History matters. Critique requires history – a crucial way of debunking ideas, concepts or theories which are passed onto us as obvious and unproblematic, and therefore natural and unchangeable, is writing their history, reconstructing the factors which condition their intelligibility. Once again this is not an exhaustive list but a range of examples of historical analyses which may orientate those interested in exploring critically restorative justice.
Weitekamp, E (1999) The History of Restorative Justice, in L. Walgrave and G. Bazemore (eds), Restorative Juvenile Justice: Repairing the Harm of Youth Crime, Monsey: Criminal Justice Press, 75-102.
Abstract
‘Blood revenge normally applied only in cases of homicide, and, because of its link to collective responsibility, allowed the victim’s clansmen to kill the offender or one of his clansmen. If a homicide occurred within a clan, blood revenge was impossible as the clan was both the victim and the offender simultaneously. Because blood feuds between kin groups were mutually destructive and potentially could cause more problems than they resolved, blood revenge was seldom used in acephalous societies to respond to homicides’.
Commentary
A well-known continuistic history of restorative justice, now a classic in the area, which argues for the existence of restorative justice as an ‘originary’ way of dealing with harms, across time and world civilisations.
Delgado, R. (2000) Goodbye to Hammurabi: Analyzing the Atavistic Appeal of Restorative Justice. Stanford Law Review, 52(4), 751-775.
Abstract
‘A recent innovation in criminal justice, the restorative justice movement has serious implications for the relationship among crime, race, and communities. Restorative justice, which sprang up in the mid-1970s as a reaction to the perceived excesses of harsh retribution, features an active role for the victims of crime, required community service or some other form of restitution for offenders, and face-to-face mediation in which victims and offenders confront each other in an effort to understand each other’s common humanity..’
Commentary
Another broad-ranging global history of restorative justice
Roach, K. (2000) Changing punishment at the turn of the century: Restorative justice on the rise, Canadian Journal of Criminology, 42, 249-280
Abstract
‘This paper examines the implications of the rise of restorative justice in criminal justice practice and discourse and whether a unified approach to criminal justice based on restorative justice is desirable or possible. Pure and partial theories of restorative justice are examined with an emphasis on the relation between restorative and retributive theories of justice...’
Commentary
An excellent, theoretically-informed historical analysis of the rise of restorative justice
Daly, K. (2002) Restorative justice: The real story, Punishment & Society, 4(1), 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 prac- tices 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…’
Commentary
A now classic historical analysis conducted with a rather ambitious attitude
Sylvester, D. (2003) Myth in Restorative Justice History, Utah Law Review, (1): 471-522.
Abstract
‘As the restorative justice movement surges breathlessly forward, its proponents feel an irresistible urge to glance back. Discontented with the view that restorative justice is a novel and innovative approach to criminal justice, many scholars have begun to disseminate a far older ideological and institutional history than the scant 30 years or so that restorative justice has been considered a real criminal justice movement. John Braithwaite, considered by many as the world’s foremost scholar on restorative justice, has declared no less than that “restorative justice has been the dominant model of criminal justice throughout most of human history for all of the world’s peoples.” Others have added that “humans have used restorative justice for the larger part of their existence.‘
Commentary
A classic study on the history of restorative justice, from a critical perspective
Devi-McGleish, Y., & Cox, D. J. (2018). From Weregild to a way forward? English Restorative Justice in its Historical Context. English Restorative Justice in its Historical Context (October 11, 2018). Wolverhampton Law Journal, 1(1).
Abstract
‘This article challenges the prevalent view of restorative justice as a new ‘technique’ within the English criminal justice system.1 By discussing a number of historical examples of nontraditional forms of justice, which the article argues can be seen as largely restorative in nature, it suggests that the use of restorative justice in the present day has a long tradition, albeit one whose historic practices and processes remain relatively unexplored by many criminologists. It does not presume to offer easy answers to the effectiveness or otherwise of restorative justice, but rather aims to present the ideas and theories behind the concept in an historical context in such a way as to illuminate possible avenues forward in its modern applications’
Commentary
A more recent paper arguing for the continuity between the ‘idea of restoration’ implicit in traditional forms of justice and what we call today ‘restorative justice’. Some excellent examples and provokative insights are offered.
Richards, K. (2009) Taking Victims Seriously?: the Role of Victims’ Rights Movements in the Emergence of Restorative Justice, Current Issues in Criminal Justice, 21(2), 302-320
Abstract
‘It is widely accepted in the literature on restorative justice that restorative practices emerged at least partly as a result of the recent shift towards recognising the rights of victims of crime, and increasing the involvement of victims in the criminal justice system. This article seeks to destabilise this claim. Although it accepts that there is a relationship between the emergence of a strong victims’ rights movement and the emergence of restorative justice, it argues that this relationship is more nuanced, complex and contingent than advocates of restorative justice allow‘
Commentary
Kelly Richards has produced some of the sharpest critical analysis of the historical emergence of restorative justice, often drawing from Michel Foucault’s genealogical approach. Other excellent contributions from Richards are Richards, K. (2011) Restorative Justice and “Empowerment”: Producing and Governing Active Subjects through “Empowering” Practice, Critical Criminology, 19(2):91-105; and Richards, K. (2005) Unlikely friends? Oprah Winfrey and restorative justice, Australian & New Zealand Journal of Criminology, 38 (3), 381-39
Gavrielides, T. (2011) Restorative Practices: From the early societies to the 1979s, Internet Journal of Criminology, 1-20.
Abstract
‘Restorative practices now appeal to the contemporary politician. Policies and practices are being reformed using the paradigm of restorative justice. However, little research has been done on its historical roots. Many have even claimed that restorative practices do not have a history at all. Through a review of historical and contemporary sources, this article challenges this claim. The paper provides a brief historical account of restorative practices stretching from the acephalous societies until the 1970s. Four eras are identified in the fall and rise of restorative justice through time. A historical debate and further academic research on restorative justice is warranted. The implications of a more informed understanding of the history of restorative practices are significant for their implementation in contemporary society’.
Commentary
An ambitious, wide-ranging, comprehensive survey of the global history of restorative justice
Green, S. (2013). The victims’ movement and restorative justice. In Handbook of Restorative Justice (pp. 193-213). Willan.
Abstract
‘What would we say about a movement that apparently forgot to invite most of its professed beneficiaries? What, if we discovered, for example, in the victims ‘movement’ that victims were, politically, all dressed up but had no place to go? What kind of movement would it be? Would it really be a movement at all?’
Commentary
A critical work on a crucial dimension of the historical emergence of restorative justice
Maglione, G. (2020) The political rationality of restorative justice. Theoretical Criminology, 23(4), 545-562.
Anstract
‘This article investigates the political conditions that have enabled the development of restorative justice, in England and Wales, over the last 40 years. By applying a governmentality approach, it conceptualizes the emergence of restorative justice as a response to distinctive political problematics, enacted by a range of governmental technologies and driven by a combination of competing political rationalities. In so doing, the article seeks to shed light on the assemblage of ambivalent principles and values that constitute restorative justice by linking them to conflicting political contingencies. This could have implications in understanding both the fragmentary growth of restorative justice in England and Wales, and, more generally, the political roots of restorative justice policies, programmes and practices beyond the British borders’.
Commentary
This article is part of a wider series of paper exploring the politics of restorative justice from a historical perspective. The other related articles are Maglione, G. (2017) Embodied victims: An archaeology of the ‘ideal victim’ of restorative justice, Criminology & Criminal Justice 17 (4), 401-417; Maglione, G. (2019) The restorative justice apparatus: A critical analysis of the historical emergence of restorative justice, Social & Legal Studies 28 (5), 650-674 and Maglione, G. (2017) Communities at large: An archaeological analysis of the ‘community’ within restorative justice policy and laws, Critical Criminology 25 (3), 453-469
“The history of ideas, then, is the discipline of beginnings and ends, the description of obscure continuities and returns, the reconstitution of developments in the linear form of history.
Michel Foucault