; its truth deals with ‘origins, with birth, with beginnings. . . with how something began to be’ (1993: 791–2, emphasis in original). Origin stories, in turn, ‘encode a set of oppositions’ (1993: 822) such that when telling a true story, speakers transcend adversity. By comparing advocates’ true story of restorative justice with the real story, I offer a critical and sympathetic reading of advocates’ efforts to move the idea forward. I end by reflecting on whether the political future of restorative justice is better secured by telling the mythical true story or the real story. .‘
Commentary
Kathleen Daly has published extensively on restorative justice. This is one of her most widely known and cited works, which certainly deserves attention, in spite of its rather dogmatic tone
Morris, A. (2002) Critiquing the Critics: A Brief Response to Critics of Restorative, The British Journal of Criminology, 42(3), 596–615
Abstract
‘Restorative justice has been subject to a number of attacks, both empirically and philosophically. This paper attempts to address some of these criticisms and suggests that they stem in part from misunder- standings about what restorative justice seeks to achieve and in part from demanding too much from restorative justice at this stage in its development. Attempts to evaluate restorative justice are also relatively recent. Critics, however, tend to either ignore the available research findings or to present them negatively. Critics also fail to contrast what restorative justice has achieved and may still achieve with what conventional criminal justice systems have achieved. Drawing from research, particularly from New Zealand, which has put restorative justice principles into practice to a greater extent than other jurisdictions, this review suggests that there are reasons to be relatively positive about the re-emergence of restorative justice’.
Commentary
An interesting paper addressing some of the early critiques levelled against restorative justice.
Ruggiero, V. (2011) An abolitionist view of restorative justice, International Journal of Law, Crime and Justice, 39(2), 100-110.
Abstract
‘Penal abolitionism is known for its unconventional analysis of crime, the law and punishment. Some critical views of restorative justice emerge when the alternatives to imprisonment advocated by abolitionists are examined. This paper discusses such views, highlighting their critique of professionalism and their emphasis on community conflict regulation. .‘
Commentary
Not exactly a classic, but a crucial contribution to understand the debated relations between restorative justice and penal abolitionism, from one of the most authoritative penal abolitionists in the world.
“Conflict might kill, but too little of them might paralyse.“
Nils Christie