Zwelethemba epitomises restorative justice in South Africa, is popular amongst the community and is the essence of maintaining peace in the community (Roche, 2004: 85). Money received from this programme is contributed back into the community to reduce poverty and unemployment and attempt to remove the need for ‘draconian repressive measures (Roche, 2004: 231). This programme has clearly achieved the acceptance Professor Acorn considers to be implausible, improbable and impossibly demanding (Acorn, 2004). Blakemore suggests that social policy should evaluate how those policies impact on peoples’ lives (Blakemore, 1998: 5).
Where law has been defined as binding obligations on the one hand and a duty on the other relating to the expectations of that society (Kidder, 1983: 21 citing Malinowski), a method of redress needs to limit any effects of deviation. A framework of behaviour needs to be adhered to, described as primary when survival depends upon them (Tebbitt, 2000: 42 citing Hart). This complicated arrangement between law and morality enforces acceptable behaviour which is maintained through rules and principles: “the cement of society” (Elliott and Quinn, 1998: 449 citing Devlin).
This ‘cement’ illustrates legal moralism that has been identified as ‘socially significant’ (Cotterrell, 1989: 1), providing an analysis of law’s conceptual structures (1989: 3). Emerging from these theories are different schools of thought, some suggesting that laws are the result of morals, others refuting this. Some considered law was allied closely to the ethos of society whilst others sought a link between law and politics. All of these conflicting views, however, impacted on the relevance and concepts associated with restorative justice.
This essay briefly traces the various theories of jurisprudence associated with the development of law in association with social policy and discusses advances in the Criminal Justice System. It then examines the contention vis-à-vis the role of punishment in society, then attempts to reconcile these various aspects whilst focussing on the efficacy of restorative justice and, most especially, personal assumptions about the place of punishment in society following personal investigations into the role of restorative justice.
A fidelity to maintaining society’s principles prevented ostracism within simple societies, described by Durkheim as ‘mechanical solidarity’ (Pampel, 2000: 57). This supported the economic, political and social ethos interacting within those communities where an interdependence on duty overcame the need for self-interest (Pampel, 2000: 57). This concept of social realism emphasised the importance of shared values, ultimately influencing individuals’ behaviour (Pampel, 2000: 57). A high level of social cohesion existed in simple societies as a result, with morality reflecting social realism realised through the use of law to safeguard the essence of its continued success (Lanser and Vanstone, 1998: 83). With the growing complexity of more developed societies more rules were needed to maintain acceptable behaviour (Elliott and Quinn, 1998: 434).
A decline in shared values as the result of organic solidarity differentiating collective conscience creates an environment for an increase in crime. Durkheim observed a greater differentiation impacted directly on the types of punishment issued to offenders (Wacks, 1987: 164). Controversially Durkheim considered a particular amount of crime increased solidarity amongst communities as they banded together in an attempt to ‘stamp it out’ (Pampel, 2000: 67) and that “crime is normal and valuable in a healthy society” (Cotterrell, 1992: 159), with shared morality reaffirming ideas of right and wrong thereby increasing the importance of law through violations of accepted rules instil potential meaning into the rules (Pampel, 2000: 67).
This increased solidarity creates emotional bonds within social groups, the outcome of which leads to an identification of crime as deviance, with a recognition of diversity between types of deviance in different societies (Pampel, 2000: 67). This philosophy of inter-related support has been recognised as structural functionalism which, taken to extremes, acknowledges that poverty and crime are normal and natural functions within any healthy society (Pampel, 2000: 75). Professor Acorn elaborates on a similar concept with her ‘Three Pillars of Restorative Optimism’ which relates to a reciprocity between justice and punishment being replaced by that of justice and mutual respect. This is followed by the tenets of faith altering the offender’s concept of society’s acceptance, to which Professor Acorn adds the application of faith through victim-offender encounters initiating healing in the victim (Acorn, 2004).
Weber also recognised the importance of power and authority in society, especially in relation to its effect on social policy and the state as a whole, although his views followed a different path to Durkheim (Levin, 1997: 24). Law could be rationalised into ‘formal systems’ and ‘substantive systems’, dependent upon their degree of self-sufficiency. Those laws, once applied, could be distinguished as ‘rational’ or ‘irrational’(Wacks, 1987: 169). Authority and the development of power within society was largely a result of economic advantage (Pampel, 2000: 106), whilst “much policy making (in respect of political parties)….is about maintenance of the status quo and resisting challenges to existing values” (Bachrach et al, 1970).
Antonio Gramsci (1971) takes this a step further by commenting: ‘the life of the State is conceived of a continuous process of formation and superceding of unstable equilibrium” (Clarke & Newman, 1997: xiv). Weber “defined formal rationality as the use of calculation to weigh cost and benefits and the search for maximum efficiency to guide conduct (subject to existing laws, rules and regulations)” (Haynes, 1980: 9). In relation to the size of the community or state, Weber considered “only formally rational rules that regulated conduct could deal with the massive size of the modern nation-state” (Pampel, 2000: 109).
Using the background of the growing bureaucracies, Weber studied the effects of power. John Stuart Mill, an earlier English jurist wrote in his ‘Essay on Liberty’: “the only purpose for which power can be rightfully exercised over any member of a civilised community against his will is to prevent harm to others” (Lanser & Vanstone, 1998: 83). Would the views of JS Mill have been consistent with this use of power in relation to bureaucratic societies? As part of his study Weber looked at legal authority and suggested that when it involved “laws, regulations, and rules that specify appropriate actions, it guides bureaucracies in modern societies” (Turner, 2000: 140). He talks about ‘charismatic authority’ which he suggests is “based on social relationships” (Turner, 2000: 140). Weber suggests that “charismatic authority disrupts the accepted social order and challenges traditional and legal authority” (Pampel, 2000: 114).
The Royal Commission on Criminal Justice was set up to “examine the effectiveness of the criminal justice system in England and Wales in securing the conviction of those guilty of criminal offences and the acquittal of those who are innocent” (Zander, in Martin, 1998). The Runciman Commission made 352 recommendations in 1993 from police investigations to disclosure of evidence (Field and Thomas, 1994 in James and Raine, 1998: 40). All aspects of the criminal justice system came under scrutiny with 600 organisations contributing to its evidence (Martin, 1998: 115). During this period, the Criminal Justice and Public Order Act 1994, the Criminal Appeal Act 1995 and the Criminal Procedure and Investigation Act 1996 were all implemented with varying interpretations and capricious emphases which altered according to Management changes.
Pampel observes, however, that ‘the problems of society become most visible when change occurs, and recent decades have brought immense social and economic changes” (Pampel, 2000: 52)whilst Durkheim noted that society works best when it exercises control over individuals (Pampel, 2000: 72) with Weber maintaining that “societies work more smoothly when the use of power has legitimacy in the eyes of both the rulers and the ruled” (Pampel, 2000: 113) as can be seen from this example:
Section 5 [Public Order Act, 1986] was initiated in respect
of a football supporter using foul language in the presence
of a woman and two small children: ‘Broadbury Road, Case 319:
the incident occurred in the family stand at a football stadium.
The suspect was observed using obscene language when a woman
with small children was sitting directly in front of him. He was
warned but continued to be abusive, claiming when arrested that
“I ain't fucking done nothing” (HMSO, 1986).
This illustrates the subjectivity of law’s application to society. Expletives, as an integral expression of language, have reflected the rapid social changes within this last century. This ‘offence’ is a subjective interpretation which, although offensive, should be interpreted in correlation with the situation: in this case acknowledged as an offence due to the presence of the two small children. To paraphrase Rawls whose recognition of “this public concept of justice as others accepting the same principles of justice and the basic social institutions satisfying those same principles” (Rawls, 1986), the purpose of law is to dispense justice and, in a perfect world, laws being just would result in the outcome realised in justice. Laws are intended to regulate relationships with the result that conflict is avoided, enabling government and education to progress
Deterrence, retribution, rehabilitation and incapacitation constitute the four major theories of punishment. Deterrence aims to reduce crime through threat of punishment, or through its example. The concept is that the experience of punishment would create an impact unpleasant enough to prevent any further offence. Penalties are established to prevent crime being contemplated, with the idea that the example of unpleasant consequences would make potential criminals reconsider any future offence. Retribution requires an offender to contribute community-based endeavours through proportionality related to the crimes committed.
The concept involves cleaning the slate through enforced labour to account to society for any misdemeanour. With the intention of better justice through more consistent sentencing the White Paper preceding the Criminal Justice Act 1991 suggested “that convicted criminals get their just deserts”. This concept does actually limit the State’s power through limiting exemplary sentences, achieving parity when two offenders receive similar punishments for similar crimes. The National Victim Support Programme was considered a way forward with respect to society’s acceptance of restorative justice but “both of the major political parties have pursued half formed and in many ways half hearted policies in relation to victims of crime. There is little indication of change in this area” (Newburn and Crawford, 2002: 117).
Conformity through inner positive motivation exemplifies the theory of rehabilitation, although it has been criticised for disparity in proportionality. The concept is not based on the degree of offence committed or focused on the criminal’s past, but on future rehabilitation to preclude re-offending through changes of circumstances. Conversely, incapacitation recognises that some offenders fail to respond to deterrence or rehabilitation and continue to commit crimes as and when an opportunity to do so presents itself. For criminals with this mindset the only option is protective sentencing to prevent further crimes being committed, thereby punishing the offender for crimes committed with a further implication of punishment for future crimes that could be envisaged if released.
An equally important part of restorative justice must be in measures to prevent crimes being committed. Funding of £6 million has been invested in a Government programme to reduce crime. Some of these measures include restorative justice, enforcement of financial penalties, CCTV initiatives, treatment of offenders, youth inclusion initiatives, targeting policies and intervention work in schools. To be effective in developing suitable policies the criminal justice system need to approach the problem from different angles simultaneously, and adopt a policy of co-operation and co-ordination across all involved parties. Since the inception of the Regional Crime Squads (South cited in Maquire, 1994, 423), co-operation has existed across autonomous police forces, and surveillance & intelligence squads can acquire information which, along with co-operation from the other agencies which make up the criminal justice system, can be collated and used to prevent some of the worst excesses of violence and crime erupting.
Novick argues that the basis of the State is ‘a need for a single and efficient protective association in a territory’ (McCoubrey & White, 307) with Jacques considering that ‘economic efficiency needs to be assessed in respect of its impact on human feelings, on community and on social relationships and the quality of life in society’ (Jacques, 1976, 15). Adjudication provides a formal mechanism for resolving disputes, with rules of change available to deal with new problems requiring further elucidation and rules of recognition involving prerogative powers and the sovereignty of Parliament. These rules do not account for those natural rules which acknowledge those inherent fundamental human rights. “Justice is traditionally thought of as maintaining or restoring a balance or proportion and its leading precept is often formulated as 'treat like cases alike and treat different cases differently’ ” (Hart, 1998).
Finnis observes that “The prohibitions of the criminal law have a simple justifying objective: that certain forms of conduct including certain omissions shall occur less frequently than they otherwise would. The 'goal' of the familiar modern system of criminal law can only be described as a certain form or quality of communal life, in which the demands of the common good indeed are ambiguously and insistently preferred to selfish indifference or individualistic demands” (Finnis, 2002). This acknowledges that each individual is aware that deviation from society’s code of behaviour would result in sanctions being applied to avoid injustice.
The ethos Finnis applies to his explanation of retribution is considered to rectify the distribution of advantages and disadvantages by depriving the convicted criminal of his freedom of choice in proportion to his unlawful act. Regardless of theories, an escalating scale of crimes continue to be committed with 5.2 million offences recorded in England and Wales during 2000 (Recorded Crime, HMSO Press Release, 19/01/01) which, when compared to 3.87 million in 1989 and 479,40,018 in 1950 has an effect on long term projections in the prison population to 2008 (HMSO Press Release, 23/05/01). Evidence of this was exhibited when the disturbances in Strangeways prison took place in 1990, prompting the Woolf Report (Custody, Care and Justice, HMSO, 1991). It was published as a White Paper in 1991 and highlighted the relationship between overcrowding in prisons and the maintenance of control, promoting ongoing discussions about the aims of imprisonment.
Meanwhile, the crime response and solving rate has fallen from 45% to 29% despite the number of police officers having increased from 63,100 to 126,500 (Figures taken from Cautions, Court Proceedings & Sentencing, Home Office press release Nov 2001). Maguire suggests that “increasing numbers of police officers, an increase in telephones making reporting easier, increasing use of insurance, and reduced levels of public tolerance to violence have all contributed” (Maguire, cited in Croall, 1997). Stern recognises the system often precludes dedicated people from a more effective route of exacting retribution (Stern, 1989: 247).
The diversity of ideas and practices associated with the restorative justice movement exemplify the difficulties associated with the concept. Johnstone (A Restorative Justice Reader: Texts, Sources, Contexts) highlights the paradigm of justice associated with practical experimentation that underlies the values and ideas which involve a number of models of theoretical law covering criminal and civil law together with restorative justice. The relevance of this earlier part of the essay reflects the ethos of restorative justice: this is not a new concept, nor can it be viewed in isolation. The philosophy of Aquinas is as relevant as Mill, Rawls as relevant as Durkheim or Weber.
Restorative justice is identified through mediation, conferencing, circles and reparative boards such as the utilisation of victim/offender mediation with the intention of reconciliation as opposed to merely conciliation. Three areas to be concentrated on in this respect are the how restorative justice can fit into the existing criminal justice system and the identity of a modern definition of community, followed by the ethos of forgiveness. Whilst this concept has relevance in today’s society, human rights issues and society’s concepts of punishment’s role create a rhetoric which still needs to be resolved.
Restorative justice is viewed with suspicion due to concern amongst the community in relation to appropriateness of restorative justice for cases of violence and the appropriate punishment in such cases. Added to this, the managerialism and financial control have impacted on the restorative justice movement. Where there is no precedent, the focus of control is balanced between local and central government, with penal reform likely to be forced into the background as “the front bench Home Affairs spokesmen of both the major parties battling to 'out-tough' each other, there appears little prospect of coherent and forward-thinking policy-making” (Newburn and Crawford, 2002: 178).
Individual and collective morality would assume that offenders should be punished to maintain the stability of the community and maintain their safety. Our collective conscience ensures that the majority accept the rule of law and accept that deviance needs to be punished. Many organisations have highlighted the growth in recorded crime despite these measures in place to punish the offender. Punishment falls into various areas from incapacitation to retribution, deterrence to rehabilitation. Professor Acorn is not a supporter of restorative justice. She considers its ethos implausible in respect of social relations and psychology, resulting in improbable and impossibly demanding results revealed in empty words. Acorn suggests that vengeful impulses demand retribution and likens her descriptive ‘first pillar’ to “Pollyanna-ish wishful thinking” (Acorn, 2004).
Psychologically, restorative justice is assumed to invoke aesthetic sentiment of forgiveness for miscreants and release for victims. What it fails to do is provide society with assurances that their safety and integrity will be maintained in an atmosphere where the offenders’ rights appear to be upheld in variance with those of the victim, or the fundamental rights the victim is entitled to expect. A personal view could be recorded which considers that restorative justice exhibits illusionary tendencies to pacify the reformers at the expense of society’s status quo. Clearly, not a supporter of restorative justice this writer intuitively distorts the semantics and cognitively refers to this concept as retributive justice: more aptly named, and far more appropriate for the majority of offenders who, regardless of intervention programmes to rehabilitate them will continue to offend despite society’s best efforts.
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