Everything you always wanted to know about restorative justice

D e pa r t m e n t of C u l tu re a n d I de n ti t y, Ros k i ld e U n ive r s i t y Everything you always wanted to know about restorative justice*...
Author: Spencer Greer
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D e pa r t m e n t of C u l tu re a n d I de n ti t y, Ros k i ld e U n ive r s i t y

Everything you always wanted to know about restorative justice* Explained by Jakob v. H. Holtermann

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BUT WERE AFRAID TO ASK

Everything You Always Wanted to Know About Restorative Justice* (*But Were Afraid to Ask)

PhD-thesis by Jakob v. H. Holtermann, M.A. Roskilde University, July 29, 2009

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Contents1

Prologue ................................................................................................................................. 1 Chapter 1: Introductory Remarks ................................................................................ 3 Chapter 2: Outlining the Shadow of the Axe – On Restorative Justice and the Use of Trial and Punishment ............................................... 27 Chapter 3: The Hobgoblin of Little Minds – Restorative Justice and the Law .............................................................................................................. 57 Chapter 4: Caring About “How the World Happens to Be” – Reply to Davis ....................................................................................................................... 83 Chapter 5: A “Slice of Cheese” – A Deterrence-based Argument for the International Criminal Court ................................................................... 107 Chapter 6: The End of ‘the End of Impunity’? – The International Criminal Court and the Challenge from Truth Commissions ............... 143 Chapter 7: Philosophical Misconstruals in the Advocacy for Restorative Justice ................................................................................................ 165 References......................................................................................................................... 207 Index ................................................................................................................................... 217 Dansk resumé .................................................................................................................. 221 English abstract ............................................................................................................. 222

A PDF-version of this thesis is available for download and browsing at: http://retsfilosofi.dk/restorative.pdf 1

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Prologue

Howard Zehr, the “grandfather of the restorative justice movement”, visited Copenhagen in the fall of 2008. One night at the University of Copenhagen by the end of a well-attended lecture, Zehr took stock of the present state of the restorative justice movement. He described how, back in the early days when the movement was still struggling to gain foothold, overly enthusiastic advocates had perhaps gone too far in painting a rosy picture of the potential of restorative justice. Zehr stressed how things had now changed. As restorative justice had increasingly gained influence on actual criminal justice systems around the world, it had also matured considerably. Restorative justice was now a responsible and self-critical movement. The days of telling only “butterfly stories” of almost miraculous, mutual healing of victim and offender were gone. Today, proponents were well aware of the importance of telling also the “bullfrog stories” of restorative justice. Stories of the conferences where everything goes wrong and all leave the process being even worse off. Around the audience, several of whom were declared supporters of restorative justice, there were grave nods of approval. All seemed to be aware indeed of the importance of remaining critical. Of not getting carried away in blind support. In the two talks I heard Zehr give during his stay, he did not tell one bullfrog story.

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Chapter 1 Introductory Remarks

A title should be informative of the contents of the work it designates. So looking to the title of this work one might think that I am heading for trouble. Indeed, I have even thought so a couple of times myself – for instance, when I first showed it to a colleague who, after some silence, responded dryly: “Well, if you can’t take it seriously yourself…” But, however jaunty and apparently unsuitable for an academic work that actually does propose to be taken seriously, I think there is some sense to made of the title after all. And so I might as well spend (parts of) the following introductory remarks belabouring the point and try to explain why I nevertheless find the title both fitting and informative of the contents of the present work. Hopefully, this will help guide the reader through the pages to come. On the general character and subject of this thesis

The first consideration has to do with genre. This PhD thesis is not a monograph but consists of a collection of articles that have each been produced with a view to publication in scholarly journals.1 As are the well-known premises for such articles, they are each supposed to constitute completed arguments that, while they may refer to and rely to some degree on other works, should ideally constitute self-explanatory and self-contained narratives. Accordingly, the present work does not pursue one thesis that unites it, nor does it establish one single conclusion. Strictly, this makes for a nominalistic definition: the only thing that holds the articles together besides the binding is the author and the three year (plus) time period during which it was written. But this, of course, is not entirely I have therefore not changed the papers substantially for this thesis. I have only collected the references into one standardised reference list, unified the reference style and added an index. 1

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Everything You Always Wanted to Know About Restorative Justice

true.2 And the title is supposed to reflect this fact. Instead of postulating one uniting hypothesis and urge a classical “reading for the plot”, it is meant to signal that this is a work that covers various aspects of the same overarching subject, viz. restorative justice. Like the entries in Doctor Reuben’s original3, each article can therefore be read and studied independently of the other. Even still, this is obviously not a comprehensive study. Since its modern day revival in the 1970s and 1980s, restorative justice has ramified wildly into a massive social movement that encompasses worldwide initiatives involving responses to anything from school bullying over ordinary crime in national jurisdictions to mass violence in the shape of genocide, crimes against humanity and war crimes. Some have even suggested a transformative conception of restorative justice as a way of life that obliges us to “abolish the self … and instead understand ourselves as inextricably connected to and identifiable with other beings and the ‘external’ world.” (Johnstone & Van Ness 2007, p. 15) An exhaustive treatment of all of these aspects of restorative justice would take more than one man and a few years and the result could hardly be contained in a single volume. Trusting, therefore, that the irony of the title carries through, this thesis obviously does not contain everything the reader would like to know about restorative justice. I have indeed done some weeding out. First and foremost, this thesis is not about restorative justice as a way of life, nor is it about conflict resolution in the schoolyard, at the workplace or elsewhere. My focus is on restorative justice as it is used in relation to crime, primarily in the context of domestic jurisdictions (cf. chapters 2-4 and 7) but also in the context of international crime (cf. chapters 5 and 6). Taking this focus places me in a tradition that counts Nils Christie’s seminal article “Conflicts as Property” (1977) and Howard Zehr’s Changing lenses : a new focus for crime and justice (2005 [orig. 1990]) as

If so, this thesis would at least also have included an article on the Danish caricature crisis (Holtermann & Nielsen 2006) and a chapter on Alf Ross’ epistemology (Holtermann 2006) from the anthology Alf Ross. Kritiske gensyn (Holtermann & Ryberg 2006). 3 David Reuben’s taboo-breaking bestseller Everything You Always Wanted to Know About Sex* (*But Were Afraid to Ask) was first published in 1969. It was loosely adapted into a comedy film in 1972 by Woody Allen. 2

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Introductory Remarks

important theoretical starting points.4 Proponents in this tradition generally share a widespread scepticism with regard to the traditional criminal justice system and its preferred measures of trial and punishment, and a corresponding enthusiasm for responses to crime that involve, instead, the immediate stakeholders in deliberative processes such as victim-offender mediation, conferences and circles. Regardless of the nuances between them, these are all processes “where the parties with a stake in a specific offence resolve collectively how to deal with the aftermath of the offence and its implications for the future.” (Marshall 2003, p. 28) Even still, this loose agreement leaves much to be debated in the advocacy for restorative criminal justice. In particular, it leaves questions regarding the scope of restorative justice processes; questions that in turn have led to heated definitional debates. One starting point for these debates has been the growing awareness that not all crimes lend themselves equally well to deliberative processes between stakeholders. However successful the restorative justice movement, there will inevitably be some cases that are unfit for such processes; cases involving, for instance, openly uncooperative, hardened and dangerous offenders. This has led so-called purist proponents to stress the procedural element as a sine qua non for criminal justice responses to be genuinely restorative (cf. e.g. McCold 2000, 2004). Accordingly, such purists stick close to the above words of Marshall as constituting the definition of restorative justice. On this interpretation, restorative justice aligns itself closely with the abolitionist view on punishment according to which any use of coercive measures is morally unjustifiable. However, other, so-called maximalist proponents assess that a definition strictly in terms of process: … leaves restorative justice advocates with nothing to say regarding the way cases should be dealt with that – for whatever reason – do not lend themselves to some form of informal offence resolution process. (Dignan 2002, p. 175)

Even though at least Christie’s article has also been highly influential beyond the criminal justice tradition that is my focus. 4

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Everything You Always Wanted to Know About Restorative Justice

These proponents prefer, therefore, to define restorative justice in terms of outcome. On one suggestion this renders restorative justice “…an option for doing justice after the occurrence of an offence that is primarily oriented towards repairing the individual, relational and social harm caused by that offence.” (Walgrave 2008, p. 21) Proponents of this definition continue to couple the concern for reparation with a heavy preference for reaching it through deliberative processes, but they stand ready to include also “non-deliberative schemes, and even judicial sanctions with a view to reparation” (Walgrave 2008, p. 20). Instead of abolishing punishment entirely, then, maximalist proponents opt for a “future where punishment is marginalized.” (Braithwaite 1999a) To the extent that these definitional debates have taken shape as fights over which use of the concept of restorative justice is the real and proper one, this work does not constitute a comment to them. I have studied and discussed works by criminal justice theorists that consider themselves and are often described as proponents of restorative justice. But what the real restorative justice is I do not know. For pragmatic reasons, however, I have found it necessary to choose a focus for my discussions. And in so doing, I have found it most rewarding to focus on comprehensive restorative justice theories that purport to match the full scope of the traditional criminal justice system, i.e. by delivering guidelines for dealing with all kinds of criminal cases and not only those that conveniently conform with preconceived restorative notions. This has led me to focus in the articles primarily on maximalist, outcome-focused versions of restorative justice. But this, perhaps, is still too broad. This is a philosophical study of restorative justice. As such, it is placed in that area of legal and political philosophy where the evergreen question regarding justifiable action in response to crime is handled. This means that the present task is not simply a descriptive one of determining methods for dealing with various crimes. It is also normative in that it attempts to answer how, if at all, such methods can be justified. Not all restorative justice proponents, maximalist or other, are equally eager to address this aspect, and so I have found it necessary to focus on those who are (more on this below). In the split between comprehensive criminal justice theory and particular criminal justice measures or processes lingers also the risk of a terminological confusion. Strictly speaking, in those maximalist restorative justice theories that aim to deliver comprehensive answers 6

Introductory Remarks

to crime, all available criminal justice processes become restorative justice processes – including those perhaps only marginally used but nevertheless fairly traditional coercive measures we would normally call punishment. But when speaking of particular kinds of processes and practices, most maximalist restorative justice proponents continue to reserve the term restorative justice only for that subset of responses that is constituted by voluntary deliberative processes. Hence, we get the confusion of having comprehensive restorative justice theories recommending, inter alia, criminal justice processes that they prefer not to call restorative! In the pages to follow, I have tried throughout to keep the distinction between these two levels clear. It should, for the most part, be clear from the context whether discussion takes place on the level of theory or process, but in cases of doubt I have tried to use terms like voluntary deliberative processes, mediation or face-to-face encounters for the latter. Hopefully, I have managed to steer clear of confusion but the reader should be aware that both these meanings are at play, not only in this thesis but generally in the literature on restorative justice. I should like to note also that because the following chapters were all originally written as independent articles there are some overlaps between them. For the most part, these are minor repetitions of definitions and shorter recapitulative passages but the reader should be particularly warned about a longer passage in chapter 5 (pp. 110-122) that overlaps substantially with a corresponding passage in chapter 4 (pp. 83-102). In general, these recurrences are motivated either by attempts to bring to light new aspects of a known problem or by expositional considerations in the individual articles. Hopefully, the reader will be patient and not find the repetitions too tedious. On studying restorative justice – some meta-comments

I hold the belief that subtexts are important. That is to say, not all that is of philosophical, or more generally academic, importance takes place in the ideal realm of overt and transparent rational arguments. Despite appearances to the contrary, implicatures, subtexts and, on occasion, even rhetorical foul play are manifestly present in most academic texts. I do not (necessarily) condone this state of affairs, but I do consider it a fact and I recognise its importance in actively shaping the contours of the academic landscape.

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Everything You Always Wanted to Know About Restorative Justice

Besides conceiving and evaluating theoretical positions as ideal rational constructs, I therefore consider it an equally legitimate and pertinent philosophical task to confront and expose the way positions are propounded.5 This means studying philosophical writings with a view also to identify the tacitly presupposed but nevertheless present and highly efficient features of them. In the study of restorative justice, this is a methodological precept that I have found very useful. And this brings me to a, perhaps, more polemical aspect of the title. For what I have found most striking in debates on restorative justice is the significance implicitly assigned to the assumed moral stature of discussants, and, in particular, an associated widespread self-image in the advocacy for restorative justice as being “the good guys”. One indication of this tendency is the moral indignation that is present in so much writing on restorative justice. But a more telling sign, perhaps, is found in the way theorists who do not accept the mainstream restorative tenets, behave when they engage in debates with proponents of restorative justice – and in the way proponents respond to such approaches. Three examples from the literature illustrate this tendency. First, Antony Duff, in his writings on the existence of restorative aspects in his own retributive theory of punishment, repeatedly feels called to emphasise that his defence of punishment does not imply a defence of existing penal practices. For instance, he writes: Given the manifest deficiencies in our existing practices, a theory that seemed to justify them would indeed, by that very fact, cast doubt on its normative credentials […]. If the ideal is far distant from the actual (and mine will be far distant), if we can see no rapid route from where we are now to where we ought to be (and my account admittedly offers no such route), we face a serious problem […] (Duff 2005, p. 121)6

Perhaps this attitude is inspired by Machiavelli: “[M]any have pictured republics and principalities which in fact have never been known or seen, because how one lives is so far distant from how one ought to live, that he who neglects what is done for what ought to be done, sooner effects his ruin than his preservation; for a man who wishes to act entirely up to his professions of virtue soon meets with what destroys him among so much that is evil.” (Machiavelli 1908, p. Ch. XV) 6 Cf. also Duff (2002, p. 98). 5

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Introductory Remarks

From this passage, restorativists will surely get the message that the invitation to compromise with retributivism does not imply a marriage with the much-scorned existing penal practices. Second, proponent of restorative justice Declan Roche finds it necessary, as part of an argument that the distance between restorative and retributive justice has been exaggerated, to assure restorativists of the general good will and moral stature of retributivists: People may disagree with retributive theories of justice but it is inaccurate to reduce them to mere revenge and the law of the jungle. […] It is often forgotten that retributive justice – in the guise of the ‘just deserts’ model – was promoted by liberal reformers in the 1970s as a response to increasing levels of punishment. (Roche 2007, p. 78)

And third, in the introduction to a critical article on the concept of forgiveness in restorative justice, Albert W. Dzur and Alan Wertheimer strike the following apologetic pose: Restorative justice is a multifaceted critique of mainstream criminal justice theory and practice, a critique with which we are partly sympathetic. […] Nonetheless, we are inclined to be quite sceptical as to whether the criminal justice system should seek to place forgiveness and restoration ahead of other objectives. Even if we are wrong, and we might well be wrong, it is important to raise these concerns. As John Stuart Mill famously argued, we do not know whether we should have confidence in our views unless we have tested them against important counterarguments. And so we hope that those who think our concerns misplaced can find it in their hearts to forgive us for raising them. (Dzur & Wertheimer 2002, p. 4)

In general, such assurances of underlying good will and reminders of the value and even legitimacy of being critical are, to say the least, unusual in academic writings. But in the case of restorative justice it seems nevertheless to be found necessary. In my view, this testifies to the presence of a kind of subtle moral intimidation in the advocacy for restorative justice. Potential critics must stand ready to be shunned, not only for failure to meet academic standards of rationality but also for moral failure.

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Everything You Always Wanted to Know About Restorative Justice

One very unfortunate consequence of this intimidation, I venture, is the tendency to preclude lines of criticism of restorative justice that do not proceed from sufficiently congenial premises. Certain central tenets are therefore often left unquestioned. Or, to the degree they are questioned, it seems almost obligatory to proceed with the kind of humility exemplified by Dzur and Wertheimer – at least if one does not have the moral standing of an insider. And this, arguably, dims the critical thrust considerably. Speaking of strict taboos on restorative justice in a manner analogue to those shrouding Doctor Reuben’s subject in the late 1960s would probably be too dramatic. But it does seem, as a result of this intimidation, that there is a number of pressing questions regarding restorative justice that have long remained unanswered in the debates; questions that it seems criminal justice theorists have almost literally been afraid to ask. And it is, if not all, then at least some of these questions that I have tried to answer here. Mapping the field

Even though there are some questions regarding restorative justice that have thus remained unposed, the point can surely be overdone. No doubt, the rich literature on the subject already contains a lot of critical and highly valuable investigations of various aspects of restorative justice. In this section, I will give a short recapitulation of the field that is constituted by debates on restorative justice in order to better situate the work presented in this thesis. In so doing, I shall focus primarily on those discussions that I consider to be of philosophical relevance.7 Retributive approaches: One of the key issues in debates on restorative justice is the movement’s relationship with retributivism. From early on, proponents of restorative justice have made a habit of emphasising a sharp contrast between restorative and retributive notions of justice. Indeed, at times it seems proponents have preferred to simply define restorative justice ex negativo as being anything but retributive justice.8

7 The reader should note that what I am mapping here are topic-related discussions of restorative justice. Hence, the same theorist can (and some in fact do) occur in several of the discussions mentioned. 8 Cf. Braithwaite (1999b, p. 4): “Restorative justice is most commonly defined by what it is an alternative to.”

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Introductory Remarks

This has been a crucial part of the highly influential claim originally propounded by Zehr (2005 [orig. 1990]) that restorative justice is not simply a new method but a whole new way of conceiving crime; that it constitutes a new paradigm in the strong Kuhnian sense of that word. During recent years, however, this stark oppositional image of restorative and retributive justice has met with resistance in the literature. Several theorists have tried to even out the contrast, and the implication of these attempts, ultimately, has been a direct challenge to the paradigm claim. These suggestions have roughly come from two directions: From “within” the movement in the shape of restorative justice proponents who have felt a growing dissatisfaction with the uncompromising rhetoric of the restorative campaign (cf. notably Daly, e.g. 1999; 2002, 2006; but also Roche 2007) and from the “outside” in the shape of retributivists examining the possibilities of hybrid positions in the border region between the two conceptions of justice (cf. notably Duff, e.g. 2002; 2003; but also Zedner 1994). For the most part, however, such invitations have been kindly but firmly declined by proponents of restorative justice. In the words of Braithwaite, “the marriage of retribution and restorative justice is not a wedding we should want to attend.” (2003b, p. 18) Thus, rejecting the advances of retributivism has been fairly easy for restorativists in the purist tradition who categorically reject any use of coercion, and insist that punishment constitutes the exact opposite of restoration. Indeed, the purist definition of restorative justice is explicitly motivated by its ability to provide a more efficient bulwark against retributivism (McCold 2000, 2004). Proponents in the maximalist tradition, on the other hand, have found somewhat greater difficulty in categorically turning down the offer because of their acceptance of the inclusion of coercion in restorative justice. This has put the paradigm claim under greater pressure, but also in these parts of the restorative justice advocacy have proponents for the most part retained faith. In the words of Walgrave: Restorative justice is based on a different paradigm, inspired by a clearly distinct philosophy … It is not possible to judge different paradigms with the same criteria, just as it is not possible to play American football with the rules of soccer. (Walgrave 2008, p. 155)

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Everything You Always Wanted to Know About Restorative Justice

From the “other side of the fence”, some retributivists have made almost symmetrical moves in that they have rejected the feasibility of hybrid versions and chosen instead to stick to pure retributivist positions regardless of the presence of a new player in the criminal justice field (Ashworth 1993; A. von Hirsch, Ashworth, & Shearing 2003; for criticism of pure restorative justice, cf. also von Hirsch & Ashworth 1992). Restorative justice failing the revolution: A wholly different line of criticism of restorative justice has been launched from an angle that is much closer to the purist tradition. Here, the objection is that restorative justice fails to deliver on its revolutionary promise and make a sufficiently clear break with the existing criminal justice system. These criticisms tend to take the shape of rather radical rationality critiques in the post modern and post structuralist traditions. For instance, Pavlich (2005) has accused restorative justice of falling pray to the so-called imitator paradox, in that restorative justice, allegedly uncritically, inherits the traditional criminal justice categories of “crime”, “victim”, “offender”, “etc”. A related but somewhat more subdued line of criticism warns of the danger of restorative justice inadvertently participating in a second and perhaps even more effective round of “stealing conflicts from the people” (cf. Christie 1977). This possibility occurs when the ideal of informal justice gets co-opted by the criminal justice system into an informal-formal justice complex through increased professionalisation, institutionalisation, etc.: Police officers, lawyers and judges have become necessary players in most restorative programmes, acting as gatekeepers, administrators and facilitators of their operations. With them, they bring the dominant rationalities of criminal justice. (Woolford & Ratner 2008, pp. 118-119)

Restorative justice idealising the past: Yet another important aspect of the existing literature on restorative justice regards the role frequently assigned in the advocacy for restorative justice to certain sociohistorical observations. It is quite common in the writings of proponents to find passages stressing the originality of restorative justice. For instance, Braithwaite writes: “Restorative justice has been the dominant model of criminal justice throughout most of human history for all the world’s peoples.” (Braithwaite 1999b, p. 2) Though it is rarely stated 12

Introductory Remarks

explicitly, such observations tend to play the role of a kind of genealogical argument that attempts to justify restorative justice by transferring authenticity and naturalness to it. As Gerry Johnstone writes with reference to restorative writings specifically on Navajo peacemaking: There is an implication that Navajo peacemaking represents a natural, authentic form of justice, a form abandoned by modern western societies in favour of a more ‘artificial’ system of state punitive justice. (Johnstone 2002, p. 45)

These arguments have, however, met with counterarguments from critics who accuse restorative justice proponents of romantic idealisations of the past. For instance, Daly writes: Efforts to write histories of restorative justice, where a pre-modern past is romantically (and selectively) invoked to justify a current justice practice, are not only in error, but also unwittingly reinscribe an ethnocentrism their authors wish to avoid. (Daly 2003, p. 368)9

In line with this criticism, some theorists have tried to confront restorative justice by presenting less idealised and better empirically supported images of criminal justice in original cultures (cf. Bottoms 2003). Questioning restorative ethics: One last area in this short survey of aspects of restorative justice that deserve and have so far received philosophical attention in the literature, relates more closely to the central claims of the restorative justice advocacy, i.e. claims of the allimportance of achieving forgiveness, apology and mutual healing of victim and offender in the aftermath of crime. In recent years, a number of criminal justice theorists have questioned the moral vision underlying these claims. For instance, such critics have accused restorative justice of implicitly (and at times even explicitly) scorning victims’ legitimate

9 Cf. also Bottoms (2003, p. 93): “[T]here is […] no easy line of normative argument that can be drawn from reconciliatory/restitutive processes in pre-modern societies to the advocacy of RJ [restorative justice] (or equivalent procedures) in contemporary societies.”

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Everything You Always Wanted to Know About Restorative Justice

feelings of resentment and anger (cf. Brudholm 2008) and, in so doing, of missing what is often the true tragedy of crime: “Nothing can make things better.” (Acorn 2004, p. 55) In support of these lines of criticism, it has often been stressed that by indulging in rosy stories of almost miraculous turning points and mutual respect and healing, proponents of restorative justice vastly overstate its potential. As Daly soberingly notes on the basis of her longtime research on restorative conferences: “How often, then, does the exceptional or ‘nirvana’ story of repair and goodwill occur? […] I suspect that [it] will be infrequent; it may happen 10 percent of the time, if that.” (Daly 2002, p. 70) Placing this work on the map

To be sure, several other lines of discussion and criticism are continuously being pursued in the ongoing and evolving debates on restorative justice. The above suffices, however, to give an impression of the more philosophically significant strands of the discussion. And it suffices, in particular, to situate the present work in a larger context. It does so, primarily, ex negativo in that this work does not adopt, or does so only to a fairly limited degree, any of the above critical approaches. I should perhaps stress that I am fundamentally sympathetic to and find myself roughly in agreement with the general lines of criticism presented in the latter two of the areas mentioned. But, returning to the title, it is for obvious reasons not so much in these areas that I have found questions that theorists have been “afraid to ask”. Rather, the common denominator for the work found in this thesis has been to focus primarily on those assumptions i) that have so far attracted little attention in debates on restorative justice; ii) that appear to be taken for granted in the advocacy for restorative justice; and iii) that nevertheless play a prominent role as implicit or explicit premises in that advocacy. This has led me to focus, first and foremost, on the relationship between restorative justice and roughly traditional consequentialist theories of criminal justice. As mentioned above, much energy has been invested in studying the relationship between restorative justice and retributivism. Its relationship to the other great traditional player in the field of criminal justice, on the other hand, is one that I have found

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Introductory Remarks

largely unexplored and undebated. I believe this is very unfortunate for a number of reasons and I explore some of them in the chapters 4-7. One important problem regarding the relationship with consequentialism relates directly to the paradigm claim which stands at the heart of the advocacy for restorative justice. While this particular claim has been thoroughly investigated with regard to the relationship between restorative justice and retributivism, it has been left largely untested with regard to traditional consequentialist theories of criminal justice. As a result, this crucial part of the self-proclaimed status of restorative justice as a kind of Third Way in criminal justice seems simply to be taken for granted. But this is unfortunate because it fails to grasp what is really at stake in the paradigm claim. As Walgrave noted above, what is really at stake is the criteria according to which we should ultimately evaluate restorative justice. Do we have on our hands a genuine philosophical novelty or are we in fact only witnessing a variation of the age-old struggle between retributive and consequentialist theories of criminal justice. This is the question that I undertake to answer in chapter 7: “Philosophical Misconstruals in the Advocacy for Restorative Justice”. But I have also found the relationship between restorative justice and traditional consequentialism unclear on another important issue. Traditionally, consequentialists justify punishment by its ability to prevent crime through (individual and general) deterrence, incapacitation and rehabilitation.10 In the advocacy for restorative justice, on the other hand, such claims of the general means-ends efficiency of punishment is firmly denied, and belief in them is scorned as unscientific and portrayed, roughly, as a matter of irrational habit. As a result, traditional criminal justice is touted as an utter failure. This deep scepticism with regard to the crime preventive effects of punishment constitutes an important premise in the argument for restorative justice. The stronger a sense of failure that can be ascribed to the existing criminal justice system, the stronger the perceived need to reorient radically. Even still, this premise is rarely carefully argued in the advocacy for restorative justice but is simply presented more or less as a commonplace. This all-out restorative scepticism with regard to the

To this should be added also the “displacement function of law”, i.e. the ability of punishment to “remove some of the temptation to retaliate” (Gardner 1998, p. 31).

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Everything You Always Wanted to Know About Restorative Justice

crime preventive effect of punishment, therefore, constitutes another key tenet that I have found insufficiently tested in the literature. I address this question in chapters 4: Caring about ‘How the World Happens to Be’ – Reply to Davis”) and 5: “A ‘Slice of Cheese’ – A Deterrencebased Argument for the International Criminal Court” – though my focus in these chapters is restricted to crime prevention through deterrence. Ironically, due to the perceived commonplace character of the claim that punishment cannot be justified on grounds of deterrence, I have had to move outside the restorative justice campaign to find criminal justice theorists who actually take the time to argue at some length for this view. Thus, the primary discussant on the issue of general deterrence in chapters 4 and 5 is the retributivist philosopher Michael Davis. Seeing that some of the chapters of this thesis strictly are not even about restorative justice, some readers will perhaps find their worries regarding the title sadly confirmed. But I believe that the conclusions established nevertheless have direct implications for the campaign for restorative justice. They do so to the extent that that campaign manifestly relies on claims about the failure of punishment to actually prevent crime. Chapter 5 moves beyond the discussion in chapter 4, however, in that it addresses the issue of deterrence primarily in the context of international crimes dealt with in the newly established International Criminal Court, i.e. genocide, crimes against humanity and war crimes. Discussing restorative justice in this particular context takes us away, perhaps, from the core of the campaign, with its main focus on “ordinary” domestic crime. However, a considerable part of the movement has transferred the basic restorative rationales and values to the international context of mass violence. Here, the restorative justice advocacy takes the shape of a campaign for the use of truth and reconciliation commissions along the lines of the Desmond Tutu-led post apartheid commission in South Africa. Like in the national context, part of the campaign for restorative justice in response to mass atrocities relies on the claim that punishment cannot be justified preventively on grounds of deterrence. But in the international context it seems that there is a greater willingness to address directly the issue of deterrence. Thus, in discussions of the socalled domestic analogy critics of the ICC explicitly present reasons why the idea of a deterrent effect of punishment should be even worse off in the international context than in the national. Besides restating some of 16

Introductory Remarks

the main arguments and conclusions on general deterrence from chapter 4, I therefore address, in chapter 5, some of the arguments that have been launched in order thus to break down the domestic analogy. The international angle has also taken me on the perhaps longest incursion from the traditional philosophical issues pertaining to restorative justice. In chapter 6: “The End of ‘The End of Impunity’?”, I consider the practical implications of the philosophical clash between the rationales underlying the ICC (on a consequentialist conception) and those underlying truth and reconciliation commissions. The pertinent question that emerges in this regard is how the ICC-prosecutor should respond in a future scenario where the punitive imperative guiding the ICC clashes with conditional amnesties granted on restorative grounds in national truth and reconciliation commissions. In contrast to chapters 4-7, the first two chapters of this thesis deal with aspects of the restorative justice advocacy that have nothing to do with consequentialism. But the common denominator remains, also in these chapters, the investigation of core restorative justice premises that is taken for granted by proponents and have remained largely unquestioned in the literature. One such premise regards the modus operandi of the law in the traditional criminal justice system. One of the reasons, we are told, for abandoning the criminal justice of the courtroom for the informal restorative processes of stakeholders, has to do with the character of the law as such. Ruling in accordance with the principle of legality, we are told, binds judges to a perception of the criminal cases that is too abstract and formalistic. Restorative justice processes, by contrast, are hailed for their context sensitivity and their ability to take properly into account the emotional needs of the stakeholders. Considering the importance of these claims in the campaign for restorative justice, it is striking how little attention they have attracted. In particular, it is striking how little attention has been paid to a critical investigation of the soundness of the dismissive critique of the law vis-àvis a 2,500 year long tradition in the philosophy of law of addressing that problem head-on. In chapter 3: “The Hobgoblin of Little Minds – Restorative Justice and the Law”, I try to make up for this deficiency. One final question that I have found insufficiently treated in philosophical discussions of restorative justice, regards the exact outlines of a comprehensive restorative criminal justice system. Advocates of restorative justice have generally provided clear images of 17

Everything You Always Wanted to Know About Restorative Justice

various versions of restorative justice processes like victim-offender mediation, conferencing, family group circles, etc. And proponents in the maximalist tradition have also explicitly admitted to the need to supplement, in some measure, these processes with roughly traditional criminal justice processes of court trial and punishment.11 What I have found insufficiently accounted for, however, is the kind of metaprocedural guidelines according to which proponents imagine that individual criminal justice cases should be dealt with in one or the other of these fora. The importance of settling this question is repeatedly downplayed in the literature, often with references to the need not to strangle in rigid rule formalism the flexibility and sensitivity of restorative justice. But this is problematic. Of course, in a philosophical discussion advocates of restorative justice should be allowed not to describe the criminal justice system in every minute little detail. But if we are supposed to abandon traditional criminal justice in favour of a wholly new restorative system, we should at least have a rough idea of how such a system would look. Restorativists should therefore be capable of providing clear principled meta-procedural guidelines for the type of process they recommend for fairly typical kinds of criminal cases. In chapter 2: “Outlining the shadow of the axe – On Restorative Justice and the Use of Trial and Punishment”, I press for such guidelines, and I do so concretely by systematically reconstructing and critically evaluating those suggested by John Braithwaite in his comprehensive theory of restorative justice and responsive regulation. Some considerations on method

This thesis does not constitute an empirical study on how this or that criminal justice process works on this or that type of crime. Nor is it a legal study on the arrangement of this or that particular criminal justice system or a comparison between several such systems. It is a philosophical study of the fundamental theoretical presumptions underlying the restorative justice movement and it is carried out in order to better understand and critically assess the claims of that movement.

Even though some proponents, notably Walgrave, prefer to speak of restorative sanction instead of punishment.

11

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Introductory Remarks

I must confess, however, that I have found it difficult to get a hold on restorative justice as an object for such critical philosophical appraisal. As earlier mentioned, restorative justice is a very broad phenomenon covering a wide variety of theoretical traditions and practices, and it is highly doubtful if any one feature can be singled out that they all share in common. Occasionally, however, I have had the impression that proponents consciously utilises this definitional vagueness as part of a convenient rhetorical strategy to dodge criticism by claiming that it fails to address “the real” restorative justice whatever that might be. As a result, theoretical discussions of restorative justice have a sad tendency to turn into rather unfruitful games of hide-and-seek. I have tried to counter this tendency by being fairly specific in choosing subjects of study. Besides focusing, as earlier mentioned, on the maximalist tradition, I have looked primarily on the writings of particular theorists rather than on restorative justice as such. However, as an academic theory restorative justice is anything but armchair philosophy. True to the movement’s origins in the 1970’s among practitioners in the penal system, proponents have maintained a strong commitment to empirical studies of actual effects of various criminal justice processes. As a result, most of the academic work in the field comes out of the social sciences generally and criminology in particular. Looking for restorativists that engage head-on in philosophical issues therefore quickly decimates the field. In this remaining group, I have found the work of John Braithwaite to be of particular interest. His defence of restorative justice is generally characterised by clear exposition, a high degree of philosophical sophistication and a willingness to take foundational issues seriously. For this reason, Braithwaite constitutes the main discussion partner in chapters 2, 3 and 7 (together with Philip Pettit). Other main discussants in the articles count Lode Walgrave, Howard Zehr, Nils Christie and Michael Davis among others. Another methodological issue that deserves mention has to do with terminology. In the following pages, I have found myself frequently discussing, interpreting and at times also defending rather general positions and institutions like the traditional criminal justice system, standard consequentialist penal philosophy, preventionism, traditional deterrence theory and the like. Generally, using such broad and vague categories in academic discourse is potentially problematic. I have nevertheless found it 19

Everything You Always Wanted to Know About Restorative Justice

necessary to do so for two reasons. First, in much of the advocacy for restorative justice these are in fact the kinds of positions and institutions (together with “retributivism”) that proponents most often appoint as the theoretical opponents of restorative justice. I have therefore tried to accept these conditions for the discussion of restorative justice and not render my critical claims dependant on an initial acceptance of the philosophy of this or that individual punishment philosopher. Secondly, it is a well-known fact that consequentialism has fallen on hard times in criminal justice theory during the last half-century. To the degree discussions of restorative justice have touched upon the ability of consequentialism to counter the criticism launched in the advocacy, I have therefore for the most part found it necessary to tread my own path, i.e. provide my own rational reconstruction of what would constitute a reasonable consequentialist justification of the traditional criminal justice system. This brings me to one final important methodological consideration. It should be noted that what is generally referred to in the following pages as the traditional criminal justice system, is not this or that actually existing criminal justice system. What is at stake is not the particular criminal justice system in Denmark, Germany or the United States with all their manifest deficiencies, inconsistencies and, at times, inhumane treatment of both victims and offenders. I am writing in the abstract, about criminal justice systems that are traditional in the sense that they dispose punishment after a finding of criminal guilt in a court trial in accordance with the procedural safeguards associated with the rule of law. This is a point that I have perhaps not expressed with sufficient clarity throughout the articles but it is nevertheless important to keep in mind. Not only because I too succumb to the fear of having “doubt cast on the normative credentials of my theory”, but also because keeping the distinction clear saves us from comparing oranges and apples in criminal justice theory. There is an outspoken tendency in the advocacy for restorative justice to compare states of affairs in ideal restorative utopia with those in criminal justice systems actually in existence. As Dolinko writes with specific regard to Braithwaite’s criticism of retributivism: The power disparities that Braithwaite treats as immutable and overwhelming when they sabotage the “just deserts” program somehow

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Introductory Remarks

fade from sight when they might hamper restorative justice. (Dolinko 2003, p. 337)

Keeping in mind the above interpretation of traditional will hopefully help levelling the theoretical playing field of restorative justice and its opponents. Some (tentative) conclusions and their implications for the future of restorative justice

Besides the above rough outline of the architecture of this thesis, I will not recapitulate here the conclusions of each of the articles. The following chapters are all equipped with abstracts that should make it fairly easy for the reader to get a more detailed impression. Here, I present, instead, a more synthesising overview of the main conclusions that can be distilled from the following pages. Of course, it is impossible to do full justice to the many discussions in a few paragraphs. Furthermore, staying true to my earlier remarks on the article format of this thesis, I should underline that this synthesising overview is indeed tentative. Presenting much firmer conclusions would require an unravelling of the arguments from their contexts in the individual articles and binding them closer together into an overarching structure. Even still, one general perception of restorative justice undoubtedly shines through in the pages to come. And that perception is mainly sceptical. Not necessarily with regard to the fundamental idea of restorative justice processes. Who can honestly, as a matter of general principle, be against the idea of having the parties to a crime meet if that is their honest wish? Notwithstanding the need for bullfrog stories in the advocacy for restorative justice, it would be plainly untrustworthy to deny that restorative justice can and often do have conspicuously positive effects on both victims and offenders. Besides, dismissing restorative processes as such would be meaningless. That would equal dismissing monetary fines, anger management courses or even incarceration as such, i.e. regardless of the use to which it is put and the wider context in which it figures. Rather, the perception of restorative justice brought to light here is sceptical with regard to the way restorative justice is presently propounded as a comprehensive theory of criminal justice, i.e. as a coherent theory providing overall guidelines for the dealing with criminal cases in accordance with one or more overarching goals and/or 21

Everything You Always Wanted to Know About Restorative Justice

principles. Studying the advocacy for restorative justice in this regard, I have found the answers currently on offer to be unsatisfying on the following three accounts: •





Unsound criticism of opponents: The advocacy’s dismissal of philosophical opponents of restorative justice tend to be premature and to rely, for the most part, on rather distorted and uncharitable interpretations of the rationales that can most plausibly be ascribed to these opponents. These shortcomings are particularly vivid with regard to i) the reluctance to engage seriously with that longstanding tradition in the philosophy of law that deals with problems regarding the principle of legality; ii) the uncharitable interpretation of preventionism understood as “the dominant variety of consequentialist criminology” (Braithwaite & Pettit 1990, p. 46); and iii) the premature dismissal of the possibility of establishing deterrent effects through punishment. Confusion on philosophical foundations: As a result of these distortions and of what appear to be rhetorical overstatements of the uniqueness of restorative justice, considerable confusion abound in the advocacy regarding the proper character of the philosophical foundations of the movement. Adding to this confusion is an outspoken tendency to use the touted failure of traditional criminal justice as a reason for going restorative, while relying heavily, in more quiet moments, on that very kind of criminal justice when restorative processes come up short. Paradigm claim cannot be sustained: If rationally reconstructed so as to avoid absurdities and inconsistencies lurking in the wake of the philosophical confusion, it becomes clear that restorative justice does not constitute a new paradigm in criminal justice theory. Thus understood, restorative justice needs clear and unequivocal approval of traditional rule of law and it must adopt fairly traditional comprehensive consequentialist goals for the criminal justice system. Hence, contrary to widespread assumption in the advocacy, restorative justice should in fact be judged “with the same criteria” (cf. Walgrave 2008, p. 155) as traditional criminal justice.

As mentioned, these general conclusions are tentative in character. I believe, nevertheless, that they should have some implications for the future development of both restorative justice theory and practice. The main implication is that the advocacy for restorative justice ought to moderate its claims considerably regarding the reach of the 22

Introductory Remarks

project. Regardless of its potential, restorative justice is not the “Egg of Columbus” of criminal justice theory it is so often made out to be. It would therefore be most appropriate to skip all talk of paradigm change and revolution of the rule of law model for criminal justice. Instead, we should recognise that the basic principles of that model are probably about 80 or 90 percent right.12 However, this does not necessarily imply that restorative justice should have no role to play in the criminal justice system. On the contrary, restorativists (and other critics) are probably right that traditional criminal justice may at times fail to adequately meet the needs of both victims and offenders. In particular, depriving entirely the victim of a role in the criminal justice process or reducing her to a witness is indeed problematic. At the same time, the formal and antagonistic setting of a courtroom trial may indeed make it more difficult for the offender to fully grasp the implications of the harm she has inflicted. Access to restorative justice processes does seem to be an apt means to address at least parts of these and other shortcomings of traditional trial and punishment.13 Furthermore, the criminal justice system does seem to be in need of an “intermediate” sanction that more aptly addresses the particularities of certain types of offenders, notably juveniles but perhaps also, for some offences, first-time offenders. For these reasons, I believe that it would be possible to imagine a criminal justice system where the presumptive response to crime would be traditional trial and punishment, but where restorative processes would be an option for the group of crimes committed by juveniles (and 12 And I am reminding the reader that we should speak thus of principles in order not to keep comparing oranges and apples. There is no serious reason to think that if carried out full scale in the real world restorative justice would not quickly succumb to the same lack of means and overabundance of populist politicians that exert such a constant corrupting influence on existing criminal justice systems (cf. also Dolinko above). 13 It should be noted, though, that remedying these deficiencies do not necessarily imply a leap to restorative justice. As Sandra Marshall has rightly noted: “The changes necessary to remedy the failures to include the victims more fully in the process of trial and sentencing might require no more than that they be kept informed about how the case is going and the harm they have suffered more carefully addressed when it comes to deciding sentences. It could also mean that they are compensated for the harms they have suffered to a greater extent than they currently are. Similarly, there are many quite obvious ways in which treatment of offenders could be reformed within the criminal justice system.” (S. Marshall 2005, p. 69)

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Everything You Always Wanted to Know About Restorative Justice

perhaps also first-time offenders). For this limited group, then, restorative justice would in fact work as an alternative to punishment, for instance along the lines suggested by John Braithwaite (pace my reconstruction thereof, cf. chapter 2). For the rest of the offences, however, restorative justice would only be available as a voluntary supplement so as not to undermine the comprehensive societal goals pursued by the criminal justice system. Such a system would in fact correspond well with the way restorative justice is currently being implemented in many countries around the world. For the most part, restorative justice processes are offered, either as a voluntary supplement to trial and punishment, or as an alternative in cases involving juvenile offenders or in minor offences. Advocates of restorative justice tend to see this only as a first modest move on the way to full realisation of restorative utopia. Based on the work presented in this thesis, I would encourage instead that we finish the implementation of the more modest programs already initiated, and focus more fully our efforts on reforming, improving and humanising the institutions of the existing criminal justice system. Realising that crime, trial and punishment are probably here to stay, this strikes me as a wiser strategy than getting lost in more restorative daydreaming. * Acknowledgements

The writing of this thesis has been financed in part by the Danish Council for Independent Research: Humanities and in part by the Department of Culture and Identity at Roskilde University. Each of the following chapters contains acknowledgments of people who have contributed to the particular articles. Here, I would like to extend my thanks to the members of the Research Group for Criminal Justice Ethics at Roskilde University for valuable discussion and critical comments throughout. Frej Klem Thomsen deserves special mention for last minute reading and extensive commenting resulting in substantial improvements of the thesis. Thanks to Gry Ardal Christensen and Thomas Brudholm for keeping me on track in important ways. Thanks also to professor John Braithwaite for taking the time to read and respond extensively to some of the work presented here. In so doing,

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Introductory Remarks

even to someone unknown who had produced a rather extensive critique of his work, he sets an example of academic practice that I will do my best to follow. I would like to extend my warm thanks to all my good friends and colleagues at the Section for Philosophy and Science Studies at Roskilde University for making life as a PhD-student not only bearable but even pleasant and rewarding in a number of ways only some of which are professional. Thanks to Vibeke Sanders Nielsen, Karen Kleis, Stig Andur Pedersen, Thomas Søbirk Petersen, Morten E.J. Nielsen, Kasper Risbjerg Eskildsen, Adam Diderichsen, Ursula Renz, Søren Riis, Klaus Frovin Jørgensen and Aksel Haaning. Thanks, in particular, to Vincent F. Hendricks for caring, I think, in his own brusque manner offering constant advice and opportunity (and for joining me on a minor detour in the political arena), and to my fellow travellers, past and present, on the long and arduous PhD-path: Marlene Dyrløv Madsen, Claus Festersen, Pelle Guldborg Hansen, Inge Schiermacher, Martin Bentzen, Kira Vrist Rønn and Frej Klem Thomsen. I am deeply indebted to my supervisor, professor Jesper Ryberg for the confidence he has shown me and for his generosity throughout. Not only did he lead me on to the study of the philosophical foundations of restorative justice in the first place. He has also selflessly offered several fruitful ideas along the way. I may not always have dealt with these ideas quite the way Jesper might have imagined. But he has been a good sport throughout and engaged constructively and critically with my way of pursuing matters philosophically. Thanks also to Martin Vinding, Eva Bertelsen, Mikkel Munch-Fals, Klavs Sørensen and Jesper Bülow for friendship and encouragement. Above all, thanks to Ellen and Lone, my loves.

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Chapter 2 Outlining the Shadow of the Axe On Restorative Justice and the Use of Trial and Punishment1

Once it is conceded that restorative justice cannot deal with absolutely all criminal cases, the relationship between the formal system and any restorative justice processes must be crafted so as to avoid inequities. – A. Ashworth There is tremendous reluctance in the rhetoric of restorative justice to boil it all down to precise concrete remedies. – A. Acorn

Abstract

Most proponents of restorative justice admit to the need to find a well defined place for the use of traditional trial and punishment alongside restorative justice processes. Concrete answers have, however, been wanting more often than not. John Braithwaite is arguably the one who has come the closest, and here I systematically reconstruct and critically discuss the rules or principles suggested by him for referring cases back and forth between restorative justice and traditional trial and punishment. I show that we should be sceptical about at least some of the answers provided by Braithwaite, and, thus, that the necessary use of traditional punishment continues to pose a serious challenge to restorative justice, even at its current theoretical best. Keywords: Braithwaite, John; court trial; responsive regulation; restorative justice; state punishment

This chapter has been published as “Outlining the Shadow of the Axe - On Restorative Justice and the Use of Trial and Punishment”, Criminal Law and Philosophy, 3(2 / June), 2009, pp. 187-207. 1

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Everything You Always Wanted to Know About Restorative Justice

Introduction

Once it was an uncontested commonplace that criminal justice takes place between an offender and the state and that it consists in determining guilt and meting out punishment. Over the last two to three decades, however, this notion has been forced on the defensive by the old novelty (or is it novel oldie?) of restorative justice, that is, by the idea of a criminal justice process whereby, as one popular definition has it “the parties with a stake in a specific offence resolve collectively how to deal with the aftermath of the offence and its implications for the future.” (Marshall 2003, p. 28). This development has been so rapid, however, that by now restorative justice threatens to be caught up in its own success. In the early days proponents were allowed to simply tell (remarkable) stories of success, fine tune processes through research and development, and launch harsh criticism against traditional criminal justice coupled with loose sketches of a restorative utopia. But as restorative justice has managed to gain serious attention from policy makers and a wider academic audience it has gradually been forced into assuming the more constructive and committing role of supplying fully fledged alternatives to the existing system. In consequence, recent years have seen several works with the express ambition to present more realistic visions of a unified restorative criminal justice system.2 One area that has drawn particular attention in this connection is the use of traditional trial and punishment in such a system – a question which, in turn, has occasioned a debate on how best to define restorative justice. Some advocates prefer to maintain a narrow definition in terms of voluntary deliberative stakeholder processes roughly along the lines of Marshall quoted above.3 They tend to take the abolitionist view that all use of traditional punitive processes is morally unjustifiable. Others presume, in my view wisely, that we cannot avoid entirely the use of some sort of coercive measures. Even if given absolute powers to reconstruct the criminal justice system according to restorative wishes,

See e.g. (Braithwaite 2002a, 2002c), (Dignan 2002, 2003), (Van Ness 2002), (Walgrave 2002). One concrete manifestation of these efforts was the development and adoption by United Nations of a set of “Basic principles on the use of restorative justice programmes in criminal matters” (United Nations 2002). 3 Cf. (Boyes-Watson 2000) and (McCold 2000). 2

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Outlining the Shadow of the Axe

there will inevitably be some cases that are unfit for voluntary deliberative processes; cases involving, for instance, openly uncooperative, hardened and dangerous offenders. If restorative justice is to qualify as a comprehensive theory of criminal justice it must encompass theoretically the possibility of such cases too. This has led other advocates to abandon a narrow definition in terms of process for a wider definition in terms of outcomes.4 On these terms, restorative justice becomes a theory of justice that emphasises repairing the harm caused by crime and that couples this general aim with a heavy presumption in favour of reaching it through informal deliberative stakeholder processes (i.e. victim-offender mediation, conferencing, circles); a presumption that can be abandoned, however, for more traditional measures of trial and punishment in exceptional circumstances.5 Thus understood, restorative justice differs from traditional theories of criminal justice in that they tend to favour heavily state trial and punishment, either on the grounds that offenders inherently deserve to suffer punishment for their crimes or because punishment is considered instrumentally useful in order to reach the overall goal of crime prevention.6 As focus here is on evaluating

Cf. e.g. (Dignan 2002) and (Walgrave 2002). If nothing else is clear from the context, I use the word “punishment” to describe state imposed sanctions on offenders following legal proceedings in court. Some restorative justice advocates, notably Walgrave (2002), have expressed reservations about retributivist connotations of this wording. They should feel free to substitute throughout for “restorative sanction” or any alternative to the same effect. Hopefully all agree that the choice of words has no bearing on the need to clarify when criminal cases should be handled through stakeholder deliberation and when they should be handled in court. 6 Admittedly, thus widening the definition increasingly complicates the theoretical landscape. Once the necessary connection between restorative justice and voluntary consensual processes is abandoned it arguably opens the door to new theoretical alliances, e.g. between restorative justice and retributivism. This possibility has been interestingly explored e.g. by (Duff 2003) and (Daly 1999). Though I acknowledge the importance of this development, I will not go further into it here. First, because this move remains highly controversial within the restorative movement, see, e.g. (Braithwaite 2003b). Secondly, because the questions treated in this article remain, even if the use of restorative justice processes in the criminal justice system is justified on retributivistic grounds. In fact, this article can in many ways be seen as providing an answer to some of the questions raised by (Duff 2003, pp. 56-58) in relation to his attempt to reconcile retributivism and restorative justice. 4 5

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Everything You Always Wanted to Know About Restorative Justice

restorative justice as a comprehensive theory of criminal justice, I will rely on this wider definition in the following.7 Once this wide definition is adopted, restorative justice faces some challenging questions: When exactly should cases be handled in one forum and when in the other? How can the referral back and forth of cases be administered without violating commonly recognised procedural safeguards associated with the rule of law? Are the various referrals compatible with the values traditionally associated with restorative justice? Given the obvious all-important nature of these questions to everyone involved in the criminal justice system, the ability of restorative justice to provide satisfactory answers to these questions could reasonably be considered a touchstone for the theory’s status as a serious alternative to traditional criminal justice. All the more striking and even somewhat alarming, therefore, how little in the way of tangible principled answers is generally to be found in writings on restorative justice like the abovementioned. Ever too often it remains unclear, even after a close reading, which procedure they recommend on perfectly common types of criminal cases. Australian criminologist John Braithwaite is, at least to some degree, an exception to this general rule. Braithwaite is widely renowned for delivering one of the most sophisticated and comprehensive defences of restorative justice. And in this particular context he stands out, partly in virtue of being refreshingly unambiguous in that we cannot be abolitionists, restorative justice processes must take place, as he puts it, “in the shadow of the axe” (Braithwaite 2002c, p. 36), partly in virtue of providing the most carefully worked out systematic guidelines for referring cases back and forth between restorative justice processes and more traditional court trials and punishments. Taking Braithwaite’s theory as the focal point for discussion and evaluation of the use of punishment in restorative justice therefore has much to commend itself. Critically assessing his arguments is likely to throw light on the degree to which restorative justice does in fact provide a viable alternative to traditional criminal justice.

Strictly speaking, this makes all available processes in the criminal justice system restorative justice processes. In accordance with traditional usage, however, I shall continue to restrict this term to the informal consensual deliberative processes among stakeholders. 7

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Outlining the Shadow of the Axe

For all Braithwaite’s merits, however, it is not all too easy to pin down in every instance where he thinks specific cases should go. Even though the shadow of the axe is undoubtedly present in his writing, the exact size and shape of it remains blurry throughout. He speaks the loudest in uncontroversial cases like those mentioned above where it is clear that the system, no matter how restorative, will have to put its foot down. But he characteristically lowers his voice when he speaks of cases where the choice of trial and punishment is less intuitively convincing but nevertheless necessary for various reasons. Here remarks are made in passing and scattered around his work, and the choice of punishment is euphemistically paraphrased so that the offender “chooses to go to court” or “tries her chances in court”. There remains, therefore, the pertinent double assignment both of uncovering, reconstructing and systematically representing in sufficient detail the suggested procedural “logistics” of Braithwaite’s restorative system, that is, the rules or principles for referring cases back and forth between restorative justice processes and trial and punishment, and, simultaneously, of critically evaluating this system. And this is the double task that I undertake in this article. As will appear, there are reasons to be sceptical about at least some of the answers provided by Braithwaite, and, thus, to maintain that the necessary use of traditional punishment continues to pose serious challenges to restorative justice, even at its current theoretical best. The article proceeds as follows: As a preliminary concern I consider the general objection that it might be wholly misguided to ask of restorative justice to produce this kind of detailed procedural guidelines. In the following section I reconstruct and critically evaluate one by one the guidelines suggested by Braithwaite for referring various kinds of cases back and forth between restorative justice processes and court trials. In the conclusion I sum up the results of my findings, partly by providing a new improved outline of “the shadow of the axe” in Braithwaite’s theory, partly by formulating three pertinent challenges that continues to face restorative justice in relation to the use of state punishment. A question for restorative justice at all? A preliminary concern

It might be objected that while this kind of investigation might be appropriate were we developing a traditional theory of retributive

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Everything You Always Wanted to Know About Restorative Justice

justice under the rule of law, it is wholly misplaced in the case of restorative justice. Two considerations give rise to this worry. The first relates to the preferred method of studying and developing restorative justice among many proponents. As an academic theory restorative justice is anything but arm chair penal philosophy. True to the movement’s origins in the 1970’s among practitioners in the penal system, proponents have maintained a strong commitment to empirical studies of actual effects of various processes. This empirical orientation is reflected in the widespread conception of restorative justice as a work-in-progress constantly being improved and sophisticated. In this environment of forward looking optimism any attempt to prematurely pin down exact rules of restorative justice (in the singular) for the referral of cases could be considered a hindrance to the continued search for and development of best practice. Secondly, it could be argued that pinning down detailed guidelines would be unduly formalistic and, as such, go against the very spirit of doing restorative justice. To many proponents of restorative justice, the central problem with traditional criminal justice is its insensitivity in principle towards the specifics of a given criminal case. This insensitivity, it is argued, is caused by the fundamental artificiality of the legal system which is accused of lumping together into arbitrary legal categories human behaviour which is essentially diverse and unique.8 Restorative justice processes, in contrast, are praised for their context sensitivity; their ability to pay full attention to the particulars of a given case. This ability is ascribed precisely to the absence of constricting rules predefining the conflict as this or that kind of crime, leaving it to the parties to define collectively what happened and what should be done to restore the values broken.9 Any attempt to spell out in great details rules for referring cases back and forth from restorative justice processes to criminal court, could be accused of jeopardising this alleged advantage of restorative justice over traditional penal justice. Thus, Braithwaite C.f., e.g. (Christie 1981, p. 21) and (Zehr 2005, p. 183). C.f. also (Pavlich 2005) who argues that in spite of rhetoric to the opposite, restorative justice has not managed to break free from traditional legal categories. 9 See, for instance, Braithwaite (2002c, p. 11): “One answer to the ‘What is to be restored?’ question is whatever dimensions of restoration matter to the victims, offenders, and communities affected by the crime. Stakeholder deliberation determines what restoration means in a specific context.”

8

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writes: “Top-down legalism unreconstructed by restorative justice from below is a formula for a justice captured by the professional interests of the legal profession (the tyranny of lawyers).” (Braithwaite 2002c, p. 167) Instead we should aim at developing more general principles or values to guide our handling of cases: “[T]hey [the restorative values suggested by Braithwaite] are vague, but if we are to pursue contextual justice wisely, both considerable openness and revisability of our values would be well advised…” (Braithwaite 2002a, p. 163) Both these considerations point to important elements in the overall picture of restorative justice, and they may generally warn us against making too rigid formalistic demands of a theory of restorative justice. They do not, however, serve to disqualify the attempt to make the theory answer the specific questions posed here. As regards the first point, there is of course always a danger of prematurely scrapping a promising hypothesis by being overly critical at an early stage. In the case of restorative justice this might have been a pertinent concern in the 1970’s and 80’s when the movement was still in its infancy struggling to gain foothold. But today things have changed enormously.10 The child has come of age, and in this new setting restorative justice must learn to survive on the same fallibilistic conditions as any other scientific theory. Here, as elsewhere in Academia, we should be careful not to confuse a sound openness towards empirical investigations with a general moratorium on principled theoretical discussion.11

In the words of T. Marshall: “Restorative Justice, let no one doubt it, is well and truly on the map. I am both amazed and gratified that this idea, after struggling to see the light for over a decade, has finally emerged as a serious issue for all parts of the criminal justice system.” (Marshall quoted from Johnstone 2002, p. 16). 11 A moratorium which Braithwaite comes dangerously close to imposing in several places, see for instance: “It is of course far too early to articulate a jurisprudence of restorative justice. Innovation in restorative practices continues apace. The best programmes today are very different from best practice a decade ago. As usual, practice is ahead of theory. The newer the ideas, the less research and development (R&D) there has been around.” (Braithwaite 2002a, p. 150) and: “At this early stage of debate around restorative jurisprudence we must be wary against being prematurely prescriptive about the precise values we wish to maximise.” (Braithwaite 2002a, p. 163 - values here mainly refer to fundamental procedural safeguards)

10

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Everything You Always Wanted to Know About Restorative Justice

In relation to the second consideration we should keep in mind that top-down legalism is not the only pitfall for restorative justice. Many advocates acknowledge an equal threat from below. In the words of Braithwaite: “Bottom-up community justice unconstrained by judicial oversight is a formula for the tyranny of the majority.” (Braithwaite 2002c, p. 167)12 Because of this threat most advocates realistically profess to the need for some kind of rule of law to check the excesses of restorative justice. What this admission amounts to, however, is not always clear. At the end of the day, such talk of top-down legalism and bottom-up community justice is entirely metaphorical, and proponents are not always too eager to spell out in any great detail the content of this metaphor. Instead they prefer, like Braithwaite, to speak of values and principles rather than clear-cut rules. To the degree this reluctance is premeditated and grounded in rulescepticism I find it misguided. First of all, our concern here is not material criminal law but the spelling out of fundamental procedural safeguards. And advocates of restorative justice usually stress the importance of fully informing parties generally and defendants in particular of their legal rights.13 Thus, the UN-charter on “Basic Principles on the use of restorative justice programmes in criminal matters” article 13(b) writes: “Before agreeing to participate in restorative processes, the parties should be fully informed of their rights, the nature of the process and the possible consequences of their decision.” It is, of course, difficult to make sure that parties have been fully informed of their rights if we are not clear on what these rights are.

Parallel passages are found, for instance, in Dignan (2002, p. 170) and Walgrave (2002, p. 210). 13 Cf. also (Van Ness 2002, p. 147). Admittedly, some advocates downplay the general importance of procedural safeguards in restorative justice arguing that the need for safeguards disappears once we make the transition from criminal justice to restorative justice. However, most advocates of restorative justice find this line of thinking highly problematic. Thus, e.g., Johnstone writes: “[T]he restorative justice process, no matter how benevolent the intentions behind it and no matter how different it is in its objectives from a punitive process, is still a criminal justice process. Hence, arguably those subject to it should be entitled to much the same level of procedural protection as defendants who are prosecuted and tried in the courts.” (2002, pp. 30-31).

12

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In addition, I must confess that (in spite of reading Dworkin) I do not know exactly where to draw the line between rules and principles.14 But this is of minor importance. The questions discussed here arise, I maintain, from the level of details found in Braithwaite’s own writing. Thus the real issue is not whether discussion should take place on one or the other side of a principled divide between rules and principles. The real issue is one of systematically reconstructing, unifying and critically evaluating what is already present in or could reasonably be inferred from the writings of Braithwaite. In consequence, potential objections should aim at the specific interpretation of Braithwaite’s philosophy suggested here, not at the general relevancy of the discussion. Going to court – when and where?

Thus, if, as Braithwaite puts it, “we cannot be abolitionists” (2002c, p. 42) we have to get clear on when and where the supposed default option of a restorative justice process should be replaced by a traditional criminal court trial and subsequent punishment. We must get down to detail. Responsive regulation – targeting known repeat offenders Braithwaite has the most elaborate considerations on this issue in his writings on responsive regulation which are found, primarily, in Braithwaite (2002a, 2002c, pp. 29-43, 2006). Apparently responsive regulation sets up the general framework for his discussion and it is presented as the general mechanism controlling the use of punishment and the interplay between traditional criminal courts and restorative justice processes. According to Braithwaite “what we want is a legal system where citizens learn that responsiveness is the way our legal institutions work.” (2002c, p. 34) As we shall see, however, responsive regulation does not tell us the whole story of the use of punishment in the criminal justice system Braithwaite envisions. More concretely the idea of responsive regulation should be manifested in a new cautioning practice directed against known repeat

Somewhat ironically, I find myself in agreement with Braithwaite on this point. Thus Braithwaite approvingly quotes Robert Gooding: “[R]ules and principles define opposite ends of a continuum: ‘Principle’ is to ‘rule’ as ‘plan’ is to ‘blueprint’, the latter being merely a more detailed form of the former in each case.” (2002d, pp. 5253). 14

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Everything You Always Wanted to Know About Restorative Justice

offenders. Braithwaite imagines that such hardened criminals should be contacted at a point in their “career” when they have no specific outstanding business with the law, all earlier cases having been dealt with in restorative justice processes, and warned that a judge has authorised that they be targeted by the police as a result of their prior criminal behaviour. Being targeted means that the offender is faced with the choice either to accept an offer to enter what Braithwaite somewhat confusingly calls a restorative justice process in an attempt to mend her ways, or, if she refuses, to be kept under increased surveillance by the police. In addition, she is warned that she will be convicted and punished in a traditional criminal court if she opts for the last solution and is caught committing a crime; an outcome the likelihood of which is increased significantly as a result of the surveillance. Finally the surveillance and the threat of traditional trial and punishment are to be upheld until the offender has convinced the restorative justice circle and the judge that she is “going straight and will stay straight” (Braithwaite 2002c, p. 37). In that case she will be taken off the targeting program which means that she is moved down again one step on the escalatory ladder. If caught offending again in the future the process begins all over again and she will be met with the default option of a restorative justice process. If targeted in this manner Braithwaite concedes that traditional punishment is justified because a response to the offender’s continued wrongdoing in the face of an explicit personal warning. Reoffending in these circumstances the offender has proven herself an incompetent or irrational actor against whom society is justified in taking protective measures. Braithwaite depicts this interplay between different regulatory strategies and offender attitudes in the regulatory pyramid (see Figure 1).

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Fig. 1 Regulatory pyramid according to Braithwaite (2002c, p. 32) As noticed, Braithwaite’s choice of words is unfortunate. He describes the alternative presented to the targeted person as a restorative justice process but in my view we have, in effect, moved past this option at this point – at least temporarily. The usual setting for restorative justice discussions (and for penal philosophical discussions generally) is one of considering what should be done in response to a particular crime that has been committed. However, the situation Braithwaite describes here fits this usage poorly. Not only do we not have a victim like in many cases of victimless crime. We do not even have a crime. Accordingly, the people who meet with the repeat offender are not stakeholders in a particular offence. They are relatives to a person who seems to be heading for trouble, and together they are trying to find out how to avoid that. Thus, the kind of process Braithwaite wants the targeted person to enter looks more like a semi-coerced rehabilitative interlude in between restorative and traditional penal processes in response to crime – unless of course we are here using the term restorative justice in its wide sense so as to include any strategy used against offenders in any part of the criminal justice system. And this is a terminology Braithwaite explicitly does not endorse in this context when he writes of the necessity of

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Everything You Always Wanted to Know About Restorative Justice

switching between different strategies only one of which is restorative justice (cf. the regulatory pyramid).15 Of course, this is not per se an objection to the theory suggested by Braithwaite but only to the words used. My reason for emphasising it is just that his move away from the restorative justice process and to traditional deterrence and incapacitation, that is, the first step up the escalatory ladder, is really made earlier in his theory than his wording would suggest. From this point onward, there is actually little to separate Braithwaite and, e.g., a traditional utilitarian penal philosopher. Thus, a traditional utilitarian would probably agree that we should offer rehabilitation to known repeat offenders all the while maintaining the threat of punishment if they do not mend their ways. The only difference, perhaps, is that the utilitarian would uphold the threat of punishment, even if the offender completed the rehabilitation program. Correspondingly, Braithwaite’s choice of words hides that perhaps he has already at this point put himself apart from quite a few proponents of restorative justice. In effect he is telling us that in all those situations where a known repeat offender commits a crime while targeted there will be no restorative justice process afterwards because the offender will have to go directly to court. This means that the many victims of these crimes will be denied the right to a restorative justice process including all the advantages that allegedly flow from such a process, simply because “their” offender has refused to take rehabilitative measures some time in the past. I am not sure if Braithwaite’s wording conceals a substantial confusion on his part as regards these implications of his theory of responsive regulation. If so it could perhaps indicate that the announced marriage between Braithwaite the criminologist and Braithwaite the scholar of business regulation (See Braithwaite 2002c, p. ix) is not

A word on terminology: In fact, in this context Braithwaite uses the term restorative justice narrowly to describe what I referred to above as restorative justice processes and he can thus be claimed to deviate from my wide definition above. However, in contrast to most proponents who adopt the narrow definition, Braithwaite develops a comprehensive theory of criminal justice that also covers criminal cases where deliberative processes are unavailable and, on occasion, he describes this comprehensive theory as a theory of restorative justice too, cf. (Braithwaite 2002a). Therefore, as long as the two meanings of the term are clearly distinguished in usage it has no bearing on the substantial discussion.

15

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entirely a happy one. But apart from this I do not see a principled problem with his position so far. And all the rest… Short of a completely offender-free utopia, the above sketch shows us the restorativist’s dream scenario: By default, the vast majority of criminal cases are dealt with through restorative justice processes, and punishment is used only in a (hopefully) small minority of cases involving repeat offenders and only reluctantly after the offender has been given an urgent warning and an honest opportunity to change her ways. Alas, we do not live in this the second best of possible worlds either. And Braithwaite knows this full well. Thus, the number of offenders he eventually suggests should undergo trial and punishment is by far exhausted by hardened criminals offending after due warning and countless restorative justice processes. A superficial reading could otherwise leave the opposite impression. Braithwaite has the most explicit mention and admission of the necessity of using traditional punishment in the passages where he is discussing responsive regulation, and it would seem natural to read the above regulatory pyramid in such a way that the choice between the alternative strategies available – restorative justice, deterrence, incapacitation – was a function solely of the offender’s behaviour – virtuous, rational, incompetent/irrational. This is also what is expressed in the above quoted claim that “we want … a legal system where citizens learn that responsiveness is the way our legal institutions work.” (Braithwaite 2002c, p. 34) This would, however, be a wrong interpretation of Braithwaite. From passages elsewhere in his work, it is clear that trial and punishment is not an option solely reserved for those with a long history of premeditated disregard for the law. As far as I can see, he speaks of the need to skip restorative justice processes and let the offender “go to court” in at least four additional types of cases: i) when offenders openly refuse to participate in a restorative justice process; ii) when offenders maintain their innocence; iii) when the agreed outcome of the restorative justice process exceeds upper limits on punishment enforced by the courts for the criminal offence under consideration; and iv) when participants in a restorative justice process fail to reach an agreement. I

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Everything You Always Wanted to Know About Restorative Justice

will discuss these four types of cases in turn in the remaining part of the paper. Refusing to participate in a restorative justice process: It is obviously always possible that the offender simply refuses to participate in a restorative justice process. In these cases, we cannot simply let her go. We need an alternative option and that option, according to Braithwaite, is a criminal trial: Very few criminal offenders who participate in a restorative justice process would be sitting in the room absent a certain amount of coercion. Without their detection and/or arrest, without the specter of the alternative of a criminal trial, they simply would not cooperate with a process that puts their behavior under public scrutiny. No coercion, no restorative justice (in most cases). (Braithwaite 2002c, p. 34, my emphasis)

This seems immediately unproblematic. As Braithwaite repeatedly emphasises, the system he envisages is not lenient: “[G]ame playing to avoid legal obligations, failure to listen to persuasive arguments about the harm their actions are doing and what must be done to repair it, will inexorably lead to regulatory escalation.” (Braithwaite 2002c, p. 34) And regulatory escalation in this context means going from restorative justice processes to criminal trial and punishment. In other words, Braithwaite has no problems sending to court offenders who openly refuse to participate in an attempt to make things right. Maintaining one’s innocence: In addition there is the slightly different possibility of the offender maintaining her innocence which would render a restorative justice process meaningless. In these cases Braithwaite also suggests a criminal trial: Conferences should never proceed in cases where the defendant sees him, or herself as innocent or blameless; they should not become adjudicative forums. … It is critical that defendants have … a right to terminate the conference at any point that they feel moved to deny the charges being made against them. That is, at any point up to the signing of a final agreement defendants should have a right to withdraw,

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insisting that the matter be either adjudicated before a court or dropped. (Braithwaite 1994, p. 205)

This kind of cases, however, seems somewhat problematic to the restorativist. Generally speaking, restorative justice is an antipaternalistic way of conceiving crime. We should not let state officials impose upon the stakeholders an objective legal truth about the crime. Instead we should look to the stakeholders’ own perceptions of the conflict and to their ideas as to what should be done in response. They are the true experts. This is a line of thinking that can be traced back to Nils Christie’s seminal argument in favour of giving conflicts back to the people (cf. Christie 1977). It is also a line of thinking that is found in Braithwaite’s own writing, for instance, in his celebration of “the collective wisdom of the stakeholders in the circle that decides what is the agreement that is just” (Braithwaite 2002a, p. 158). This anti-paternalism is also what makes the first kind of cases seemingly unproblematic. Here the offender refuses as a stakeholder in an open display of ill will to participate in the restoration of justice. Thus, metaphorically speaking, she voluntarily gives her conflict away. This is what allows the state to assume ownership on her behalf, and to deal with it in the state’s way: trial and punishment. But in the kind of cases now under consideration things are not that simple. The offender maintaining her innocence does not give away her conflict in the same way. She denies entirely that it was hers in the first place. In other words, there is no ill will here – at least not on the face of things. In order to justify trial and punishment, then, the restorativist needs, as it were, to translate the innocence claims into equally open displays of ill will on behalf of the defendant. But if indeed the stakeholders are the true experts, then, by way of hypothesis, we have nothing to go by but the defendant’s own claims of innocence in these cases. Hence, in order to justify state punishment for those who maintain their innocence the restorativist needs to reinstall paternalism to a certain degree. She needs to belief in the decisions of the courts as to the question of guilt to an extent that allows her to consider offenders’ protestations of innocence insincere. This, in turn, will allow her to treat these offenders as being de facto on a par with those who openly refused to cooperate with the restorative justice process from the outset.

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Everything You Always Wanted to Know About Restorative Justice

We should notice carefully that this is not a small admission on behalf of restorative justice. In the writings on restorative justice I am familiar with, rhetoric on court justice remains hard and irreconcilable.16 In fact, the alleged empty formalism of court justice is often presented as an independent argument in favour of the informal procedures of restorative justice. As it turns out, however, this choice cannot be a simple either/or because giving back the conflict to the offender is made conditional upon her initial all-out acceptance of the court’s legal categorisation and definition of the conflict as this kind of crime with that particular perpetrator. In other words, the modification needed in order for Braithwaite to justify the practice of overruling completely the defendant’s innocence pleas with court decisions, is substantial. And, as we shall see in the next section, this problem grows in cases where the judgment of the entire circle and not just that of the defendant gets overruled by the courts. There is, however, an additional problem pertaining to the question of the offender’s guilt that needs to be addressed before proceeding to the next kind of cases. So far we have concluded that a defendant who maintains her innocence throughout should have her fate decided in a criminal court and be punished accordingly if found guilty. If we add to this Braithwaite’s empirical premise that in the overwhelming majority of cases court trials have more punitive outcomes than do restorative justice conferences (Braithwaite 2003a, p. 396), then it is not hard to imagine that defendants honestly believing themselves innocent all the while mistrusting the judgment of the courts, will be moved to opt for the restorative justice option. In other words, we seem to introduce all the well-known procedural dangers of plea-bargaining. Braithwaite recognises a potential problem here. Thus he mentions the concern that restorative justice processes can be used as an inducement to admit guilt (cf. 2002c, p. 164). He denies, however, that this problem should have any specific relevancy to restorative justice: “In this restorative justice is in no different position than any disposition short of the prospect of execution or life imprisonment. Proffering it can induce admissions.” (Braithwaite 2002c, pp. 164-165) This remark, however, seems to me to miss entirely the real issue here. No sanction, in and of itself, can be used to induce admissions – unless we are See above, note 8. See also (Braithwaite 2002a, p. 158) though his argument is more complex. For a discussion, see Holtermann (2009c).

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masochists. At a minimum, we need to be given a choice as between two sanctions, one being comparatively mild; the other comparatively hard. And we need to be informed that the milder option is available only at a price: the admission of guilt. Recognising this we see why the problems pertaining to plea bargaining do seem especially pertinent to the sanction known as restorative justice; why they are, in a sense, intrinsic to this specific process. In contrast to almost all other known sanction forms a restorative justice process is an option which is accessible only if you openly admit to being guilty17. For instance, you can easily maintain your innocence all the while being fined or incarcerated. But, as already mentioned, a restorative justice process where the offender maintains her innocence does not make sense. This means that restorative justice processes cannot work alone. Once they are introduced we need, in addition, a different sanction, a fall back option for all those offenders who maintain their innocence all the way. And if this fall back option will, as a matter of empirical fact, generally be harsher than the restorative justice option, then it would seem that we have created a system which induces admissions of guilt simply by introducing the restorative justice option. In other words, restorative justice processes do seem to be a special case among criminal sanctions “short of the prospect of execution or life imprisonment”. Depending on the way the criminal justice system is constructed, however, this is not necessarily a problem for restorative justice. If plea bargains pose a problem in terms of defendant’s rights it is precisely because they involve a bargain; i.e., the milder sanction is “bought” with a guilty plea at the post-charge/pre-trial stage (usually at arraignment) that implies the waiving of ones right to having the question of guilt decided at a criminal trial.18 But restorative justice programmes do not have to work that way. If only the mild sanction in the shape of a

Or assume responsibility to make things right or any alternative to the same effect. This is usually considered valuable for the defendant because trials are constructed in such a way as to err systematically at the side of caution. This bias is canonically expressed in the so-called Blackstone’s formulation: “[I]t is better that ten guilty persons escape than that one innocent suffer.” (Blackstone 1860book 4, *358) The ideal ratio between guilty persons escaping and innocents who suffer has been the subject of much controversy over the years. For an interesting survey, see (Volokh 1997).

17

18

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Everything You Always Wanted to Know About Restorative Justice

restorative process remains available to the offender who accepts criminal responsibility at the post conviction/pre-sentencing stage even if she has enjoyed the benefits of a trial by pleading not-guilty at the pretrial stage, then the restorative system will have avoided potential critique along the lines of traditional discussions of plea bargains.19 In sum, the procedural challenges pertaining to plea bargaining are real and constantly threatening to restorative justice. They can, however, be kept efficiently at bay if the guilty plea necessary to make the restorative justice process a real option and the right to a court trial at the pre-trial stage remain unconnected. Restorative justice exceeding upper limits: If we are leaving it entirely to “the collective wisdom of the stakeholders in the circle [to decide] what is the agreement that is just” (Braithwaite 2002a, p. 158) – which is the whole idea of the restorative justice process – there is always the risk that the agreement reached confers draconian hardships on the offender completely out of proportion with the crime. As already mentioned Braithwaite emphasises that empirical evidence shows this to be a rare occurrence, but he admits that it does happen, and he acknowledges repeatedly the need for restorative justice to provide reliable safeguards against it.20 Thus, in a typical passage, he emphatically writes: Within the social movement for restorative justice, there is and has always been absolute consensus on one jurisprudential issue. This is that restorative justice processes should never exceed upper limits on punishment enforced by the courts for the criminal offence under consideration. (Braithwaite 2002a, p. 150)21 Of course this still leaves offenders who honestly believe themselves innocent in spite of a guilty verdict, an incentive to lie and play along with the restorative justice process, thus, potentially rendering the process worthless. This, however, should be of no great concern to the restorativist who has already decided to value the credibility of the courts in this regard over that of the offender. 20 To be sure, the numbers may not be enormous but we are not discussing some highly theoretical problem like when philosophers are debating whether there can ever be a real-life situation where we can save a million lives by punishing one innocent person. Thus, according to Braithwaite’s source on this point more than one agreement in every 25 is overturned by the courts because they are judged to exceed upper limits on punishment. See (Bonta, Wallace-Capretta, & Rooney 1998, p. 16). 21 See also (Braithwaite 2002e, p. 567).

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And in order to find out where this upper limit is, we will, of course, have to go to court. The challenge from this kind of cases is somewhat similar to the previous one but it amplifies even further the ambivalent relationship of restorative justice toward the law. In cases like these we are not just overruling the offender’s initial plea of innocence motivated by an understandable but ultimately dismissible act of self interest. We allow the judgment of the court, based on criminal law as it is, to overrule the outcome of a restorative justice process as unanimously agreed upon by all parties in accordance with all the prescribed procedural rules of this process. And in order for this move to be justified it seems an even greater modification in restorative justice rhetoric on the law is necessary. The thrust of Braithwaite’s enthusiasm for restorative justice is delivered by the promise it holds of delivering meaningful “contextual justice” generated by the “collective wisdom of the stakeholders” (Braithwaite 2002a, p. 158). Especially when this contextual justice is contrasted, as Braithwaite does, with the barren formalism of the “consistent justice” of the courts whose attempts to treat like cases alike he calls “a travesty of equal justice” (Braithwaite 2003a, p. 395). Given the “absolute consensus” among restorativists on the jurisprudential issue of upper limits we realise, however, that this apparently unconditional faith in the democratic creativity of the parties is actually heavily side-constrained. In effect the commitment to consensual justice is entirely conditional upon a more basic commitment to more or less traditional consistent justice, and all that is really left to the creativity of the parties is something more akin to discretion in the Dworkinian sense: “Discretion, like the hole in a doughnut, does not exist except as an area left open by a surrounding belt of restriction. It is therefore a relative concept.” (Dworkin 1977, p. 31) And in this case, the surrounding belt of restriction is the upper limits on punishment set out by criminal courts pursuing consistent justice. This conclusion could, perhaps, be challenged on grounds of incommensurability. Courts, it seems, are generally faced with a relatively narrow range of parameters on which to measure punitive harshness: number of days sentenced to jail, amount of money fined, number of hours of community service ordered, etc. But many, if not most, restorative justice conferences end with agreements, the terms of 45

Everything You Always Wanted to Know About Restorative Justice

which are not directly translatable into this punitive vernacular of the criminal courts. For instance, in a Danish restorative justice process following the assault of a bus driver the victim and the offender agreed that the offender should avoid future use of the particular bus route where the victim worked (Cf. Henriksen 2003a, p. 48). But how big a fine does this amount to? How many hours of community work? In other words, it seems that when examining if restorative justice agreements exceed upper limits on punishment we will, for the most part, be entering the dubious business of comparing oranges and apples – or, perhaps more to the point, of finding out how many oranges it takes to exceed, say, ten apples. And this, as we all know, is not an easy business. Thus it seems, after all, that it could actually be a fairly easy matter for restorative justice conferences not to exceed legally specific upper limits on punishment. The only thing to remember when deciding on an outcome would be to stay out of the penal currency traditionally dealt with in the courts. And as long as this is done, there are no limits to the agreements of the conference. However, this would, in my view, be a misinterpretation of Braithwaite’s assuring remarks on upper limits (though I admit that he is not entirely unambiguous on this issue). Not that the restorative justice process should not be allowed to make the move beyond traditional punitive measures. They should.22 But it simply seems implausible that, on Braithwaite’s account, this move in itself would bring the restorative process entirely beyond the reach of some upper limits. First of all, subscribing to incommensurability in this strong sense of the word seems inconsistent with Braithwaite’s general view on proportionality which could reasonably be said to presuppose some kind of rough and ready commensurability between otherwise apparently incommensurable entities. Thus, Braithwaite readily speaks of the existing legal limits to punishment as being somehow proportionate to the crimes in question23: “Upper limits against the imposition of disproportionately high punishments can and should be And as one anonymous reviewer noted, it has become more and more prevalent in recent years that even courts move beyond the classical punitive parameters and grant e.g. injunctive relief that has some resemblance to the Danish case. 23 Whether this assumption is tenable in itself is a question that I leave untouched in this article. For an interesting critique of the general notion of proportionality between crime and punishment, see Ryberg (2004).

22

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part of a synthesis of just deserts and restorative justice.” (Braithwaite 2003a, p. 391)24 But strictly speaking it seems equally meaningful or meaningless to ask how many days in prison it would take for a punishment to become disproportionately high to, say, an armed robbery as it is to ask how many bus route bans it would take to exceed a certain amount of money fined. If we can presuppose the availability of a meaningful answer to the first question (and Braithwaite manifestly does that), it is hard to see why we should consider the difficulties in answering the second question insurmountable. Secondly, if indeed Braithwaite did consider the incommensurability problem insurmountable it would, as already indicated, for all practical purposes render his guarantees against draconic punishments in restorative justice vacuous. And this provides a strong argument against such an interpretation. It simply seems absurd to claim that more than, say, 200 hours of community service would exceed upper limits on punishment while it would be okay, for instance, to ban an offender completely from any future use of public transportation. Thus, Braithwaite needs his bulwark against disproportionately hard punishments to work also when conferences stay out of the penal currency dealt with in courts. It may generally be impossible – once the spectre of outcomes is opened by the introduction of restorative justice – to codify exhaustively beforehand the exact upper limits on all possible sanction forms.25 And it may generally be difficult for the courts to 24 To be sure, Braithwaite rejects any idea of strong proportionality in the traditional retributivist sense of upper and lower limits on punishment. Thus he writes immediately afterwards: “But lower limits are a roadblock to victims being able to get the grace of mercy when this is what they see as important to their own healing.” (2003a, p. 391) 25 However, it does seem to leave restorative justice at odds with the principle of legality. Handing the power to punish over to the state is usually considered acceptable only if citizens gain in return security from being arbitrarily subjected to this power. This is part of what makes the rule of law preferable to the state of nature. In the words of John Locke (1988, p. § 136): “To this end it is that Men give up all their Natural Power to the Society which they enter into, and the Community put the Legislative Power into such hands as they think fit, with this trust, that they shall be govern’d by declared Laws, or else their Peace, Quiet, and Property will still be at the same uncertainty, as it was in the state of Nature.” Braithwaite disputes the unconditional value of such predictability, arguing that we should only protect citizens from being adversely affected by any lack of predictability: “Who wants the reliance of knowing that you are prevented from getting less than this, or much less?” (Braithwaite 2003a, pp. 394-395) I shall not get further into this discussion

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Everything You Always Wanted to Know About Restorative Justice

determine whether any given agreement in fact does impose disproportionately high punishments on the offender. But in the system Braithwaite envisages it will nevertheless be their job to do exactly that – to make sure that outcomes of restorative justice processes do not transgress upper limits on punishment, even if the account is made up in extralegal currency.26 Summing up, paternalism undoubtedly prevails in Braithwaite’s vision of a restorative criminal justice system, even when consensus between the stakeholders is obtainable – in spite of his anti-legal rhetoric leaving the opposite impression. But as long as this is clear, as long as Braithwaite stands ready to moderate his rhetoric accordingly, I do not see a principled problem in his position on this issue. If he stands ready to admit that occasionally we find nothing but collective stupidity among the stakeholders while wisdom is entirely on the side of the courts, it is perfectly possible for him to rely thus on the sound judgment of the criminal courts on the issue of upper limits. When consensus does not show: The final type of cases where the offender’s fate must ultimately be decided in court is those cases where the parties never do reach an agreement on an appropriate outcome. But in restorative justice processes consensus is king. Hence, no one should be forced to sign a deal that they find unjust. In Braithwaite’s words:

here. Suffice to say that it obviously has a bearing on the general evaluation of restorative justice. 26 Or, more to the point: this will be the job of the courts once cases of possible punitive excess end up on their desk. How Braithwaite intends to make sure that they actually do that remains, however, unclear. Thus he writes: “When appropriate funding is available for legal advocacy, advocates can monitor lists of conference outcomes and use other means to find cases where they should tap offenders or victims on the shoulder to advise them to appeal the conference agreement because they could get a better outcome in the courts.” (Braithwaite 2002c, p. 166) This would seem, however, to leave the entire decision of going to court in cases of punitive excess to those same case parties who have already showed themselves collectively unwise by signing the excess agreement in the first place. Thus, instead of courts actively controlling things when consensus has gone haywire, they only decide cases where consensus eventually did not show because one party regained her senses. And if this is the case, it is unclear how Braithwaite’s assuring remarks of absolute restorative justice consensus on the jurisprudential issue of upper limits translates into criminal justice practice.

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Outlining the Shadow of the Axe

[If a stakeholder in a crime can not agree to] the agreement proposed in a restorative justice conference, what she should do, and all she should do, after failing to persuade others that the agreement is unjust, is argue that there is no consensus on the agreement and, this being so, the matter should be sent to court. (Braithwaite 2002a, p. 163, my emphasis)

And again, going to court means that the offender will be punished according to the letter of the law. This last category poses the most serious challenge for Braithwaite’s vision of restorative justice. It may seem small and unimportant on the face of it. But the size of it will arguably depend heavily on the exact guidelines which are proposed in order to handle these cases, and potentially it threatens the foundations of restorative justice. The first thing to notice is that, as I have argued elsewhere (cf. Holtermann 2009c), going to court implies, other things being equal, proportionate punishment in the strong sense of the word, that is, between upper and lower limits. The entire innovative force of restorative justice lies in the process whereby the parties meet each other and in the guidelines developed for referring cases back and forth between criminal court and restorative justice processes. How the traditional legal system should treat cases in court, is a question to which Braithwaite provides no new answers. And it is exactly cases of this sort we are considering here. But the traditional system honours consistency. It treats like cases alike and it imposes proportionate punishments between upper and lower limits. How could we possibly defend treating offenders differently when meting out punishment, if the trial has shown that there is no relevant difference with regard to the legal fact; that is, if we are dealing, legally speaking, with like cases? Removing the lower limits on punishment made sense from the perspective of restorative justice, only when the varying attitude of the victim still had a role to play. But in the group of cases considered here the victim no longer plays a part because, ex hypothesis, the parties never reached an agreement. Besides the offender the state is now the only party to the criminal trial and it simply makes no sense to grant the judge or the prosecutor the same opportunity as the victim to forgive every now and then; to let them “get, occasionally, the grace of mercy” (Cf. Braithwaite 2003a, p. 391).

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Everything You Always Wanted to Know About Restorative Justice

Once this is clear it appears, however, to open a leeway of abuse which threatens the entire restorative justice system. This is so because it seems to confer absolute powers to the victim as regards the outcome settlement leaving it a dictate rather than the hoped for agreement “that all in the circle can sign off on as contextually just” (Braithwaite 2002a). Everything the victim wants up to the limits of the law she will get, simply because she can refuse to sign any agreement placing milder burdens on the offender. If the offender knows fully well that lack of consensus puts the case back into the courts where, all other things being equal, she will get the legally proportionate punishment, she might as well get it over and done with and “voluntarily” sign the proposed deal right away. This should be unacceptable to the restorativist for two reasons. First, conferring such de facto dictatorial powers to the victim is at odds with the fundamental restorative ideal of justice for all stakeholders. Thus Braithwaite explicitly writes: … of course restorativists must reject a radical vision of victim empowerment that says any result the victim wants she should get so long as it does not breach upper constraints on punishment. Restorativists … must seek to craft a superior fidelity to the goal of equal concern and respect for all those affected by the crime. (Braithwaite 2003a, p. 395)27

Secondly, this seems to jeopardise the incentive necessary to channel offenders into restorative justice processes in the first place. As earlier noted Braithwaite is well aware that “without the specter of the alternative of a criminal trial, [most offenders] simply would not cooperate with a process that puts their behavior under public scrutiny.” (Braithwaite 2002c, p. 34) But if the likelihood increases that the sanction decided upon in the restorative justice process equals that in court, this mechanism gets suspended. Especially considering that the offender going directly to court will not have to go through the potentially unpleasant experience of meeting the victim face to face.

In addition he writes: “The challenge is to have the Sword of Damocles always threatening in the background but never threatened in the foreground.” (2002c, p. 119) If in fact the procedural rules confer dictatorial powers to the victim restorative justice would seem to have failed to meet this challenge.

27

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Outlining the Shadow of the Axe

So what could be done in order to avoid this predicament? How else could the restorative justice system be designed? One possibility would be to decide that in the absence of an agreement the offender should go free because the failure was somehow “the fault” of the victim, thus leaving the offender’s participation in the conference the only criminal sanction. However, this does not look like a viable solution because it would seem to confer, instead, the same dictatorial powers to the offender. If it were to become common knowledge that any lack of agreement has no consequences for the offender whatsoever28, it is not difficult to imagine non-cooperative offenders attending conferences according to the rules but refusing to sign any agreement posing the slightest burden on their shoulders. But as already mentioned Braithwaite is looking for a solution that shows equal concern and respect for all those affected by the crime. Thus, if we should reject, on these grounds, any idea of victim empowerment that says what the victim wants the victim should get, the same idea applied to the offender is surely equally unacceptable. Then what should we do in order to secure that all parties has an incentive to actually work towards an agreement “that all in the circle can sign off on as contextually just” (Braithwaite 2002a, p. 158)? Perhaps we could introduce surrogate restorative sessions where the offender negotiated with a surrogate partner if agreement never showed. However, this also leaves several problems. First, why should it be the victim and not the offender who would be replaced by a surrogate if the idea of restorative justice is equal concern for all parties? And second, this would only postpone the problem because the offender (/the victim) could refuse to sign any agreement proposed by the surrogate partner too. In other words, we would need a procedure in the case of lack of agreement in surrogate conferences too. And here two equally unacceptable options present themselves. The offender could either be referred to court in which case the problem remains, or the proposed agreement terms could be dictated on her in which case it would be difficult to tell the difference between this surrogate process and a traditional trial.

And we remember that according to most restorativists rights and rules on these issues should become common knowledge for the offender. See (United Nations 2002).

28

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Everything You Always Wanted to Know About Restorative Justice

One final possibility would be to ask the courts to take into account the offender’s behaviour in the restorative justice process when ultimately adjudicating the case. This would allow for an evaluation of her good will or lack thereof and thus leave her with an incentive to play along with the restorative justice process. But as we all know, it takes two to tango. Being good contextualists restorative justice proponents can surely appreciate that behaviour does not exist in and of itself – negotiating behaviour least of all. In a restorative justice conference the offender’s behaviour is at least partly a response to the victim’s behaviour. Thus, this “solution” would in turn necessitate an evaluation of the victim’s behaviour as well. Was the victim fair and forgiving or vindictive and draconian? Answering this sort of questions would first of all create a huge challenge for the existing legal system. It would necessitate an entirely new jurisprudence, thus adding to the job of convicting and sentencing the ungrateful job of evaluating restorative justice behaviour. And even if this challenge could be met, it is highly doubtful if the restorative justice process itself would survive being subjected to this kind of evaluation. First of all it would introduce an even heavier paternalistic element than the ones already considered. It is hard to see how parties to the conflict would seriously be considered “owners of their own conflict” if each step in the process were to be heavily monitored and their behaviour was to be evaluated by legal experts. As we know from Bentham (1995 (orig. 1787)) and Foucault (1977), and as restorativists would readily agree, supervision is the first step towards internalisation of norms. In other words, it is hard to see how the much celebrated creativity of the parties could be sustained in such a system. Secondly, the privacy of the process is generally considered a key element by most proponents because it is regarded as a necessary means in order for the conference to be as truthful as possible. It is difficult to see how this privacy should be preserved if the entire process would ultimately be evaluated in a court of law. Summing up it is hard to see any attractive alternative to Braithwaite’s solution of simply sending cases to court in the absence of an agreement. This means that, as it stands, Braithwaite unintentionally proposes a theory that confers virtually absolute power to the victim as regards the outcome agreement, and that has, in addition, severe difficulties providing the incentive necessary to channel a sufficient number of offenders into restorative justice processes in the first place. 52

Outlining the Shadow of the Axe

Conclusion

I have investigated the use of traditional trial and punishment in restorative justice. In particular, I have reconstructed and critically examined the rules and principles suggested by John Braithwaite for referring cases back and forth between restorative justice processes and court trials. And this was all done in order to determine the degree to which restorative justice provides a serious alternative to traditional criminal justice. The general result of the investigation has been negative in a twofold manner. On the one hand I have shown that Braithwaite tends to misrepresent his own theory rather gravely. As stated he prefers to illustrate his position on this issue by the regulatory pyramid (cf. figure 1 above). However, the above close reading has shown this to be an illchosen illustration. First, it is not exhaustive. The regulatory pyramid has no place for a large fraction of the criminal cases that would actually end up in court in Braithwaite’s system. And secondly, the triangular shape suggests metaphorically a certain ratio between cases handled in restorative justice processes and cases handled in court, the former constituting the vast majority. No such relationship can however be taken for granted. Predicting how stakeholders would respond in a fully restorative justice system where the hitherto largely hidden “systemic mechanics” were common knowledge is of course a difficult empirical question involving countless unknown factors. The inherent incentive problem brought to light here suggests, however, a pull towards a wholly different distribution from the one Braithwaite predicts. For these reasons I suggest Table 1 as a more apt illustration of his theory.

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Everything You Always Wanted to Know About Restorative Justice

Table 1 Procedural logistics à la Braithwaite:

Sanction:

Offender:

Court trial

Proportionate punishment in the strong sense, i.e., between upper and lower limits (including incarceration – if sufficiently serious crime)

-

Crime committed

Forum conveniens:

-

No crime committed

Restorative justice process

Restorative outcome agreement not exceeding proportionate upper limits

-

Court ordered warning “in between crimes”

Surveillance

-

Irrational/incompetent actor (committing an offence in spite of being warned) Uncooperative actor Actor maintaining innocence Actor agreeing with victim on disproportionately harsh punishment Actor not reaching an agreement with the victim (for any reason) Virtuous actor (and lucky, i.e., with a virtuous victim)

Hardened repeat offender

By spelling out, thus, in greater detail the implications of Braithwaite’s theory, I have, on the other hand, shown why the inevitable use of traditional trial and punishment continues to pose serious challenges to the theory of restorative justice: •

54

First, compromises with traditional criminal justice (in the shape of a general approval of the crucial role of criminal law, state paternalism and state justice) must be much more widespread than

Outlining the Shadow of the Axe





is coherent with the harsh anti-legal rhetoric of restorative justice proponents, including Braithwaite.29 Second, in spite of an express ideal of creating a system that is responsive to the offender’s behaviour the choice of traditional trial and punishment will often depend on factors wholly outside the reach of the offender, thus rendering the system arbitrary to a degree where it almost becomes unjust.30 Third, the envisioned system faces severe difficulties creating an incentive structure that makes it possible to push sufficiently large portions of criminal cases through restorative justice processes.

Together these challenges show that restorative justice at its current theoretical best has serious problems providing clear principled guidelines for some of the most basic operations of the criminal justice system. This may not be a devastating blow to the theory of restorative justice. But in order for proponents to take up this challenge they should take good care not to copy the old strategy of dodging the question by pointing to the informal and/or provisional character of restorative justice. As I have argued, a general moratorium on discussion of these principled issues cannot be granted. The challenges raised are real and not to be ignored. If restorative justice is to make the crucial step from the margins of the criminal justice system and into the centre, proponents have to reconsider carefully how the shadow of the axe falls on restorative justice processes. Other theorists have noticed (without paying quite the same attention to details) much the same discrepancy between restorative rhetoric and the widespread dependency of most current restorative programs on the traditional criminal justice system. The thrust of this critique tend, however, to take the opposite direction. Thus, e.g., (Pavlich 2005) argue that restorative justice should try harder to honour the revolutionary promise of its anti-legal rhetoric. For a critique which aims directly at such radical rejections of traditional legal categories of the criminal justice system, see Holtermann (2009c). 30 (Woolford & Ratner 2008) have warned against the related danger of restorative justice inadvertently participating in a second and perhaps even more effective round of “stealing conflicts from the people”. This possibility occurs when the ideal of informal justice gets co-opted by the criminal justice system into an informalformal justice complex through increased professionalization, institutionalisation, etc.: “Police officers, lawyers and judges have become necessary players in most restorative programmes, acting as gatekeepers, administrators and facilitators of their operations. With them, they bring the dominant rationalities of criminal justice.” (2008, pp. 118-119)

29

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Acknowledgments I would like to thank members of the Danish Research Group for Criminal Justice Ethics, Roskilde University and two anonymous reviewers at Criminal Law and Philosophy for extensive and insightful comments resulting in substantial improvements to this paper.

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Chapter 3 The Hobgoblin of Little Minds – Restorative Justice and the Law

Formalism and rule-scepticism are the Scylla and Charybdis of juristic theory; they are great exaggerations, salutary where they correct each other, and the truth lies between them. – H.L.A. Hart

Abstract: One central though often overlooked argument in favour of restorative justice is directed against the law as such which proponents of this new approach to crime accuse of being an inapt and fundamentally unjust instrument for the handling of crime. I examine two versions of this argument: i) that the law is, in virtue of its generality, an arbitrary classification system which squeezes varied human behaviour into universal categories; and ii) that the legal ideal of treating like cases alike holds no independent value. I show that both arguments are misguided, and I conclude that the anti-legal rhetoric should be moderated considerably if restorative justice is to be a tenable theory. Keywords: Braithwaite, J.; consistent justice; consensual justice; crime; law critique; punishment; restorative justice; rule of law

Introduction

It is a widely shared notion that crime should be handled through a criminal trial the goal of which is to determine guilt and mete out punishment to the offender. The primary parties to the trial are the state and the offender, while the victim is consigned to a role as witness contributing to the resolution of the case. Over the last two to three decades, however, this legal orthodoxy has found a remarkable

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challenger in the shape of an international movement in favour of restorative justice, that is, by the conception of a criminal justice system whereby, as one prominent definition has it, “the parties with a stake in a specific offence resolve collectively how to deal with the aftermath of the offence and its implications for the future.” (Marshall 2003, p. 28) Besides a heavy impact on academic discourse restorative justice, has already reached a number of remarkable successes in terms of converting theory into practice. So far, the largest impact has been within the area of juvenile delinquency (cf. Johnstone 2002, p. 15) but most proponents argue that it could and should be spread out to all areas of criminal justice. A variety of arguments have been launched in favour of this way of handling crime. Thus, proponents claim, for instance, that restorative justice is a more effective means for reducing recidivism than traditional state punishment; that it is less expensive; that it increases victim satisfaction, or that it is perceived as being more procedurally fair by the offender (cf. e.g. Johnstone 2002, p. 21ff; Sherman & Strang 2007). Whether these claims are ultimately sustainable depends on complex empirical issues, which I will not address in this paper. Instead, I would like to focus on a more principled argument in favour of restorative justice; an argument, which is often forgotten in the more empirical discussions but which, nonetheless, lies at the very root of the theory of restorative justice. This argument is directed against the law as such1, which is criticized by many restorative justice advocates for being an inapt and fundamentally unjust instrument for the regulating and handling of the various kinds of behaviour we call crime. The criminal legal system is seen as rigid and formalistic in contrast with the more flexible and context sensitive informal procedures of restorative justice processes. Taking this line of argument, the campaign for restorative justice potentially goes a lot further than mere penal reform. It attacks the very idea of building the state on a foundation of law; the cornerstone in any rule of law. Or so it could seem. Proponents of restorative justice have maintained, in reply, that fundamental legal rights will remain completely intact in a restorative justice system, and notably John Braithwaite has, in this connection, emphasized the need for restorative

1

The direct aim of this criticism is the criminal law but it strikes, if valid, all law.

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justice to make some admissions to the rule of law.2 Characteristically, however, this move has been coupled with a reluctance to spell out in any great detail the precise content of this admission to the law. This restraint has had the unfortunate consequence of leaving the overall implications for the theory of restorative justice much in the dark.3 Thus, besides examining the soundness of the various anti-legal arguments propagated by proponents of restorative justice there remains the pertinent assignment of unravelling the precise content and implications of these admissions made to the rule of law, and, in particular, of considering the consistency between the two. It is such an analysis that I offer in this paper. I show that the necessary admissions to the rule of law go much deeper than what is commonly recognized. On the only plausible reading they are of such a wide reaching and substantial character as to make them ultimately incompatible with the harsh anti-legal rhetoric commonly applied in the arguments in favour of restorative justice. Without substantial and unequivocal commitment to the law restorative justice is an unconvincing theory of criminal justice. The law critique has taken on different shapes in the writings of different proponents of restorative justice. The paper starts off (in section 2) considering a somewhat crude version which nevertheless finds some supporters in the literature. According to this line of critique the central problem is that the law is an arbitrary classification system; a critique which, in turn, can take on the shape of a more general critique of rationality and of a more specific critique of the law as law. In section 3 I consider a somewhat more promising version of the critique which finds its major spokesman in John Braithwaite’s work. Braithwaite’s strategy is directed not so much against the possibility of regulating human behaviour in a fairly accurate manner by the law. Instead, he argues that even if possible it is not in the least attractive to make the attempt. Finally, in the conclusion, I sum up my main points and suggest which direction discussions could take next.

Cf. e.g. Braithwaite (2002c, 2003b). Other proponents of restorative justice that have addressed this issue count Dignan (e.g. 2002), Van Ness (2002) and Walgrave (e.g. 2002, 2008). 3 For critical discussion on this issue, see also Holtermann (2009d).

2

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Everything You Always Wanted to Know About Restorative Justice The law as an arbitrary classification system

As mentioned earlier, restorative justice is first and foremost a claim about the legitimate parties in the aftermath of a crime, and it is, in particular, an attack on the thought of assigning in this connection a central role to the state. To many proponents of restorative justice a crucial argument in favour of this point of view is an all-out scepticism as regards the law and its modus operandi. Because the law is the medium through which the state manifests and legitimizes its participation in the criminal process, any defect of the law will strike this participation with equal power. Thus, emphasis is repeatedly put on the alleged pointlessness of holding people accountable to abstract legal categories, which are characterized as more or less arbitrary boxes devoid of any connection with reality. A paradigmatic example of this attitude is found in the following description of the law by one of the theoretical fathers of the movement, Nils Christie: Training in law is a training in simplifications. It is a trained incapacity to look at all values in a situation, and instead to select only the legally relevant ones, that is, those defined by the high priests within the system to be the relevant ones. (Christie 1981, p. 21)

A corresponding passage is found, for instance, in the writings of another central figure of restorative justice, Howard Zehr: Crime is a result of a legal system which makes arbitrary distinctions between various harms and conflicts. It is an artificial construct which throws into one basket a variety of unrelated behaviors and experiences. It separates them from other harms and violations and thereby obscures the real meaning of the experience. (Zehr 2005, p. 183)

In other words, the objection is that the law is an artificial and overly abstract classification system which is fundamentally incapable of capturing infinitely complex and multi facetted human behaviour. And in so far as this observation amounts to an argument in favour of restorative justice we can infer, by way of contrast, that Christie and Zehr believes that a free negotiation between the immediate stakeholders modus restorative justice would fare better at capturing the essentials in any given case.

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A rationality critique How should this argument be understood more precisely? Why should the law, as a matter of principle, be unsuited for the handling of its object? One possibility is to read the argument as an instance of a more general rationality critique; a critique which one could claim (perhaps uncharitably?) to find remnants of in these and like passages in favour of restorative justice. The argument continues roughly along these lines: any verbalization, any conceptual categorisation and classification entails in and of itself a “violation” of the object in its infinite diversity and context specificity. Thus, if we are to hope for truth at all, we should move, as it were, behind language, behind our rationality, toward a more intuitive comprehension of whatever is our object. And in the case of crime the restorative justice process should be the means to bring us, thus, behind language to the event itself. This interpretation of the critique of the law is supported by the slight taste of “Fall of Man” which is a continual element in many advocates’ description of the traditional Western legal system.4 It is, altogether, not a completely unknown phenomenon in academic discourse to find rationality critique linked closely to a more general critique of (Western) civilisation. And in the case of restorative justice we surely find the last ingredient in the shape of recurrent references to the originality of this model for the handling of conflicts. This originality is often presented as an independent argument in favour of restorative justice and against traditional state punishment.5 This is not the version of the argument against the law that I find most convincing. I will not, however, go deeper into discussion of a law critique, which ultimately finds support in this kind of rather general philosophical views. First, most proponents of restorative justice actually do not take their law criticism to quite these extremes. In fact, more radical critics of traditional criminal justice have criticised restorative justice precisely on this point arguing that even in holding on to such highly general concepts as crime, victim and offender restorative justice itself remains committed to the fundamental rationale underlying traditional criminal justice.6 Cf. e.g. (Christie 1977). Cf. e.g. (Braithwaite 2002c, p. Ch. 1) and (Johnstone 2002, p. Ch. 3). 6 Cf. Pavlich (2005). By way of contrast, Zehr explicitly admits (even if somewhat reluctantly) to the need for restorative justice to hold on to the notion of crime – “keeping in mind its inadequacies” (2005, p. 184).

4 5

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Second, a thorough discussion of this highly general objection will take us too far into the philosophy of language and epistemology if it is to be done properly. Instead, I only say like Ramsey to Wittgenstein: “What can't be said, can't be said, and it can't be whistled either.” If the truth is unobtainable in principle through our rationality and language, I gather that there is not much to be gained from attempting to somehow circumvent this inadequacy by putting our faith in e.g. some kind of mystical intuition. Transferred to the handling of crime this means that if something (on the above grounds) is unsayable in principle by a judge, it cannot be said by the parties to the crime either. The generality of the law vs. behaviour in context The critique of the law presented by Zehr, Christie and others can, however, also be read in a more concrete version. Instead of seeing the above passages as instances of a highly general rationality critique they can be interpreted as underlining the specific epistemological problems that arise from classifying human behaviour in abstract categories – and, markedly, to do this prospectively which is the well-known condition of the law. And this thought does have some sense to it after all.7 Aristotle famously introduced a distinction between theoretical wisdom (sophia) dealing with things that are universal and necessary (cf. Aristotle 1987, p. 1140b1131) and practical wisdom (phronesis) dealing with ever changeable human actions (cf. Aristotle 1987, p. 1140b1141). And he stressed in this connection the particular epistemological problems that emerge when we try to categorize ex ante infinitely varied human actions in an abstract set of rules.8 When we are to decide what we should do in specific cases we cannot fall back on universal directions for action. We have to deliberate on the basis of an individual assessment of the specific situation. However, it is exactly this kind of individual assessment of each conflict that seems to be rendered impossible by the rule of law when it insists on building the state on a foundation of law. The commonly Even though one could wish that proponents of restorative justice were a little more patient in spelling out this part of the argument. In the versions of the law critique that I am familiar with, this argument is presented more like a truism than a controversial claim in need of substantive argumentative support. 8 This is also the reason why Aristotle’s ethics does not, like e.g. Kant’s, become an ethics of rules (Friis Johansen 1998, p. 383).

7

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recognized principle of legality insists that the law should be formulated in general terms and that it should be declared beforehand. This seems to make it impossible to adjudicate according to the law while at the same time acting phronetically. In a more plausible version of the argument, then, it is this principled impossibility which proponents of restorative justice refer to, when they criticize the dependence of the existing criminal system upon the law. This interpretation is supported, for instance, by Zehr’s characterization of the contrast between the conceptions of crime in traditional penal theory and restorative justice respectively: “Offense defined in technical, legal terms, vs. offense understood in full context: moral, social, economical, political”. (Zehr 2005, pp. 185, my emphasis) As mentioned, this critique is more plausible. The problem is altogether well-known. Thus, a classic example is found in the writings of Thomas Aquinas: Suppose a siege, then a decree that the city gates are to be kept closed is a useful general measure for the public safety. Yet say some citizens among the defenders are being pursued by the enemy, the cost would be heavy were the gates not to be opened to them. So opened they are to be, against the letter of the decree, in order to defend that very common safety the ruling authority had in view. (Thomas 1964, pp. 1a2æ. 96, 96)

While this passage does indeed provide a paradigmatic example of the problem emphasized by many restorative justice proponents, it also points, somewhat ironically, to the fundamental problem in making this an argument in favour of restorative justice. Aquinas wrote Summa Theologiæ in the thirteenth century. And he was preceded in turn by Aristotle by almost 1500 years in addressing the problem. In other words, the difficulty inherent in regulating particularistic human behaviour through universally formulated laws has not exactly remained undiscovered throughout the years. On the contrary it has been at the very centre of attention in philosophy of law at least since the days of Aristotle, and legal philosophers have over the years managed to develop highly sophisticated theories of law that meet this challenge. Thus, the first thing to notice about Christie’s and Zehr’s analysis of the workings of the law vis-à-vis this philosophical tradition is that they arguably exaggerate the magnitude of the problem. The categories of the 63

Everything You Always Wanted to Know About Restorative Justice

law may well be universal and prospective but that does not mean that they are deprived of any correspondence with reality, with actual human behaviour. This point is expressed very convincingly by H.L.A. Hart in The Concept of Law: If it were not possible to communicate general standards of conduct, which multitudes of individuals could understand, without further direction, as requiring from them certain conduct when occasion arose, nothing that we now recognize as law could exist. Hence, the law must predominantly, but by no means exclusively refer to classes of persons, and to classes of acts, things, and circumstances; and its successful operation over vast areas of social life depends on a widely diffused capacity to recognize particular acts, things, and circumstances as instances of the general classifications which the law makes. (Hart 1994, p. 124)

The law actually does work, by and large, according to its intention, that is, as an effective guide to action, and this is precisely because it does not, in the words of Zehr “[throw] into one basket a variety of unrelated behaviours and experiences”. On the contrary, the main rule appears to be that the law qua law actually covers our ordinary behaviour quite well. It manages to single out commonly recognisable and important aspects of human interaction, and only occasionally does it give rise to problems. This conception gains support also from Aristotle: “In those cases, then, in which it is necessary to speak universally, but not possible to do so correctly, the law takes the usual case, though it is not ignorant of the possibility of error.” (Aristotle 1987, pp. 1137b1114-1115, my emphasis) The second problem with this kind of law critique is that neither the remaining group of unusual and problematic behaviour, which seems to be forgotten by black letter law, has been left unnoticed in the philosophy of law. Not only have almost every significant philosopher of law throughout history been more than willing to admit, like Aristotle and Hart, to the existence of human behaviour which is poorly captured in the legal web of universal categories. They have also developed highly sophisticated theories of sources of law to deal successfully with these kinds of human behaviour in judicial practice. As a matter of fact this has arguably been one of the central missions throughout the history of philosophy of law. 64

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It is this entire theoretical discussion which proponents of restorative justice arguably ignore when they portray the judge as a kind of mindless deduction machine armed with a set of rigid universal rules that mechanically converts endlessly diverse human behaviour into neat legal categories. Accommodating the proponents of restorative justice slightly, this image of the judge does perhaps find some support in the more categorical versions of legal positivism where law is identified narrowly with positive written law. For example, it could be argued that positive written norms are the only legitimate sources of law according to Hans Kelsen (1967). And this, perhaps, is not entirely true. As mentioned, most philosophers of law have, however, been well aware of the problem regarding the limited reach of positive law. The common reaction has been to expand the concept of law beyond black letter law. This leads, in the first instance, to the introduction of precedent as a separate source of law – in Anglo-Saxon jurisprudence commonly referred to as the stare decisis-doctrine. Besides written law the judge should take into account earlier decisions by the courts which, due to their specific character, can serve to nuance and supplement the general categories of written law. Adding precedent to the picture, however, still does not exhaust the field of possible human behaviour. The law must, as Hart repeatedly puts it, necessarily be “open textured” (cf. Hart 1994, p. 124ff). Occasionally, we will inevitably be confronted with cases in a grey area where neither written law nor precedent uniquely determine a correct decision. According to Hart, the judge must then exercise her discretion in order to reach a decision. Subsequently, this decision can be added to the existing legal corpus as a precedent thus exercising its influence on future decisions in similar cases. Hart is far from the only philosopher of law who has taken this problem into consideration. Another example is Kelsen’s student Alf Ross, a leading figure in Scandinavian legal realism, who also emphasized the need to expand the concept of the law. Thus, besides written law and precedent Ross included two sources of law: i) custom, by which he referred to the fact that “legal rules, otherwise upheld, are in certain situations not observed by larger or smaller portions of the population but replaced by the customary rule” (Ross 1958, p. 95); and ii) the tradition of culture:

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Popular customs are not absolute and ultimate, but are themselves manifestations of an even deeper source. In every people lives a common tradition of culture which animates all manifest forms of the life of the people – its customs and its legal, religious and social institutions. (Ross 1958, p. 97)

As a last example, Ronald Dworkin has addressed this problem in his critique of the concept of law in legal positivism which he accuses of being too narrow. Thus, in his famous paper “The Model of Rules I” (1977, orig. 1967) Dworkin draws attention to the widespread practice of judges basing their decisions on non-positivized legal principles whenever they find that positive law cuts reality too coarsely. He illustrates this point with a court decision from a famous inheritance case: It is quite true that statutes regulating the making, proof and effect of wills, and the devolution of property, if literally construed, and if their force and effect can in no way and under no circumstances be controlled or modified, give this property to the murderer. [But] all laws as well as contracts may be controlled in their operation and effect by general, fundamental maxims of the common law. No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his iniquity, or to acquire property by his own crime. (Court decision quoted in Dworkin 1977, pp. 23, my emphasis)

Other examples could be mentioned of the awareness within philosophy of law of the limitations of black letter law and of steps taken to remedy this shortcoming. The above suffice, however, to show that the image of the law upon which proponents of restorative justice base their rejection of state punishment, has very little in common with the highly sophisticated concept of law which has been developed over the years within traditional philosophy of law. In completely ignoring these considerations in the argument in favour of restorative justice, proponents arguably commit a straw man fallacy. To the extent that this straw man fallacy has in fact remained largely unchallenged, it is perhaps best explained by the fact that the above considerations have mainly taken place within the area of philosophy of law proper where metaphysical questions as to the proper character of law and epistemological questions as to how generally to identify valid 66

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law traditionally take centre stage. Despite its obvious proximity, however, work within this discipline tends in actual academic practice to take place largely independently of discussions in the philosophy of punishment. Here, answers to such metaphysical and epistemological questions are generally presupposed and instead focus is all predominantly on what should be done to the perpetrators once the legal fact, i.e. the question of guilt, has been satisfactorily determined.9 While this may explain why proponents of restorative justice working within the philosophy of punishment have, as a matter of fact, been fairly successful in criticising the workings of the law in the traditional system, it does not, however, serve to justify the argument per se. Perhaps the real point made in launching this criticism is that all the attempts at sophisticating the law along the above lines inevitably fail. This, however, is a controversial claim that needs to be grounded in solid arguments. It cannot be presented as a mere truism. And until this is done, I, in contrast to Christie and Zehr, see no reason why it should be impossible as a matter of principle for the existing system to honour Aristotle’s old dictum: “And this is the nature of the equitable, a correction of law where it is defective owing to its universality” (Aristotle 1987, pp. 1137b1126-1127). On the contrary, the existing legal system appears, both in theory and practice (cf. Dworkin’s example of a court decision), to be fully capable of comprehending the crime “in full context: moral, social, economical, political” (cf. Zehr 2005, p. 185). Or, to put it more precisely: there is no prima facie reason to believe that the existing system will do a worse job in this regard than will restorative justice processes (cf. also below). Equality before the law as a misconceived ideal

The critique of the law’s role in the handling of crime can, however, also be expressed in a slightly different manner. Instead of basing the critique on the claim that it is impossible to put complex human behaviour in universal legal boxes, one can reject, outright, the value of making the

Any such highly general claim is of course difficult to prove definitively. But it is illustrative that none of the above classical works in philosophy of law are mentioned in the bibliographies to the entries on “Punishment” and “Crime and punishment” in Stanford Encyclopedia of Philosophy and Routledge Encyclopedia of Philosophy respectively. 9

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attempt at all. Among proponents of restorative justice this has been the strategy of John Braithwaite in particular, and he is also the one who, to my knowledge, has put most effort into elaborating this line of thinking. Thus I will restrict myself in the following to a discussion of his concrete arguments in favour of this view. By way of introduction, however, one word of caution is needed: Braithwaite may be the one who, to my knowledge, has been most careful in working out this line of thinking. His writings nevertheless leave some questions open for interpretation. Thus, the following is my reconstruction of the reasoning underlying the claim. From consistent to consensual justice According to Braithwaite’s version of the critique of the law it could, perhaps, be granted that the traditional legal system can develop or actually has developed a relatively nuanced set of eyes for describing the criminal event itself reasonably well. And if this is possible, it might also be possible even to mete out a roughly corresponding punishment. In other words, there are no principled reasons why it should be impossible, within the traditional legal system, to honour the commonly recognized principle in any rule of law of treating like cases alike. The only problem is, however, that according to Braithwaite there is no independent value in doing just this, simply because: “... equal punishment for equal wrongs is a travesty of equal justice” (Braithwaite 2003a, p. 395). Ultimately, the ideal of equality before the law is an empty formalism, and the pursuit of it has no significance at all for justice to be done in the aftermath of a crime. From this perspective, the long lasting obsession in western rules of law with equality before the law is precisely just that: an obsession. Or, in the pithy words of Ralph Waldo Emerson: “A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines” (Emerson 1992, p. 138). The question now is if anything (other than the eloquence of this phrase) speaks in favour of Braithwaite’s seemingly radical point of view. The first thing to notice is that this version of the law critique immediately seems weaker than the one discussed above. After all, Zehr and Christie had the rhetorical advantage of being able to admit (if only in pretence) a certain initial plausibility to the ideal of equality before the law, and only to reject it after showing the (alleged) principled problems in converting this ideal to practice. Here, Braithwaite’s 68

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strategy is much more radical. He flatly denies that this commonly recognized ideal should be the least bit attractive: “I am actually not in the least attracted to evaluating criminal justice in terms of whether it dispenses more equal justice for equal wrongs” (Braithwaite 2003a, p. 394n325). This does, however, seem to place the burden of proof heavily on Braithwaite’s shoulders. For the law critique to be convincing, he cannot simply reject the one in existence. He will have to develop an attractive alternative concept of justice. And this is a “division of labour” which Braithwaite accepts – in the first instance by stating more precisely his critique of the traditional ideal of criminal justice. For, in spite of the harsh rhetoric, it is actually not the very thought of pursuing equality which causes problems according to Braithwaite. Also in his version of restorative justice should like cases be treated alike. Controversy arise only when we specify in which respect we speak thus of equality. And here, Braithwaite argues that we should move the centre of attention away from the past criminal event and toward the current “psychological set-up” of the case-parties. According to Braithwaite the existing system implies a substantial differential treatment when it comes to satisfying the wishes of the case parties in connection with the aftermath of a crime. For instance, victims do not have equal opportunities as regards satisfying their wishes in a court trial. As long as the typical outcome is proportionate punishment, the vengeful victim will, other things equal, stand a better chance of fulfilling her wishes than the forgiving victim wishing to grant mercy to the offender. In restorative justice this inequality disappears: “In restorative justice processes, most victims who say they would like the grace of forgiving their offender and helping them to get on with their lives are given just that…” (Braithwaite 2003a, p. 393) Correspondingly, the restorative process will give the offender who wishes to claim responsibility for her actions and restore the damage done, an opportunity to do so. Thus, in Braithwaite’s version the ideal of equality is reshaped into an ideal of giving all parties an equal opportunity to influence the outcome of the process according to their wishes – which, on no account, should be confused with giving any one party a unilateral right to force through her wishes: With restorative justice, it is the collective wisdom of the stakeholders in the circle that decides what is the agreement that is just in all the

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circumstances, not perhaps the ideal agreement in the view of any one person in the circle, but one that all in the circle can sign off on as contextually just. (Braithwaite 2002b, p. 158)

The contrast between this concept of justice and that of traditional penal philosophy brings to mind the distinction between civil law and criminal law, and many theorists have, in this connection, described the transition to restorative justice as a move toward abandoning criminal law as a special legal area upholding its own procedural rules. In criminal cases it is the duty of the courts to find the truth of the matter (cf. Delmas-Marty & Spencer 2002, p. 636f). This basic duty makes it possible to pursue the twin goals of the procedural rules of criminal law: to avoid judging the innocent while simultaneously making sure that crime does not go unpunished. By contrast, the purpose of the procedural rules of civil law is mainly to resolve disputes between citizens. This shapes the way the civil courts work: In the United States, just as on the Continent, the civil courts must work with what they are given, and they must establish the factual basis of their judgments from the materials the parties supply, and no others. … The court's task is to do, and be seen to be doing, justice between the parties; it is not to ascertain some independent truth. (Kötz 2003, p. 67)10

Correspondingly it is, according to Braithwaite, only the parties’ perception of what has happened and of what should be done to restore it that is allowed a role in the restorative justice process. However, restorative justice actually takes one step further away than civil law from any traditional concept of an objective truth. Even Admittedly, this distinction between civil and criminal procedure is less outspoken in countries in the common law accusatorial tradition (like England) than in Continental countries adhering to the inquisitorial tradition (like France and Germany). One should, however, be careful not to overstate the significance of the difference between the two systems on this point: “Above all – and contrary to what is sometimes heard – the two groups of systems [inquisitorial and adversarial] are united on what the rules of evidence have as their essential aim. In every system this is the manifestation of the truth. … [The] narrow preoccupation [of the common law] with the necessity for proving the facts alleged is only a technique, the ultimate aim of which (as of every other element in English criminal procedure) is the discovery of the truth.” (Delmas-Marty & Spencer 2002, p. 636f)

10

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though the basis for the court’s decision in a civil case is the material provided by the parties, we still need a judge to adjudicate on these grounds. And in principle, her decision can overrule one or both case parties. In restorative justice, on the contrary, the judge is done away with completely. The state is only present in the shape of a facilitator who has no authority to decide the conference outcome. This is left entirely to the case parties themselves. Braithwaite coins this version of the ideal of equality contextual justice while he reserves the term consistent justice for the traditional version. In light of the above considerations, however, this terminology is unfortunate. Context is a relative concept. What is context is decided at any given time by what is “text”, that is, by what is at the centre of attention in a specific situation. And the two concepts of justice differ mainly in their point of view as to what should be at the centre of our attention in the aftermath of a crime. The traditional criminal legal system finds that the criminal event itself should take centre stage. Restorative justice assigns this role to the parties’ perception of the event and of what should be done to restore the relations broken. My point in the first part of this article, however, has been to show that there is no reason in principle why the traditional system should not also be capable of including, to a great extent, the context in which the criminal event took place. This, of course, is not to say that every single aspect of the event will be considered legally relevant. Whether a person crossed a red light in a green or a blue car should be of no importance in court. But the same goes for restorative justice. It is not each and every aspect of the parties’ perception of the case that is allowed a role in restorative justice. For instance, all the elements that the parties could not agree upon will be ignored in the conference outcome if it is to be an agreement “that all in the circle can sign off on”. Against this discussion, it could of course be objected that the specific words are of minor importance as long as we can all agree on their meaning in this context. First, however, Braithwaite’s choice of words has the unfortunate consequence of blurring the real distinction between the two concepts of justice. Second, it appears to me that Braithwaite by choosing these words awards himself with an unfair rhetorical advantage, this being so because the word contextual justice is hardly value free (who would like to promote context-insensitive justice?). Therefore, instead of contrasting consistent justice with

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contextual justice I propose to speak of (event-based) consistent justice versus (stakeholder perception-based) consensual justice. When collective wisdom is replaced by collective stupidity The problem with Braithwaite’s transformation of the legal concept of material truth into a pure consensual concept is, however, that it has unacceptable implications if taken literally. A few examples illustrate how wrong things can go if we abandon completely the concept of material truth in favour of pure consensus between the parties. The first example is found in the world of literature, the second in the real world and the third in my imagination: i)

ii)

iii)

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The false confession: In Dostoyevsky’s Crime and Punishment the painter Mikolai falsely admits to have committed the murder of the money lender and her sister, and he declares himself ready to receive whatever punishment is meted out for him in response. Had sentencing circles been around in the days of Dostoyevsky, it is not impossible that relatives to the victims could have agreed with Mikolai on this perception of events, and that both parties would consequently have signed an appropriate restorative agreement. As is well known, things did not work out quite that way, but this was only because the detective Porfiry Petrovich insisted that there was a “material truth” about the criminal event that had to be uncovered, regardless of the parties’ own lack of interest therein. The one party’s unreasonable perception: In the Danish socalled Rust-case a bouncer at a nightclub shot and killed one person in self-defence when he was attacked by a group of men. Relatives to the deceased apparently felt that the bouncer should pay for his deed with his life. An imam tried to appease the parties with a mediation proposal suggesting that the bouncer should pay a compensation fee of DKK 200.000,- and in addition move out of Copenhagen. This suggestion was made even though the public investigator did not press charges because he estimated that the bouncer had acted in legal selfdefence as defined in Danish criminal law. The outright crazy decision: Peter and I agree that only my immediate and painful death can restore the loss he suffered

The Hobgoblin of Little Minds – Restorative Justice and the Law

when I stole his wallet. We sign my death sentence in an act of complete harmony. The question is how a proponent of restorative justice would handle examples like these where a strictly consensual criterion of justice is honoured but where Braithwaite's collective wisdom of the stakeholders has been replaced, undoubtedly, by their equally collective stupidity. One possibility is, of course, to maintain a complete scepticism regarding the wisdom of anyone other than the parties themselves. This would amount to the claim that the stakeholders are wise, so to speak, by definition, and that all external interference is necessarily wrong. But this option seems downright absurd. A theory of justice that condones perverted decisions of this kind will have a very limited chance of gaining ground outside a narrow circle of dogmatic believers. A more promising route would be to deny the relevance of these examples for a discussion of the restorative concept of consensual justice. This, in turn, could be done on two grounds. First, it could be argued that the cases are irrelevant because they are artificial or, at best, highly exceptional. A claim that, according to Braithwaite, would be empirically well supported: [A]ll the evidence is that when courts overrule restorative justice conferences, it is overwhelmingly to increase punishment, to trump the mercy victims have voted for, and is rarely to reduce punitive excess successfully demanded by victims at conferences. (Braithwaite 2003a, p. 396)

While this observation may serve, as Braithwaite puts it, to keep the worry caused by examples like the above “in empirical perspective” (Braithwaite 2003a, p. 396), it does not, however, rule them out entirely. First of all, at least one of them is found in the real world while another is found in Dostoyevsky’s great novel the fame of which indicates, other things being equal, that the psychological mechanisms portrayed have not been found completely implausible. Secondly, according to Braithwaite’s source on this point, statistics show that while rare actual occurrences of punitive excess is not completely unheard of. Thus, in cases with judicial oversight, more than one agreement in every 25 is overturned by the courts because they are judged to exceed upper limits on punishment (cf. Bonta et al. 1998, p. 16). Third, a dismissal on 73

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grounds of the artificiality of the examples is not open to Braithwaite in particular. His (and Pettit’s) entire argument against so-called crime preventionism is based upon the claim that it will occasionally lead to the framing of the innocent, even if only in highly artificial and exceptional cases.11 Thus, it seems, after all, that restorative justice will have to face the challenge posed to a strictly consensual notion of justice by cases like the above. Braithwaite, on his part, also recognizes this challenge, and he acknowledges explicitly the need to set up reliable safeguards against such nightmarish outcomes of pure consensual justice. He even seems to find it so obvious that he sounds somewhat nettled that anyone would suggest an interpretation of restorative justice which would condone implications of this kind. According to Braithwaite every sensible proponent of restorative justice has, on the contrary, had absolutely no doubt that some kind of recourse to the law is necessary, for instance if it should be decided in a restorative conference to punish more severely than a criminal court would have done in that case: Within the social movement for restorative justice, there is and has always been absolute consensus on one jurisprudential issue. This is that restorative justice processes should never exceed upper limits on punishment enforced by the courts for the criminal offence under consideration. (Braithwaite 2002b, p. 150)

Fair enough. Let us not claim that Braithwaite actually condones absurd results like the ones in the examples. Let us investigate, instead, if this recourse to the law in order to avoid them is actually consistent (!) with his abovementioned flat rejection of consistent justice and of “equal punishment for equal wrongs”. Let us investigate if it is consistent with his corresponding celebration of consensual justice and the collective wisdom and democratic creativity of the parties to the conflict (cf. Braithwaite 1994, p. 203). To do this we have to spell out initially in some detail exactly how Braithwaite imagines this recourse to the law. He does this, as far as I can see, on several levels. First of all, he does not deny completely the possibility of using a traditional criminal trial in settling the question of 11 Cf. (Braithwaite 2003a, p. 396) and (Braithwaite & Pettit 1990, p. 41ff). For discussion, cf. Holtermann (2009e).

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guilt. To be sure, he emphasizes it as one of the advantages of the restorative justice procedure, that it makes it possible to sidestep troublesome legal procedure by introducing a more flexible concept of guilt (cf. e.g. Braithwaite 1994, p. 205). But whenever there is the slightest doubt as regards the question of guilt, Braithwaite seems to think that it should be possible to try the case in court (cf. Braithwaite 2003a, p. 398). And in court a decision will be reached in the traditional manner of criminal law which means uncovering the truth of the matter instead of just leaving it to the parties to “decide” what happened. This move should rule out or at least minimize the number of cases like Mikolai’s false admission of guilt.12 Second, Braithwaite insists, as already mentioned, that the agreement following a restorative justice process should never be allowed to impose a harder punishment on the offender than the one she would have had, had she gone to court.13 This should rule out my other two examples. To safeguard the legal rights of citizens we need “legally specific upper limits on sanctions” (Braithwaite 2002b, p. 164). This is Actually, Braithwaite does not explicitly consider a situation like the one I imagine here using Dostoyevsky as my point of departure. In his discussion with Dolinko (2003a, p. 397) Braithwaite does indeed consider a case where the accused falsely beliefs himself to be guilty. In this example, however, the prosecutor is fully aware that the accused did not do it; that is, she acts in bad faith and the discussion is thus about the conscious framing of the innocent. But the point of my example is different. Other things being equal, in a system which professes a strict consensus criterion of justice the risk of unconsciously judging the innocent is increased compared with a system where the prosecution has an independent duty to uncover the material truth of the matter. The question is how one would avoid situations like the one I describe in this scenario. The problem is not bigger, however, than that Braithwaite could argue along the same lines as he did in the discussion with Dolinko: He could claim that the citizens’ subjective feeling of dominion would be diminished if “word got out” that the system did not by itself try to determine the material truth in criminal cases. And for this reason criminal law and court proceedings should not only be introduced in situations where there is immediate doubt as to the question of guilt, but should be used in all situations to determine guilt beforehand. Whether this recourse to the law is coherent, more generally, with Braithwaite’s critique of consistent justice, is an open question to which I shall return below. 13 Cf. (Braithwaite 2002b, p. 150f). Here it might be objected that the outcome of a restorative process will never be punishment because the very purpose of the exercise is to restore the inflicted harm, not to punish the offender. However, as both Duff (2003, p. 53f), Johnstone (2002, p. 31) and Braithwaite himself (2002b, p. 150) have emphasized, it is always possible that the restorative justice process will inflict hard treatment which is indistinguishable in principle from punishment.

12

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the only area in which Braithwaite admits to be somewhat in agreement with retributivist theories of punishment. But he firmly rejects their second central tenet: that we should have lower limits on punishment proportionate with the crime. The restorativist can argue that reliance that punishment will never exceed an upper limit proportional to the seriousness of the offence is quite enough reliance. Who wants the reliance of knowing that you are prevented from getting less than this, or much less? (Braithwaite 2003a, p. 394f)

However, Braithwaite not only seeks recourse to the law in order to avoid the most absurd results of the voluntary agreements between the parties. He stands out among proponents of restorative justice in his awareness of the problem that voluntary agreements by way of restorative justice will not always be available. One obvious possibility, for instance, is that the parties simply disagree on what should be done to restore the inflicted harm. Another possibility is that the offender refuses entirely to participate in a process with the victim – either because she maintains her innocence or because she simply shows no interest in restoring the harm inflicted on the victim (a possibility which is not too far fetched, after all, considering the fact that she already at least once has shown herself willing to wilfully inflict this harm to the victim). If restorative justice is to provide a full-fledged alternative to traditional state punishment it needs a strategy for the handling of cases like these, and Braithwaite’s solution is to turn to the law also in these situations. This happens within the general framework of so-called responsive regulation. By this concept Braithwaite refers to a flexible strategy on behalf of the system adjusting its reaction in accordance with the attitude shown by the offender with regard to assuming responsibility for her actions and restoring the inflicted harm (cf. Braithwaite 2002c, p. 29ff). The central thought is that the entire process should take place “in the shadow of the axe” (Braithwaite 2002c, p. 36) which means that the alternative awaiting the uncooperative offender should be a traditional criminal trial and subsequent punishment. As Braithwaite remarks with welcome realism:

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Very few criminals who participate in restorative justice processes would be sitting in the room absent a certain amount of coercion. Without their detection and/or arrest, without the specter of the alternative of a criminal trial, they simply would not cooperate with a process that puts their behavior under public scrutiny. No coercion, no restorative justice (in most cases). (Braithwaite 2002c, p. 34)

Apparently, the same strategy should be used in situations where the offender either refuses to participate in the process because she maintains her innocence regardless of the court’s decision (cf. Braithwaite 1994, p. 205) or cooperates to the degree of participating in the process but she does not reach an agreement with the victim regarding the outcome (cf. Braithwaite 1994, p. 207).14 The travesty of equal justice revisited Thus it actually looks as if Braithwaite has a reasonable strategy in order to avoid the most unacceptable implications of the ideal of consensual justice. The only problem is that this strategy turns out to presuppose The reservation is made because this strategy seems to pose a substantial challenge to restorative justice: As I show below, the only just result of a traditional trial in such a case will be punishment that is proportionate with the crime in the strong retributivist sense of the word; that is, a punishment between both upper and lower limits for this sort of crime. To a restorative justice proponent like Braithwaite, however, it appears that any move upwards towards the upper limit of the law can be justified only if it is the result of an agreement between the parties or if it is a response to a lack of will to cooperate on behalf of the offender. This is the core reasoning behind responsive regulation. However, neither of these situations appears to be relevant here. Or at least they do not have to be, and how do we tell the difference in practice? To maintain one’s innocence can hardly be called lack of will to cooperate unless we rest assured completely in our judgmental infallibility that we can determine when such a claim is honest and when it is not. And the same goes for the offender who does not reach an agreement on an appropriate outcome with her victim – unless of course we assume the unreasonable position that any disagreement is a sign of a lack of will to cooperate on behalf of the offender. As we all know, it takes two to tango, and it is definitely possible to imagine a case where a remorseful offender with her mind set to fully restore values meets a revengeful victim that stubbornly rejects any other outcome than the one that equals the hardest punishment available under law. If disagreement automatically refers the case to traditional criminal court it appears that the vengeful victim de facto gets dictatorial powers to decide the case her way. Arguably, this seems to threaten the foundations of restorative justice. For an extensive discussion of this problem, see Holtermann (2009d).

14

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the reintroduction of the very ingredients he designed restorative justice in order to avoid: event-based consistent justice and strong proportionality between crime and punishment. Braithwaite, in other words, seems to end up in exactly that travesty of equal justice which he set out to avoid. That it comes to this is caused, first of all, by the fact that the entire innovative force of restorative justice lies in the process where the parties meet each other and in the guidelines developed for referring cases back and forth between the established criminal law system and the system of restorative justice. How the traditional legal system should treat cases once they end up on its desk, is, however, a question for which Braithwaite provides no new answers. And it is exactly cases of this sort we are considering here. As Braithwaite correctly noticed the traditional system is first and foremost concerned with consistency. Lawyers want to treat like cases alike. This is how the rule of law works. Modifying Emerson, consistency is the hobgoblin of the little minds of the system. The first step in order to determine criminal guilt in a court of law is always to find out what actually happened, that is, to uncover the material truth of the matter. And then, all parties look “to the side”: they consider retrospectively how the criminal system has judged like cases in the past, and prospectively if this or that decision can serve as a rule for future decisions in like cases. Choosing any other strategy would equal abandoning precedent as a source of law. However, Braithwaite does not just reintroduce the concept of consistent justice. In all those cases ending up in court he must, in addition, accept strong proportionality between crime and punishment, that is, upper and lower limits on punishment. How should we ever defend treating offenders differently when meting out punishment, if the trial has shown that there is no relevant difference with regard to the legal fact; that is, if we are dealing, legally speaking, with like cases? Removing the lower limits on punishment made sense from the perspective of restorative justice, only when the varying attitude of the victim still had a role to play. But in the group of cases considered here the victim no longer plays a part – either because i) the collective wisdom of the parties never showed up; ii) the parties did not come to an agreement; iii) the offender maintained her innocence; or iv) the offender refused to participate in a restorative justice process. Besides the offender the state is the only party to a criminal trial and it simply 78

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makes no sense to grant the judge the same opportunity as the victim in the restorative justice process to forgive every now and then; to let them “get, occasionally, the grace of mercy” (cf. Braithwaite 2003a, p. 391).15 On the contrary, the state and the criminal courts can only justify differential treatment when there is a legal difference between two cases. Of course, Braithwaite can insist that there actually always is such a difference. But then we appear to be back at the claim that two cases are never actually alike, which is why we should start whistling instead of talking. I have already suggested why this is not a tenable position. And, at any rate, this strategy does not go too well with Braithwaite’s own position. First, because his initial argument against the law precisely was not directed against the impossibility but rather on the undesirability of judging like cases alike. Second, because he insists, out of concern for general legal rights, that restorative justice should take place within the overall framework of a rule of law. To avoid the most extreme consequences of the collective stupidity of the parties, they should, as he puts it, be “constrained by limits on punishments, rights, and rules that define what is a crime and what is not” (Braithwaite 2003a, pp. 395, my emphasis). As already mentioned rules are always made beforehand and they describe types or classes of behaviour. Thus, a concept of crime which, like Braithwaite’s, is ultimately founded in rules only makes sense if one acknowledges at least the theoretical possibility of two cases being legally alike. In other words, if Braithwaite is serious that we need safeguards against the many pitfalls of a pure consensual justice, then he will have to admit that he is, to some degree, “attracted to evaluating criminal justice in terms of whether it dispenses more equal justice for equal wrongs” (cf. Braithwaite 2003a, p. 394n325). He will have to acknowledge that the thought of judging like cases alike is not always a travesty of equal justice (cf. Braithwaite 2003a, p. 395). On the contrary, in a viable restorative justice system there is a time and place for eventbased consistent justice and strong proportionality between crime and punishment honouring both upper and lower limits on the harshness of punishment.

In sentencing, the judge can of course take mitigating factors into consideration but first, in so doing she will still be bound by similar cases, i.e. by precedent, and second, this is very different from abandoning lower limits like Braithwaite suggests.

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I have considered one of the central premises in the argument in favour of restorative justice: its law critique. Most proponents of restorative justice are attracted to its informal consensual notion of justice because they remain highly sceptical toward the general idea of handling crime by holding criminals responsible before the law. I have considered two central arguments for this scepticism: i) that it is impossible to treat like cases alike because the law necessarily creates a rigid system which squeezes complex and varied human behaviour into arbitrary and artificial categories; and ii) that regardless of the feasibility of treating like cases alike this project holds no independent value, the crucial part being not the criminal event but the stakeholders’ various perceptions thereof and the eventual balancing of these through a mutual agreement. With regard to the first argument I have shown that it rests on a highly distorted picture of the philosophy behind the traditional system. The alternative to restorative justice is not necessarily a rigid ruleformalism with a concept of crime which “is an artificial construct which throws into one basket a variety of unrelated behaviors and experiences” (Zehr 2005, p. 183). On the contrary, virtually every significant philosopher of law since Aristotle has been fully aware of the tension between the universality of the law and the particularity of the criminal events. The common reaction among these philosophers has been to develop highly sophisticated theories of sources of law, thus reconciling the rule of law with the development of fairly nuanced categories of human behaviour and a reasonable amount of context sensitivity. Presenting the role of the law in the traditional system as if it was utterly ignorant of these sophisticated theories reduces the argument to a straw man fallacy, leaving the proposed dilemma a false one. In the second half of the paper I have considered Braithwaite’s strategy: to flatly deny any attraction of event-based consistent justice because a stakeholder perception-based consensual justice fills all our needs. Though slightly more promising this strategy is not viable either, simply because it does not deliver on its promise. Unrestrained consensual justice is a nightmare of vigilantism and the only credible safeguards against it come from the traditional system, viz. the very same ingredients that Braithwaite strongly rejected as being not in the least attractive: consistent justice and strong proportionality between 80

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crime and punishment; that is punishment between upper and lower limits. It should be emphasized that these considerations do not in themselves amount to a flat rejection of restorative justice. But they do show that in one critical respect restorative justice is not the Egg of Columbus of juristic theory it is often claimed to be. Restorative justice, too, will have to find a safe passage between the Scylla of formalism and the Charybdis of rule-scepticism to use Harts words from the introductory quote. Proponents of restorative justice will probably claim that this is nothing more than what they have been saying all along. While this may be what they have always meant, I am fairly certain, however, that they have never put it quite this way. In the writing on restorative justice I am familiar with, rhetoric on the role of law in criminal justice remains harsh and irreconcilable and I believe I have shown this in the selection of quotes used throughout this paper. This may have been defensible as a rhetorical strategy in the 1970s and -80s when restorative justice was still in its infancy struggling to gain foothold. But today things have changed enormously. As T. Marshall has put it: Restorative Justice, let no one doubt it, is well and truly on the map. I am both amazed and gratified that this idea, after struggling to see the light for over a decade, has finally emerged as a serious issue for all parts of the criminal justice system. (Marshall quoted from Johnstone 2002, p. 16).

Thus time has run out for strategic assertions of an abysmal conflict between restorative justice and the law. Only the truth counts now. And the truth is that restorative justice needs the law; it needs consistent justice and strong proportionality if it is to safeguard us against the obvious pitfalls of a pure consensual notion of justice. This means, first, that restorative justice will have to moderate its anti-legal rhetoric considerably and, second, that it will have to develop clear principled guidelines for handling all the many cases where consensual justice goes astray or where it doesn’t even get off the ground. Only when this is done will we be able to determine whether restorative justice with its strong emphasis on informal procedures is ultimately reconcilable with fundamental guarantee of criminal justice; that is, whether it, better than traditional criminal justice, provides a 81

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safe passage between the Schylla of formalism and the Charybdis of rulescepticism.

Acknowledgments I would like to thank members of the Danish Research Group for Criminal Justice Ethics, Roskilde University and Martin Vinding for extensive and insightful comments on an earlier version of this paper.

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Chapter 4 Caring About “How the World Happens to Be” – Reply to Davis

Oui, mais il faut parier : cela n'est pas volontaire, vous êtes embarqué. Lequel prendrez-vous donc ? Voyons. Puisqu'il faut choisir, voyons ce qui vous intéresse le moins.1 – B. Pascal, Pensées

Abstract: In his encyclopaedic article “Punishment theory’s Golden Half Century: A Survey of Developments from (about) 1957 to 2007” Michael Davis argues that consequentialist theories fail to justify punishment on empirical grounds. In this article I argue that his argument does not succeed and that it rests on misunderstandings as to the idea of crime prevention through punishment. In particular, it overstates both the epistemic certainty of consequences and the size of the preventive effect necessary in order to justify punishment primarily on these grounds. Furthermore, Davis misconstrues crucial empirical insights as “conceptual” truths so as to render them unavailable to consequentialist theories of punishment. I argue that on balance we are more justified in believing that establishing reasonably humane punitive institutions will repay its costs than we are in believing the opposite. Keywords: punishment, deterrence, consequentialism, retributivism, prevention, epistemology

Introduction

In “Punishment Theory’s Golden Half Century”, Michael Davis offers an impressive encyclopaedic overview of developments in the field during “Yes; but you must wager. It is not optional. You are embarked. Which will you choose then? Let us see. Since you must choose, let us see which interests you least.”

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the last half century. Of the several topics that he manages to deal with, I shall focus here only on one, viz. his discussion and criticism of consequentialist theories of punishment. This is an issue where I believe Davis is partly right, and partly wrong. As a piece of intellectual history, I believe he is (roughly) right. Consequentialist theories of punishment have indeed “entered a long and steep decline, beginning with the virtual disappearance of reform theory in the 1970s.” (Davis 2009, p. 74) And I believe they have done so, mainly for the same reasons Davis does, that is, I believe his argument against consequentialist theories of punishment is exemplary of a line of thinking followed by many theorists in the field. As a piece of philosophy, however, I believe Davis is (roughly) wrong. Intellectual fashions can and often do go wrong. And I believe that is what they have done in the area of punishment theory since the 1970s. And they have done so for much the same reasons that I hope to show Davis goes wrong in his argument against consequentialist theories of punishment. Characteristically, Davis’ argument does not follow the age-old strategy of abandoning consequentialism for its (alleged) failure to guarantee the rights of the innocent. On that objection, consequentialist theories of punishment fail primarily as a species of consequentialism generally, i.e. by its (alleged) more general failure to take sufficiently seriously the moral status of individuals. This is the path taken by e.g. Duff (2001), but Davis only mentions it in a footnote: “Utilitarian theories are also famously (but apparently not decisively) vulnerable on moral grounds insofar as crime control is different from justice.” (Davis 2009, p. 84, n24) Insofar as Davis is trying to explain the current decline of consequentialist theories, this somewhat casual treatment of the classical objection is well considered. The objection has been a permanent part of the trench wars between consequentialist and deontological ethical theories since, at least, the days of Kant, and therefore cannot explain the comparatively recent development at issue here (a fact which Davis implicitly recognises by remarking “apparently not decisively”). Instead, Davis’ argument takes the shape of a reductio ad absurdum. He purports to show that even if, for the sake of argument, we accept the consequentialist maxim of action we still would not be justified in punishing crime. Even worse: vis-à-vis the phenomenon of crime consequentialism would simply leave us paralysed. And it would do so, 84

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according to Davis, for epistemological reasons. We simply know too little about the consequences of our actions to be justified in doing anything in the aftermath of crime. But this is absurd. Hence, consequentialism fails as a punishment theory. As I will show in the following, however, this argument is based on a confusion of the epistemological standards properly associated with consequentialism. No doubt we know less about crime and punishment than we could ideally have wished for. But we know enough. We are, as I will show, no doubt more justified in believing that punishing crime in any system we will currently find it relevant to consider, will repay its costs than we are in believing the opposite. And for a consequentialist, that is justification enough. Admittedly, the reach of this conclusion is limited. In particular, it is neutral with regard to the abovementioned more fundamental trench war. It only shows that Davis’ argument fails qua ad absurdum as it rests, ultimately, on premises that there is no reason for proper consequentialists to accept. Therefore, if I am right, we are back, also in punishment theory, at the age-old (frustratingly futile?) standoff between ethical theories. An issue I shall return to only shortly in the conclusion. Though obviously occasioned by Davis’ article I will not follow his exposition slavishly, but structure my argument independently in order to establish my conclusion. I proceed as follows: i) I discuss what I believe is a confusion in the epistemological standards presupposed by Davis; ii) I explain why it is reasonable to expect that punishment has a preventive effect; iii) I argue, against Davis, that this insight is an empirical rather than a conceptual truth; iv) I argue that we should reasonably expect this beneficial effect of punishment to outweigh the costs of producing it; and finally, v) I argue that it is acceptable for consequentialist theories to leave some level of arbitrariness as to which particular punitive system to choose. In the conclusion, I sum up the results of my findings and put them into a wider perspective To punish or not to punish, tertium non datur – getting clear on the epistemological standards

Davis’ argument against consequentialist theories centres on the alleged lack of empirical evidence in the social sciences in support of the claim that punishment can be justified primarily on preventive grounds. Thus, 85

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he cites the absence of such evidence as the main reason for the decline of consequentialist theories of punishment since the 1970s: By the 1970s, it was clear that the social sciences could not then, or in the foreseeable future, give empirical preventive theories much empirical support. The social sciences could not, that is, say what effect, if any, statutory penalties, rehabilitation, exemplary punishment, or even incapacitation would have on the crime rate (much less whether those effects would repay the cost). (Davis 2009, p. 84) This claim can reasonably be conceded – if only for sake of argument and pending further specification. The factors influencing criminal behaviour arguably do seem abundant and the number of possible combinations thereof indefinite. In addition we have the apparently insurmountable practical and ethical difficulties of testing hypotheses on these matters satisfactorily. The central question is, however, what inferences are justified in response to this fact. Davis concludes that we should look for different ways to justify punishment altogether: That we feel justified in punishing even though the social sciences give us little help with explaining why suggests that the justification is not empirical (or, rather, not empirically preventive). (2009, p. 85) Instead, Davis believes that justifications of punishment should rely mainly on conceptual relations. As will become clear, however, there are good reasons to resist this discouraging conclusion. The character of this objection is basically epistemological. In effect, Davis assumes the sceptical stance specifically with regard to beliefs as to the possibility of deterring potential offenders through the use of punishment. The available scientific evidence, he claims, simply underdetermines our beliefs on this issue. As such, the objection renders topical traditional epistemological discussions that are not always dealt with satisfactorily in punishment theory. In particular, it raises the question whether scientific certainty of the consequences of our actions is always a suitable criterion for evaluating the claims of consequentialist theories. 86

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First, we should notice carefully what is or rather what is not warranted by the observation of this scientific underdetermination. Prominently, it does not warrant the positive claim that punishment is not, on balance, a cost beneficial way of dealing with crime. That is, we are not justified in inferring from these epistemological difficulties that the costs of punishing criminals will, on balance, lead to worse consequences than if we abolish punishment entirely.2 In this sense, the epistemological position with regard to our beliefs on crime prevention is analogue to the sceptical position with regard to our beliefs in general: Strictly, skepticism is a matter of doubt rather than of denial. The skeptic is strictly not one who denies the validity of certain claims, but one who questions, if only initially and for methodological reasons, the adequacy of our grounds for holding them. (Strawson 1987, p. 2) In epistemological parlour, then, what is justified is only to withhold judgement on the matter in question. The epistemological difficulties warrant only that we refrain from forming beliefs on the matter of crime prevention through punishment. However, as indicated by Strawson, thus withholding our judgement is an artificial epistemological construct. Human beings are not only belief-forming creatures. We continuously act and, notably, interact with the surrounding world. I can, if I try really hard using Cartesian methodological doubt, withhold judgement as to whether breathing or withholding my breath will be more beneficial for my general wellbeing. But I cannot not do either. I will inevitably either breathe or withhold my breath, and my choice of path will, equally inevitably, have some highly tangible consequences for my well-being.

Davis explicitly concedes this point (cf. also below). Admittedly, criticism of preventive theories of punishment has occasionally been launched under the motto “nothing works” (cf. Lipton, Martinson, & Wilks 1975). On this interpretation, the criticism does form a positive proposition (though formulated in the negative) as to the likely consequences of punishment, i.e. none. As indicated by the title (Effectiveness of correctional treatment : a survey of treatment evaluation studies), however, this conclusion is primarily aimed at the perhaps overly ambitious rehabilitation programs of the 1960’s and 70’s. Interpreted as a general claim that punishment does not, all else equal, tend to reduce crime, most commentators agree that the evidence does not warrant this conclusion, cf. below. 2

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In this sense, withholding judgement is an abstraction; an epistemological luxury we cannot afford in everyday life. Being physical creatures our beliefs will inevitably convert into action at some point. This illustrates a more general point already acknowledged by Descartes on the interim character of sceptical doubts: In the meantime, I know that no danger or error will result from my plan, and that I cannot possibly go too far in my distrustful attitude. This is because the task now in hand does not involve action but merely the acquisition of knowledge. (Descartes 1996, pp. 15, my emphasis)3 But as Descartes implicitly recognises he cannot remain thus inactive forever. Soon the six days of meditation will be over, and outside this protected context he surely can go too far in his distrustful attitude. Short of indubitable knowledge in a world of events relentlessly unfolding he will therefore have to act on those beliefs that he finds, on balance, are the most justified. And the same point holds good in punishment theory – perhaps even more so than in theoretical philosophy since, here, the task in hand patently does involve action and not (only) the acquisition of knowledge. Regardless of the epistemological difficulties in ascertaining the exact effects of punishment on crime, we will inevitably have to either establish punitive institutions or refrain from so doing. And this is the fundamental dilemma that I believe Davis fails to take seriously. Throughout his argument he presupposes as a matter of course an absolute, “scientific” level of doubt as the criterion, which beliefs regarding crime prevention must pass in order to be empirically justified. But in doing so, his argument arguably fails qua ad absurdum, i.e. as an argument showing that consequentialist theories fail even on their own terms. For there is simply no reason why consequentialists should accept such a high, absolute standard of justified belief. Scientific Ancient sceptics make an analogue point. Thus, e.g. Sextus Empiricus rejects the claim that his epistemological views should lead to a life of inaction. Epistemological limitations only influence the modus of our so-called knowledge claims. Thus, Pyrrhonian scepticism, he claims, is perfectly consistent with having beliefs about appearances as long as we do not dogmatise: “Adhering, then, to appearances we live in accordance with the normal rules of life, undogmatically, seeing that we cannot remain wholly inactive.” (Empiricus 1933)

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certainty (and even more so, omniscience) as to the consequences of our actions in all areas of life is no doubt preferable and, when available, should be applied to the full. But in and of itself, the occasional absence of such certainty only serves to remind us of the painful human condition of being fallible creatures equipped with a conscience. What consequentialists characteristically do in such cases is to lower the threshold of reasonable doubt. Forced to act in the absence of knowledge beyond some absolute measure of doubt, the central issue becomes one of relative or comparative certainty between mutually exclusive beliefs. And in the case of punishment theory this means asking whether, on balance, we are more justified in believing that punishing crime will have better consequences than we are in believing the opposite. Which of the two makes up the more reasonable default presumption? In other words, we have to determine which view holds the burden of proof.4 On the whole, there is absolutely nothing odious in thus lowering the standard of doubt and proceed on less than complete or “scientific” certainty if we have no alternative. We do it constantly in countless areas of life, e.g., perhaps most notoriously, in civil law, where the burden of proof is met if a proposition has been proven to be more probable than its negation (cf. e.g. Spencer 2002, p. 600f). Surely we do not for that reason consider such judgements unjustified, nor do we attempt to escape the epistemological problems by taking Davis’ route and “pretend” that the judgements really express conceptual truths rather than somewhat doubtful empirical matters (Davis 2009, p. 85, cf. below). Indeed, insisting that empirical ethical theories should in general be allowed to act only on scientifically justified beliefs would plainly disqualify such theories right from the outset. Science is on all accounts a fairly new invention in human history, and even today it covers only a fraction of all our beliefs. Thus, committing consequentialist theories to scientific certainty would plainly render impossible morally justified action beyond the tiny area cleared by science. But this would obviously be absurd. Like any minimally plausible ethical theory, consequentialism

It is of course possible that Davis believes his epistemological objections hold good even on this milder criterion of comparative certainty. The rest of this article argues, however, that any such belief is mistaken. 4

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must plainly take into account the epistemological character and limitations of human beings. In general, pretending that the absence of scientific (and sometimes even Cartesian) certainty as to the consequences of our actions should leave us paralysed in a great many cases brings to mind a line of criticism against utilitarianism that John Stuart Mill emphatically warned against in a passage that deserves to be quoted in some length: It is truly a whimsical supposition that, if mankind were agreed in considering utility to be the test of morality, they would remain without any agreement as to what is useful, and would take no measures for having their notions on the subject taught to the young, and enforced by law and opinion. There is no difficulty in proving any ethical standard whatever to work ill, if we suppose universal idiocy to be conjoined with it; but on any hypothesis short of that, mankind must by this time have acquired positive beliefs as to the effects of some actions on their happiness; and the beliefs which have thus come down are the rules of morality for the multitude, and for the philosopher until he has succeeded in finding better. (Mill 1987 [1871], p. 296)5

This, of course, is not to say that we should simply rest assured in bold assertions. We can and should stand ready to articulate which factors support our beliefs and render them more probable than their negation (and, indeed, that is what I intend to do on the particular topic of crime and punishment in the rest of this article). But in doing so, we should always pay good heed to the field under scrutiny. As Aristotle famously remarked: … it is the mark of an educated man to look for precision in each class of things just so far as the nature of the subject admits; it is evidently equally foolish to accept probable reasoning from a mathematician and to demand from a rhetorician scientific proofs. (Aristotle 1954, p. 1094b, 23-27)

Charles S. Peirce makes a similar albeit more general criticism against the entire idea of building philosophy on a Cartesian concept of methodological doubt: “Let us not pretend to doubt in philosophy what we do not doubt in our hearts.” (1868, p. 140) 5

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It could perhaps be objected that this would all be very well, were we not here discussing crime and punishment. In particular, the example of civil law could be claimed to be badly chosen precisely because criminal law traditionally works with a wholly different and much stronger burden of proof, i.e., that of proving guilt beyond reasonable doubt (cf. Spencer 2002, p. 600f). However, the contradiction dissolves when we take a closer look. When subjected to epistemological limitations, it is, other things equal, reasonable to act in accordance with a cautionary principle, i.e., to err on the side of caution. This principle presupposes, however, that one such side can be identified. In the individual criminal trial most agree that this is easily done. The nightmare of a single wrongful conviction by far outweighs the presumably infinitesimal loss in crime preventive effects and also even the grievances of victims and relatives of a single wrongful acquittal. Hence, the famous Blackstone’s formulation: “[I]t is better that ten guilty persons escape than that one innocent suffer.” (Blackstone 1860, pp. Book 4, *358) In the more general discussion pro and con having a punitive institution at all, things are not that simple.6 Other things equal, it is not immediately clear whether it is better to live in a society where a lot of crime is committed by criminals that could have been deterred by a lawful threat of punishment, than it is to live in a society where a lot of fundamentally unjustified (i.e. not crime preventive) but lawful (i.e. disposed in accordance with the principle of legality and under observance of proper procedural safeguards) punishment is inflicted.7 Thus, it seems that when it comes to the fundamental question of justifying the punitive institution as such, we have no alternative to the weaker standard of proof used also in civil law. Which of course is not to say that we cannot, In fact, this distinction between the two areas carrying different burdens of proofs repeats Rawls’ distinction between questions about the punitive practices and about “the application of particular rules to particular cases” (Rawls 1955, p. 5). But contrary to Rawls it does not presuppose that consequentialist considerations should be restricted to the first of these questions. As mentioned, stricter burdens of proof can be justified on consequentialist grounds when a “side of caution” can be identified. 7 This could perhaps be challenged on a version of the doctrine of double effect according to which the unjustified punishments would be intended and hence worse than the excess crimes that would only be foreseen. This, however, is a retributivist rationale, and therefore inapplicable here as the criticism presently under consideration claims that the preventivist line of argument fails even on its own terms. 6

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and indeed should not, hold on to the traditional, stronger standard of reasonable doubt when determining criminal guilt in the particular case in court. Punishment does prevent crime

Anthony Ellis has made an analogue point in a recent article (2009), and he argues, in my view convincingly, that opponents of punishment must bear the burden of proof against proponents. The main reason is simply that human beings are by and large instrumentally rational actors. That is, their behaviour can be understood and explained all predominantly as attempts to achieve goals that they perceive to be desirable or, conversely, to avoid states of affairs that they consider undesirable.8 Absent this hypothesis we would generally be banned from using causa finalis in the explanation of human behaviour, in which case nothing we now know as psychology would be possible. It is so to speak the possibility condition of psychology.9 Granting this presumption of instrumental rationality, and adding that punishment induces suffering that human beings, other things being equal, strive to avoid10 it seems prima facie reasonable that people will generally be deterred, at least to some degree, from engaging in behaviour that is criminalised if they are (aware that they are) threatened with punishment for so doing. This would indeed help explain conspicuous phenomena like the mayhem that followed the police strike in Boston in 1919 (cf. Russell 2005) or the dramatic increase in crime level in Denmark during World War II following immediately upon the detention of the entire Danish police force by the German Wehrmacht (cf. Trolle 1945). To the polemically minded any such observations are, of course, vulnerable to

Which of course is not to say that people always know what is good for them, nor that they cannot have mutually exclusive desires. It is not even to say that people cannot want something to happen that they consider bad in itself. But when they do, it is usually because they consider it instrumentally good, i.e. expedient. 9 In Ellis’ words: “Without such a presumption, it would be impossible to understand human affairs at all.” (2009) 10 Of course there are exceptions to this general rule. Dostoyevsky’s portrait of the painter Mikolai in Crime and Punishment provides one famous example of an inversion of traditional human sensibilities. More generally, such inversion is found e.g. in the phenomenon of voluntary penance and in gang members considering prison convictions marks of honour.

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post hoc, ergo propter hoc-accusations, but it does seem to be a reasonable explanation that the sudden disappearance of a credible threat in both cases of punishment had something to do with it. Several criminological studies have further corroborated the general claim that punishment deters. To mention just one prominent meta-study, criminologist Daniel S. Nagin concludes thus: “[T]he accumulated evidence on deterrence leads me to conclude that the criminal justice system exerts a substantial deterrent effect.” (2000, p. 359)11 In other words, in the absence of indubitable knowledge the more reasonable claim surely seems to be that punishment exerts a deterrent effect. An empirical and/or conceptual truth?

In fact, this much is even conceded by Davis. But he labels, crucially, this manifest preventive effect of punishment a conceptual consequence: “We may be sure (for conceptual reasons) that the institution of punishment tends (all else equal) to reduce crime.” (Davis 2009, p. 85, emphasis in parenthesis added) Apparently, Davis labels the crime preventive effects of punishment thus for two reasons. First, he does so in order to render this obvious, and for punishment theories obviously important, truth available to conceptual theories so as not to disqualify them out of hand. (Whether this move is ultimately tenable, is in fact somewhat doubtful, cf. below) Secondly, however, it appears as if he does so also, conversely, in order to render that same truth unavailable to empirical theories as part of their justification for punishment – or, at least, render it available only qua conceptual so that, if ultimately successful, these theories would in fact already be conceptual at root. The passage serves this purpose if it is read negatively as implying that because conceptual this truth cannot also be empirical. This is arguably the implicature of Davis thus interjecting “for conceptual reasons” in this context. And this reading is further supported by the fact that Davis’ remark occurs as part of his argument against empirical theories of punishment. If he really meant that the crime preventive effects of punishment is also an empirical truth he would instead, at that point, have made a crucial concession to the general empirical attempts to justify punishment.

11

Cf. also e.g. Walker (1991, pp. 13-20) and Wilson (1983, p. ch. 7).

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However, it is hard to see what considerations could support such a narrow reading of “empirical”. Davis’ own remarks do not leave us much to go on, as he is mainly preoccupied with elaborating the concept of “conceptual” so as to serve the first purpose above. At one point, he describes empirical theories as being “concerned with […] events consequent on other events merely as a matter of fact (where “fact” includes contingent scientific laws).” (Davis 2009, p. 81) But this description seems to fit perfectly with the claim that “the institution of punishment tends (all else equal) to reduce crime.” The only passage that, as far as I can see, could possibly support an exclusively conceptual reading of the statement on the crime preventive effects of punishment is the following: Empirical theories depend crucially on statements that may be false in worlds very much like this one; conceptual theories do not. The statements on which conceptual theories depend are either logical truths strictly so called or (more often) statements that could only be [false]12 in worlds radically different from this one (for example, worlds in which people could not do one another serious harm). (Davis 2009, p. 82) Here, the distinction is plainly modal. And the passage could be read so as to render exclusively conceptual all propositions that are false only in very distant possible worlds. Hence, the statement that punishment tends, all else equal, to reduce crime is conceptual and not empirical because we would plainly have to go to such distant worlds in order for it to be false. Now, it is of course possible to define words in all sorts of ways for various purposes. But it would appear that this definition of the distinction conceptual/empirical13 is unfortunate – for three reasons. First, this account fails to capture the sense most people would intuitively ascribe to words like “conceptual” and “empirical”. Countless empirical truths traditionally so-called are false only in very distant worlds. As already mentioned, I can imagine a world in which breathing The original text reads true here, but Davis has confirmed in personal correspondence that this is a mistake. 13 That is, the only definition available on which empirical theories would be barred from using the insight that punishment tends, all else equal, to reduce crime, as part of their justification of punishment

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is generally not good for my health. I can also imagine a world entirely void of gravity. Of course, ascertaining proximity of possible worlds is notoriously tricky business, but I believe Davis would agree that these worlds are not very close to the actual world. And he would certainly agree that they are not closer than the one we would have to go to in order for punishment not to tend, all else equal, to reduce crime. Hence, this narrow way of defining the empirical/conceptual dichotomy is artificial – to say the least. Second, this artificiality is even betrayed by the difficulty found in Davis’ own writing with which the central claim regarding the crime preventive capacity of punishment is expressed as an unempirical truth held only “for conceptual reasons”. Thus, as we have seen, Davis writes that the “institution of punishment tends (all else equal) to reduce crime” (Davis 2009, p. 85, emphasis in parenthesis added). But concepts do not tend, all else equal to do anything. If consequences are conceptual at all in the way Davis suggests they are, it is because we simultaneously do one thing by the very act of doing something else (cf. Davis 2009, p. 81). But in the eternal realm of concepts, “tendencies” and “all else equal”provisos simply have no natural place. On the contrary, these are patently empirical qualifications. They make sense only in the context which Davis first described as quintessentially empirical, i.e. where we “are concerned with […] events consequent on other events merely as a matter of fact (where “fact” includes contingent scientific laws).” (Davis 2009, p. 81) Third, and perhaps most importantly, it would appear that in thus narrowing the term empirical, Davis has failed to capture any essential feature of the theoretical landscape of punishment theory. Of course, nobody would subscribe to empirical theories if by doing so they would be barred from relying on truths that “could be false only in worlds radically different from ours”. Therefore, it would not have taken any alleged “failure of the social sciences” to occasion the fall of empirical theories. For definitional reasons alone, nobody would have joined them in the first place. Thus, I conclude, so far, that in spite of Davis’ misleading remarks to the opposite, the truth that punishment as an institution tends, all else equal, to reduce crime is very much available to empirical theories as part of their justification of punishment. What is doubtful, if anything, is only whether it is really meaningful to call it “conceptual” – and, hence,

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whether this crucial truth is ultimately available to conceptual theories properly so-called. Exaggerated doubts and “supposed universal idiocy”

Regardless of it being rightly labelled a “conceptual” or an “empirical” truth, Davis was at least prepared to admit that punishment has a crime preventive effect. He denies, however, the second step necessary in order to justify punishment generally on empirical grounds; i.e. he denies that we should have any knowledge as to whether the manifest benefits of thus reducing crime actually outweigh the costs of establishing them: Neither Ellis nor any other empirical preventivist has been able to answer that question [whether the extent of the deterrence justifies the costs involved]. None knows whether punishment does deter enough to be justified by its deterrent effect. (Davis 2009, p. 86) Again, this is surely true if by “know” we mean true belief established beyond all scientific doubt. Since the claim is basically counterfactual we would ideally have to compare total societies that use punishment with (like) societies that do not in order to establish it properly. However, all known human cultures use some kind of sanctions for rule breaking14, and chances are rather limited that social scientists will be given an opportunity to conduct a realistic large-scale experiment in which a

14 In Human Universals anthropologist Donald E. Brown mentions sanctions as a human universal, that is, a trait found in all known human societies. Thus, in a description of a fictitious Universal People (UP) (as an answer to the question: “What do all people, all societies, all cultures, and all languages have in common”) he writes as follows on the use of sanctions: “The UP have law, at least in the sense of rules of membership in perpetual social units and in the sense of rights and obligations attached to persons or other statuses. Among the UP’s laws are those that proscribe murder – unjustified taking of human life (though they may justify taking life in some contexts). They have sanctions for infractions, and these sanctions include the removal of offenders from the social unit – whether by expulsion, incarceration, ostracism, or execution. They punish (or otherwise censure or condemn) certain acts that threaten the group or are alleged to do so.” (Brown 1991, p. 138)

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society does not do that any time soon. Hence, the comparison admittedly remains, in some sense, speculative.15 However, as already mentioned we are not here (necessarily) trying to establish scientific beliefs beyond some absolute standard. We are trying to determine which claim should bear the burden of proof in view of our epistemic limitations. And I must admit that I find it hard to believe that Davis and congenial critics honestly find themselves in serious doubts on this issue. Of course we cannot rule out entirely the possibility that abandoning punishment completely will lead to greater human happiness, than what is achieved by establishing punitive institutions roughly resembling those we would currently find it relevant to consider. However, the very absence of just one example throughout human history of a society successfully abandoning punishment (cf. Brown 1991, p. 138) makes it rather hard to take that possibility seriously. On the contrary, inference to the best explanation of this fact arguably does seem to be that such cultures simply are not very viable.16 The actual uncontroversiality of this assumption is further supported by the fact that it is rather hard to find serious abolitionists in punishment theory (and not just proponents of drastic reductions in the use of punishment). Even advocates of so-called restorative justice17 Although game theorists have done extensive work explicating the role of sanctions and the consequences of their absence in relation to the achievement of socially desirable ends. Here mathematical modelling (cf. e.g. Axelrod 2006) as well as experimental research (cf. e.g. Camerer 2003) seems to suggest that the presence of informal or formal sanctions is necessary for the kind of cooperative institutions fundamental to social organization to be viable. Davis appears, however, to dismiss any such evidence, and I shall for the sake of argument not build my case on it. (I am grateful to Pelle Guldborg Hansen for bringing this to my attention.) 16 This universal agreement indicates that perhaps political philosophers since Hobbes have not been entirely wrong in their depiction of the state of nature as an intolerable and ultimately untenable situation. One reasonable explanation for the universal use of sanctions for wrongdoing could easily be that the absence of punishment implies the absence of a local monopoly of violence that in turn implies the breakdown of social institutions and norms and finally a descent into a state of nature. To illustrate, the abovementioned detention of the Danish police force during WWII was immediately countered by the creation of municipal corpses of watchmen that in spite of limited means and powers managed to take the edge of the exploding crime (Christensen 2001). 17 Restorative justice ordinarily refers to a theory of criminal justice that emphasises repairing the harm caused by crime rather than administering “hard treatment” on

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who are often associated with abolitionism agree that restorative justice processes must take place, as one prominent advocate puts it, “in the shadow of the axe” (Braithwaite 2002c, p. 36). Anything else, they admit, would be unrealistically utopian. Perhaps Davis and likeminded critics simply exaggerate their doubts methodologically in order to establish a critical point. If so I find the approach misguided. As argued above, it is generally hard to see why theories that justify punishment on empirical grounds should be denied access to such highly general but perfectly reasonable beliefs simply for want of them being “scientific” – whatever that means. In my view, this in fact instantiates precisely the unjustifiable conjoining of consequentialism with “universal idiocy” that Mill emphatically warned against. And short of pursuing that fruitless strategy, I simply see no serious reasons for doubting that the beneficial effects of punishment in any society we find it relevant to consider outweigh the costs of establishing it. A different angle – Buridan’s Ass revisited

The underdetermination objection can, however, be given a slightly different interpretation. In the continuation of the earlier quoted passage, Davis specifies the reason why he believes that the social sciences by the 1970’s could not give preventive empirical theories much support: The social sciences could not […] say what effect, if any, statutory penalties, rehabilitation, exemplary punishment, or even incapacitation would have on the crime rate […]. If even relatively crude tuning of penalties to empirical consequences is in practice impossible, empirical preventive theories cannot justify punishment as an institution, much less choosing any institution of punishment over others, or choosing one punishment over another, except in some counterfactual world in which we would know much more than we do know here. A theory of punishment should be more practical than that. (Davis 2009, p. 84, my emphasis) the offender, and that couples this general aim with a heavy presumption in favour of reaching it through informal deliberative stakeholder processes (i.e. victimoffender mediation, conferencing circles). For a discussion, see e.g. Holtermann (2009d). See also Davis (2009, p. 86).

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Basically, this portraits preventive theory as falling pray to the practical fallacy of Buridan’s Ass which dies from starvation between two equally attractive heaps of hay because it cannot find a decisive reason for choosing one over the other. On this interpretation, then, even if we have conceded that, on balance, we are better off punishing, we would still wind up not punishing if we justify punishment solely on empirical grounds – simply because we would be incapable of choosing between several possible institutions of punishment that look equally attractive from our epistemologically limited perspective. Two things can be said in reply: first, this objection arguably repeats the overestimation of the epistemological difficulties at play. Thus, we are not completely ignorant as to the fundamental punitive institutions at our disposal. History and our general knowledge of the sensibilities of the human psyche manifestly root out some of the more extreme possibilities. For example, sanctioning serious wrongdoing by some kind of social exclusion presents itself as a more natural choice than, e.g., do tickling.18 And social science arguably narrows the options even further. What the evidence ultimately underdetermines then is only what Nagin describes as largely incremental policy questions: “comparatively small changes grafted unto the status quo system of enforcement and penalties.” (2000, p. 366) Properly described then the dilemma is actually reasonably manageable: While it is my view that the evidence points to the entire enterprise having a substantial impact, predicting the timing, duration, and magnitude of the impact of incremental adjustments in enforcement and penalties remains largely beyond our reach. (Nagin 2000, p. 366)19 In the systematisation suggested by Davis this amounts to preventive theory being able to answer satisfactorily at least the first two questions (i.e. the philosophical and the political) while being less outspoken,

In fact, Brown recounts that in all known human cultures the use of sanctions “include[s] removal of offenders from the social unit – whether by expulsion, incarceration, ostracism, or execution” (1991, p. 138) 19 Nagin’s conclusion is also confirmed in von Hirsch et al.’s meta-study of criminal deterrence (1999, p. 47).

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perhaps, with regard to the remaining four (i.e. the legislative, the eligibility, the sentencing and the administrative question)(2009, p. 77). Davis is not entirely clear as to whether he ultimately finds such limited reach acceptable or not. In the above quotation he claimed that a “theory of punishment should be more practical than that.” (Davis 2009, p. 84) In a different passage, however, he writes that: What seems to worry most of those whom punishment worries at all is how punishment coheres with morality. […] A theory of punishment that merely showed that punishment (perhaps somewhat revised) is morally permissible in (something like) existing conditions would resolve that worry. While some people, perhaps most, would also like guidance concerning how to exercise the right to punish once justified, that guidance seems to answer (partially or completely) questions 2–6 rather than the first question. The deep question, the philosophical, has been answered just by showing that punishment is morally permissible. A more demanding answer is unnecessary. (Davis 2009, pp. 79-80) I lean towards this latter evaluation, and I do so for reasons that lead to the second reply to the objection presently under consideration. For critics would do well to remember that Buridan’s Ass is indeed a satirical figure. It takes a fairly (pardon the expression) dumb ass to be paralysed by the prospect of two similarly looking heaps of hay. Analogously, even though, as Davis notes, a theory of punishment should indeed be practical, it is surely acceptable for it to leave some level of arbitrariness in choosing one particular punitive system over others. On the whole, punishment theory is, in this respect, in no different position from numerous other areas of human life where we try to balance costs and benefits in large-scale complex systems in less than perfect epistemic conditions. Thus (to mention one prosaic but illustrative example), in the case of industrial production of chemical substances nobody knows precisely how best to balance the risks to human health and environment with considerations of e.g. innovative capability, industry competitiveness and human progress. Even after ruling out some obviously implausible extremes our limited knowledge of the countless factors involved and their incalculable future ramifications surely leaves us with a large number of equally attractive specific solutions as to the balancing of these costs. However, neither in 100

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this area (nor in countless areas like it) do we habitually suffer the unfortunate fate of Buridan’s Ass.20 On the contrary, we choose one particular balance over all the many others available. For example, in 2006 the EU passed the comprehensive so-called REACH-regulation that deals with the Registration, Evaluation, Authorisation and Restriction of Chemical substances. REACH requires, for instance, that [t]he supplier [of a substance] shall provide the recipient at his request with a safety data sheet […] where a preparation […] contains in an individual concentration ≥ 1% by weight for nongaseous preparations and ≥ 0,2 % by volume for gaseous preparations at least one substance posing human health and environmental hazards… (REACH 2006, p. 108) Empirical considerations clearly did not dictate the choice of this particular regulation. But it would plainly be absurd to claim, for that reason, that the fundamental justification for this regulation cannot be empirical but must be conceptual to use Davis’ terminology. That would equal labelling conceptual the decision of any creature wise enough to escape the sorry fate of Buridan’s Ass.21 We should have no reason to view the matter differently in the case of crime and punishment. Neither in this area does a certain level of arbitrariness on grounds of epistemic uncertainty leave us paralysed. All we need in that case is what Davis calls a “tie-breaking procedure” (Davis 2009, p. 80, n. 14) And, as he correctly remarks, it is surely acceptable for a theory of punishment to have recourse to such a Or hardly ever. But when we do, it is usually not due to our epistemological limitations but, rather, to the lack of political courage or to the political process reaching a deadlock. 21 Other examples abound of such highly detailed, but ultimately arbitrary regulations, which can nevertheless only be justified, fundamentally, on empirical grounds. Consider, for instance, the so-called Eurocode regulation: “a set of common standards containing the European calculation methods to assess the mechanical resistance of structures or parts thereof” (http://ec.europa.eu/enterprise/construction/internal/essreq/eurocodes/eurointr o_en.htm). Surely, the only available justification of such regulation is empirical rather than conceptual. (This, of course, is not to say that there is no morally relevant difference between dealing with crime and punishment and e.g. chemicals and building construction. It is only to say, that any difference there might be is not principled epistemological.)

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procedure if the fundamental justificatory procedure deadlocks: “The justification of a tie-breaking procedure is (a) that some decision is better than no decision and (b) the procedure is convenient without sacrificing anything of significance.” (Davis 2009, p. 80, n. 14) For these reasons, I wholly agree with Ellis that: no more can be required than that it [a political community] make a reasonable, good-faith estimate of the balance [where the costs of punishment are proportional to its benefits], and try to stay within it. […] So long as a community does this, it will be justified in using punishment. (Ellis 2009) Once the manifest exaggerations have been weeded out, then, our admittedly less than perfect knowledge as to the exact consequences of punishing crime simply does not amount to an argument against justifying punishment on empirical grounds. If one is basically sympathetic to the empirical outlook established empirical knowledge undoubtedly justifies punishment roughly within the framework provided by most modern rules of law – which of course still leaves ample room for such incremental adjustments which I, following Nagin, would label almost all current policy questions. Conclusion – and beyond

I believe that I have shown here that Davis’ reductio ad absurdum fails. And it does so primarily because it wrongly presupposes an absolute scientific level of epistemic doubt. Once a proper consequentialist epistemic criterion based on comparative certainty has been settled, we see that we are sufficiently justified in believing that establishing reasonably humane punitive institutions will repay its costs. Therefore, if one is basically sympathetic to consequentialism, it appears that punishment is fundamentally justified. Admittedly, and to repeat, this conclusion has a limited reach. In particular, it is neutral with regard to the classical dispute over the alleged failure of consequentialism to guarantee the rights of the innocent and, more generally, the moral status of individuals. On these issues, my argument has a bearing only in relation to Davis’ (and congenial critics’) attempt to “take the fighting into the enemy camp”.

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I believe, however, that the discussion has some additional illuminating perspectives. Davis’ is a status article. He takes stock of the last half century in punishment theory, and in doing so he simultaneously sets a research agenda for the decades to come. Properly appreciating the objections presented here could hopefully help challenge the narrative suggested by Davis and redirect the field of punishment theory in a more fruitful direction. In particular, I believe the above line of argument can help curb the perceived need among remaining consequentialists in the field to reorient fundamentally our endeavours to do good when it comes to crime and punishment. Failure is arguably a function of ambition. And proponents of reform theory up to the 1970s, it seems, were indeed ambitious as to what could be achieved in this area. But they were also overly ambitious. However regrettable, crime is probably here to stay – in some or other fairly large amount. Properly appreciating this fact should first of all open our eyes to what is actually already being achieved with regard to crime prevention in the existing punitive systems – however much in need of reform. And second, it should pave the way for a sounder spirit of social engineering towards what can in fact be done in terms of incremental reductions in crime and in terms of meliorating its effects on those immediately involved as well as on society at large. This can be exemplified with regard to the earlier mentioned movement in favour of restorative justice which Davis treats rather dismissively. As a theoretical movement, restorative justice is primarily proposed by consequentialists – and by practitioners rather than by philosophers. And there is a marked tendency for these proponents to assign to restorative justice processes the ungrateful role of repository for all their previously disappointed expectations. Thus, it is cheerfully propagated almost as the new, one-size-fits-all solution to the problem of crime. Proponents describe restorative justice as a new paradigm in criminal justice with all the Kuhnian associations of incommensurability and irreversible paradigm change attached to that term (cf. Zehr 2005). And butterfly stories of almost miraculous healing following restorative justice processes constitute a constant ingredient in arguments in favour of it (cf. e.g. Braithwaite 2002c; Consedine 1999; Zehr 2005). But in this enthusiastic mood lies a danger of repeating the mistakes of the past. Restorative justice undoubtedly carries some promise. But, as critics have increasingly noted, despite the elevated rhetoric there 103

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remains tangible limits and even some dangers associated with it (cf. e.g. Acorn 2004; Daly 2006; Holtermann 2009c). Properly understood, restorative justice can, at best, play only a supplementary and ultimately parasitic role in the traditional criminal justice system. It might very well do some good at the margins of the system, e.g. in the juvenile justice system and as an alternative to suspended sentences. And perhaps even a bit further than that. But the new and final solution to the problem of crime and punishment it is not. If one is on the lookout for the next Egg of Columbus of criminal justice ethics, this sobering recognition is no doubt terribly disappointing and therefore ultimately fraught with new radical reorientations in due time. And in this lies a risk of throwing out the baby with the bathwater. If, on the other hand, we rest assured in the fundamental achievements of the punitive system and adjust, instead, our ambition to more modest, incremental improvements, chances are that genuinely valuable insights associated with the concept of restorative justice will be properly appreciated and incorporated in the system in a sustainable fashion. Such perspectives are of course of interest only to those who already share the consequentialist outlook. But to end this article on a more confessional note, I will pay a short visit, all the same, to the more general ethical dispute between consequentialism and its rights based counterparts. Because in spite of my objections to Davis’ central argument, I admittedly found one particular aspect of his account of conceptual versus empirical theories very illuminative and deeply agreeable. And that was his remarks on conceptual theories being concerned, fundamentally, with instantaneous conceptual relations, while consequentialist theories are concerned “with events consequent on other events merely as a matter of fact (where ‘fact’ includes contingent scientific laws). The argument for a consequentialist theory must depend in part on how the world happens to be.” (Davis 2009, p. 81) I am persuaded that this definition expresses an important distinction and that it captures an essential feature of the actual landscape of philosophical positions. At the same time, it delivers the explanation why, at the end of the day, I count myself a consequentialist, and, conversely, why I never seize to wonder what makes so many philosophers opt for the conceptualist camp. For what I ultimately find 104

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disagreeable and perhaps even dishonest about conceptual ethical theories is the promise they deliver, if only in principle, of having the ethical score settled on the spot immediately upon completion of the conceptual calculus. It is this prospect of instantaneous absolution or condemnation by way of conceptual implication that in my experience rather grates with common moral life. As a moral person, I (and I see no sign that I am exceptional in this regard) constantly find myself preoccupied not primarily with eternal conceptual relations but with “events consequent on other events merely as a matter of fact”. And I really see no reason for the disdainful undertone that so often accompanies these words in the writings of conceptualists like Davis. Looking to Abu Ghraib, to mention but one prominent recent example, I see primarily not a conceptual failure but an (infinitely woeful) event consequent on another event merely as a matter of fact – to be precise, an event following the Bush administration’s (even more woeful) decision not to abide by the Geneva Convention in the War Against Terror. Abu Ghraib surely was not conceptually implied as a consequence of that decision. It was not even, perhaps, scientifically certain. But it was, along with the countless other events like it, ultimately foreseeable. And for that reason, members of the Bush administration are morally responsible. Moreover, I find a case like Abu Ghraib to be of moral import with a look to future action because the case informs us of the actual workings of the world, i.e. by showing (to cut a long story short) how quickly moral depravation ramifies down through power hierarchies. Thus understood, Abu Ghraib is a piece of evidence that improves our knowledge of empirical regularities (and perhaps even scientific laws) governing human behaviour, and hence help guide our future actions. And ignoring such insights when the next occasion arises would make us even more morally culpable than we were before. But conceptual theories, it seems, cannot accommodate this fact, at least not without abandoning the conceptual outlook according to Davis’ definition. Qua spatio-temporal, contingent fact Abu Ghraib plainly has no place in the eternal realm of conceptual relations. To conceptualists, it is therefore, in principle, morally uninformative. As empirical knowledge in general must be. But this does not seem right. To me, these factors confirm that consequentialists are fundamentally right in depending, as Davis writes, on how the world

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happens to be. They are right because this, and nothing more pretentious, is what we should care about as moral beings.

Acknowledgments I would like to thank Martin Vinding, Pelle Guldborg Hansen, Kira Vrist Rønn, Inge Schiermacher, Thomas Søbirk Petersen, Stig Andur Pedersen, Frej Klem Thomsen and Jesper Ryberg for extensive comments on earlier versions of this article.

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Chapter 5 A “Slice of Cheese” – A Deterrence-based Argument for the International Criminal Court1

E debbasi considerare come non è cosa più difficile a trattare, né più dubbia a riuscire, nè più pericolosa a maneggiare, che farsi capo ad introdurre nuovi ordini. Perché lo introduttore ha per nimici tutti quelli che delli ordini vecchi fanno bene, et ha tepidi defensori tutti quelli che delli ordini nuovi farebbono bene.2 − N. Machiavelli, Il Principe Oui, mais il faut parier : cela n'est pas volontaire, vous êtes embarqué. Lequel prendrez-vous donc ? Voyons. Puisqu'il faut choisir, voyons ce qui vous intéresse le moins.3 – B. Pascal, Pensées

Abstract: Over the last decade, theorists have persistently criticised the assumption that the International Criminal Court (ICC) can produce a noteworthy deterrent effect. Consequently consensus has emerged that we should probably look for different ways to justify the ICC or else abandon the prestigious project entirely. In this paper I argue that these claims are ill founded and rest primarily on misunderstandings as to the

This chapter is forthcoming as “A “Slice of Cheese” – A Deterrence-based Argument for the International Criminal Court” in Human Rights Review. As of July 2009 it is available OnlineFirst® via DOI: 10.1007/s12142-009-0139-x on: http://www.springerlink.com/content/103917/. 2 “And it ought to be remembered that there is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order of things. Because the innovator has for enemies all those who have done well under the old conditions, and lukewarm defenders in those who may do well under the new.” 3 “Yes; but you must wager. It is not optional. You are embarked. Which will you choose then? Let us see. Since you must choose, let us see which interests you least.”

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idea of deterrence through punishment. They tend to overstate both the epistemic certainty as to and the size of the deterrent effect necessary in order to thus justify punishment. I argue that we should in general expect reasonably humane punitive institutions to lead to better consequences than if we abolish punishment entirely. And I show that, contrary to widespread assumption among critics of the ICC, we should not expect the conditions characteristically surrounding mass atrocity to undermine this presumption. Properly understood, the ICC equals adding another “slice of cheese” to our comprehensive crime preventive system modelled along the lines of James Reason’s Swiss cheese model of accident causation and risk management. Undoubtedly, some future perpetrators will elope through the holes in this layer too, but others will be deterred. Keywords: The International Criminal Court, mass atrocity, punishment, deterrence, prevention, the “Swiss cheese model”

Introduction

On December 31 2000, after then US president Bill Clinton had put his (later withdrawn) signature on the Rome Statute on the International Criminal Court, he issued the following statement: I believe that a properly constituted and structured International Criminal Court would make a profound contribution in deterring egregious human rights abuses worldwide. (Clinton 2000) Through these words, Clinton joined in with human rights organisations and politicians alike who celebrated the prospects of finally bringing an end to impunity for mass atrocities through the creation of the ICC. Among punishment theorists in the Academy, however, this hopeful enthusiasm has had severe difficulties in taking root. To the extent that the ICC has in fact found (hesitant) defenders it has almost without exception been in the retributivist quarters. Any attempts to justify the ICC consequentially on preventive grounds have met with widespread scepticism. In particular, the claim that the ICC can be justified on grounds of deterrence has met with massive counterarguments; arguments that it seems are generally considered knock-down.

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I believe, however, that most of these arguments are unconvincing and rest primarily on misunderstandings as to the idea of deterrence through punishment. In particular, they tend to overstate both the epistemic certainty of consequences and the size of the deterrent effect necessary in order to thus justify punishment. No doubt, despite the creation of the ICC we will remain saddeningly far from fulfilling the urgent post-Holocaust imperative of “Never again”. But I do believe that Clinton was basically right: a properly constituted and structured International Criminal Court will in due time be able to deter enough perpetrators to justify its costs. All things considered, I believe we are currently more justified in making this claim than we are in making the opposite. Thus, to consequentialists, knowing what we know now, establishing the ICC seems to be the right thing to do. In this article I try to show why. In focusing thus on the deterrent effect of punishment, I do not commit myself to any claim that punishment only serves preventive purposes. In particular, I do not exclude the possibility that punishing perpetrators of mass atrocities through a suitably constituted international criminal court will in addition provide a more respectful way of treating victims’ calls for justice than do other attempts to deal with an atrocious past including the currently fashionable model of truth and reconciliation commissions.4 Focusing on deterrence I also leave out several aspects that properly belong in a comprehensive discussion of the possible crime preventive effects of establishing the ICC. In particular, I do not discuss (in any great detail) the possible incapacitative or rehabilitative effects of punishment through the ICC. Nor do I discuss what has been described as the “displacement function of law”, i.e. the ability of punishment to “remove some of the temptation to retaliate” (Gardner 1998, p. 31). As to incapacitation and rehabilitation, this omission is excused by the fact that these aspects play little or no role in current discussions of punishment of mass atrocities. And apparently they do so for a good reason. If we have in fact managed to put perpetrators of mass atrocities on trial it is usually because they are definitively no longer in a position to offend on that scale. In this sense, mass atrocities are typically “oneoff crimes”. Omitting the displacement function can, on the other hand, 4

For a thoughtful and convincing argument to that effect, see Brudholm (2008).

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only be excused on account of limited space. I believe that this aspect of punishment deserves far greater attention than it has received so far – both in punishment theory generally and in the context of the ICC and mass atrocities in particular. Even within discussions of deterrence proper important aspects are left out here. In particular, I do not enter the classical ethical dispute over the failure of deterrence theory to guarantee the rights of the innocent. In spite of its classical status in traditional punishment theory, this line of criticism plays a limited role in actual discussions of the ICC. I shall only briefly indicate in the conclusion why this might be so. Despite this heavy trim, there remains, as we shall see, ample material for discussion. I proceed as follows: in part I, I discuss a general epistemological objection against attempts to justify punishment on grounds of deterrence. In part II, I consider three specific arguments that have been launched in order to show that the so-called “domestic analogy” breaks down, i.e. that even if punishment can be justified in domestic contexts any such justification cannot be transferred from the domestic context of “ordinary” crime to the international context of mass atrocities. In the conclusion I sum up the results of my findings and indicate where discussion could go from here. Part I: Deterrent justifications of punishment as such5

The underdetermination objection The first criticism aims generally at the possibility of justifying punishment as such, that is, regardless of it being used in domestic or international settings, on grounds of deterrence. This argument is rarely addressed openly in discussions of the ICC but it nevertheless lurks in the background of the writings of several critics (cf. e.g. Drumbl 2007, p. 171; Mégret 2001, p. 202; Tallgren 2002). This leaves the impression that any talk of deterrence is fundamentally flawed and discussion in the particular context of mass atrocities and the ICC proceeds only for sake of argument and on account of charity. I shall therefore discuss the general objection at some length before proceeding to the particular question of punishment of mass atrocity. The argument propounded in this first part of the article is developed more fully in (Holtermann 2009a). 5

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This argument centres on the alleged lack of empirical evidence in support of the claim that punishment can work thus as a deterrent. For example a recent survey of punishment theories over the last halfcentury cites the absence of empirical evidence as the main reason for the decline of consequentialist theories of punishment since the 1970s: By the 1970s, it was clear that the social sciences could not then, or in the foreseeable future, give empirical preventive theories much empirical support. The social sciences could not, that is, say what effect, if any, statutory penalties, rehabilitation, exemplary punishment, or even incapacitation would have on the crime rate (much less whether those effects would repay the cost). (Davis 2009, p. 84) This claim can reasonably be conceded – if only for sake of argument and pending further specification. The factors influencing criminal behaviour arguably do seem abundant and the number of possible combinations thereof indefinite. In addition we have the apparently insurmountable practical and ethical difficulties of testing hypotheses on these matters satisfactorily. And it would seem that any such difficulties of justifying punishment are multiplied many times over in the international context of mass atrocities where even more unknown factors are added to the cost-benefit calculus. Thus, as one ICC critic puts it: It is not easy to estimate how likely the preventive effect of the international system is. There are no grounds to exclude the possibility of such an effect. Neither is there evidence in its favour. (Tallgren 2002, p. 569) The central question is, however, what inferences are justified in response to these facts. Davis, for instance, concludes that we should look for different ways to justify punishment altogether (2009, p. 85) and argues that such justifications should rely on conceptual instead of empirical relations. Tallgren on the other hand appears to find punishment of international crime unjustified on any grounds:6 She suggests instead a rather conspiratorial genealogical explanation as to why the ICC has nevertheless come into existence:

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Prevention is cited simply because of the void of alternatives, the rational ones. … International criminal justice comes close to a religious exercise of hope and perhaps of deception. (Tallgren 2002, p. 561) As will become clear, however, there are good reasons to resist these discouraging conclusions. To punish or not to punish, tertium non datur – a confusion of epistemological standards The character of the objection is basically epistemological. The critics assume the sceptical stance specifically with regard to beliefs as to the possibility of deterring potential offenders through the use of punishment. The available evidence, they claim, fundamentally underdetermines any beliefs on this issue. As such, the objection renders topical traditional epistemological discussions that are not always dealt with satisfactorily in punishment theory. First, we should notice carefully what is or rather what is not warranted by this observation. In particular, we are not justified in positively claiming that punishment is not, on balance, a cost beneficial way of dealing with crime. That is, we are not justified in inferring from these epistemological difficulties that the costs of punishing criminals will, on balance, lead to worse consequences than if we abolish punishment entirely.7 In this sense, the epistemological position with

“Perhaps its task is to naturalize, to exclude from the political battle, certain phenomena which are in fact pre-conditions for the maintenance of the existing governance; by the North, by the wealthy states, by wealthy individuals, by strong states, by strong individuals, by men, especially white men, and so forth.” (Tallgren 2002, pp. 594-595) 7 This point was explicitly conceded by Tallgren in the first of the above quotes. Admittedly, criticism of preventive theories of punishment has occasionally been launched under the motto “nothing works” (cf. Lipton et al. 1975). Interpreted in this sense, the criticism does form a positive proposition (though formulated in the negative) as to the likely consequences of punishment. As indicated by the title, however, this conclusion is primarily aimed at the perhaps overly ambitious rehabilitation programs of the 1960’s and 70’s. Interpreted as a general claim that punishment does not, all else equal, tend to reduce crime, however, most commentators agree – as I will get back to below – that the evidence does not warrant this conclusion.

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regard to beliefs on crime prevention is entirely analogue to the sceptical position generally: Strictly, skepticism is a matter of doubt rather than of denial. The skeptic is strictly not one who denies the validity of certain claims, but one who questions, if only initially and for methodological reasons, the adequacy of our grounds for holding them. (Strawson 1987, p. 2) In epistemological parlour, then, what is justified is only to withhold judgement on the matter in question. The epistemological difficulties warrant only that we refrain from forming beliefs on the matter of crime prevention through punishment. However, as indicated by Strawson, thus withholding our judgement is an artificial epistemological construct. Human beings are not only belief-forming creatures. We continuously act and, notably, interact with the surrounding world. I can, if I try really hard using Cartesian methodological doubt, withhold judgement as to whether breathing or withholding my breath will be more beneficial for my general wellbeing. But I cannot not do either. I will inevitably either breathe or withhold my breath, and my choice of path will, equally inevitably, have some highly tangible consequences for my well-being. In this sense, withholding judgement is an abstraction; an epistemological luxury we cannot afford in everyday life. Being physical creatures our beliefs will inevitably convert into action at some point. This illustrates a more general point already acknowledged by Descartes on the interim character of sceptical doubts: In the meantime, I know that no danger or error will result from my plan, and that I cannot possibly go too far in my distrustful attitude. This is because the task now in hand does not involve action but merely the acquisition of knowledge. (Descartes 1996, p. 15, my emphasis)8

Ancient sceptics make an analogue point. Thus, e.g., Sextus Empiricus rejects the claim that his epistemological views should lead to a life of inaction. Our epistemological limitations only influence the modus of our so-called knowledge claims. Thus, Pyrrhonian scepticism, he claims, is perfectly consistent with having beliefs about appearances as long as we do not dogmatise: “Adhering, then, to 8

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But as Descartes implicitly recognises he cannot remain thus inactive forever. Soon the six days of meditation will be over, and short of indubitable knowledge in a world of events relentlessly unfolding he will then have to act on those beliefs that he finds, on balance, are the most justified. And the same point holds good in punishment theory – perhaps even more so than in theoretical philosophy since, here, the task in hand patently does involve action and not (only) the acquisition of knowledge. Regardless of the epistemological difficulties in ascertaining the exact effects of punishment on crime, we will inevitably have to either establish punitive institutions or refrain from so doing. This reveals a basic premise of moral life on consequentialist conditions: While omniscience as to the consequences of our actions would of course be preferable, epistemological difficulties in this regard do not amount to a decisive argument against consequentialist theories. In and of themselves they only serve to remind us of the painful human condition of being fallible creatures equipped with a conscience. In the absence of knowledge beyond some absolute threshold of doubt, then, the central issue becomes one of relative or comparative certainty between mutually exclusive beliefs. And in the case of punishment theory this means asking whether, on balance, we are more justified in believing that punishing crime will have better consequences than we are in believing the opposite. Which of the two makes up the more reasonable default presumption? In other words, we have to determine which view holds the burden of proof. There is absolutely nothing odious in thus lowering the standard of doubt and proceed on less than complete or “scientific” certainty if we have no alternative. We do it constantly in countless areas of life, e.g. perhaps most notoriously in civil law, where the burden of proof is met if a proposition has been proven to be more probable than its negation. Surely we do not for that reason consider such judgements unjustified, nor do we attempt to escape the epistemological problems by taking Davis’ route and pretend that the judgements really express conceptual truths rather than somewhat doubtful empirical matters (Davis 2009, p. 85). appearances we live in accordance with the normal rules of life, undogmatically, seeing that we cannot remain wholly inactive.” (Empiricus 1933, book I, p. 23)

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It could perhaps be objected that the example of civil law is badly chosen precisely because criminal law (in which context the question of the justifiability of punishment belongs) traditionally works with a wholly different and much stronger burden of proof, i.e., that of proving guilt beyond reasonable doubt. However, the contradiction dissolves when we take a closer look. When subjected to epistemological limitations, it is, other things equal, reasonable to act in accordance with a cautionary principle, i.e., to err on the side of caution. This principle presupposes, however, that one such side can be identified. In the individual criminal trial most agree that this is easily done. The nightmare of a single wrongful conviction by far outweighs the presumably infinitesimal loss in crime preventive effects and also even the grievances of victims and relatives of a single wrongful acquittal. Hence, the famous Blackstone’s formulation: “[I]t is better that ten guilty persons escape than that one innocent suffer.” (Blackstone 1860, pp. Book 4, *358) In the more general discussion pro and con having a punitive institution at all, things are not that simple. Other things equal, it is not immediately clear whether it is better to live in a society where a lot of crime is committed by criminals that could have been deterred by a lawful threat of punishment, than it is to live in a society where a lot of fundamentally unjustified punishment is inflicted.9 Thus, it seems that when it comes to the fundamental question of justifying the punitive institution as such, we have no alternative to the weaker standard of proof used also in civil law. Which of course is not to say that we cannot, and indeed should not, hold on to the traditional stronger standard of reasonable doubt when determining criminal guilt in court. Punishment does prevent crime Anthony Ellis has made an analogue point in a recent article (2009), and he argues, in my view convincingly, that opponents of punishment must bear the burden of proof against proponents. The main reason is simply that human beings are by and large instrumentally rational actors. That is, their behaviour can be understood and explained all predominantly This could perhaps be challenged on a version of the principle of double effect according to which the unjustified punishments would be intended and hence worse than the excess crimes that would only be foreseen. This, however, is a retributivist rationale, and therefore inapplicable here as the criticism presently under consideration claims that the preventivist line of argument fails even on its own terms.

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as attempts to achieve goals that they perceive to be desirable or, conversely, to avoid states of affairs that they consider undesirable.10 Absent this hypothesis we would generally be banned from using causa finalis in the explanation of human behaviour, in which case nothing we now know as psychology would be possible. It is so to speak the possibility condition of psychology.11 Granting this presumption of instrumental rationality, and adding that punishment induces suffering that human beings, other things being equal, strive to avoid12 it seems prima facie reasonable that people will generally be deterred, at least to some degree, from engaging in behaviour that is criminalised if they are (aware that they are) threatened with punishment for so doing, and if this threat is (perceived to be) credible, i.e. if there is some likelihood of detection. This would indeed help explain conspicuous phenomena like the dramatic increase in crime level in Denmark during World War II following immediately upon the detention of the entire Danish police force by the German occupying forces (cf. Trolle 1945). To the polemically minded any such observations are, of course, vulnerable to post hoc, ergo propter hoc-accusations, but it does seem to be a reasonable explanation that the sudden disappearance of a credible threat of punishment had something to do with it. Several criminological studies have further corroborated the general claim that punishment deters. To mention just one prominent meta-study, criminologist Daniel S. Nagin concludes thus: “[T]he accumulated evidence on deterrence leads me to conclude that the criminal justice system exerts a substantial deterrent effect.” (2000, p. 359)13 In other words, in the absence of indubitable knowledge the more

Which of course is not to say that people always know what is good for them, nor that they cannot have mutually exclusive desires. It is not even to say that people cannot want something to happen that they consider bad in itself. But when they do so, it is usually because they consider it instrumentally good, i.e. expedient. 11 In Ellis’ words: “Without such a presumption, it would be impossible to understand human affairs at all.” (2009) 12 Of course there are exceptions to this general rule. Dostoyevsky’s portrait of the painter Mikolai in Crime and Punishment provides one famous example of an inversion of traditional human sensibilities. More generally, such inversion is found e.g. in the phenomenon of voluntary penance. Gang members that consider e.g. prison convictions marks of honour provide yet another example of such inversion. 13 Cf. also e.g. Walker (1991, pp. 13-20) and Wilson (1983, ch. 7). 10

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reasonable claim surely seems to be that punishment exerts a deterrent effect. Exaggerated doubts and “supposed universal idiocy” Apparently this much is conceded even by deterrence-critics like Davis (2009, p. 85).14 He denies, however, the second step necessary in order to justify punishment generally on grounds of deterrence; i.e. he denies that we should have any knowledge as to whether the benefits of thus reducing crime actually outweigh the costs of establishing them: Neither Ellis nor any other empirical preventivist has been able to answer that question [whether the extent of the deterrence justifies the costs involved]. None knows whether punishment does deter enough to be justified by its deterrent effect. (Davis 2009, p. 86) Again, this is surely true if by “know” we mean true belief established beyond all scientific doubt. Since the claim is basically counterfactual we would ideally have to compare total societies that use punishment with (like) societies that do not in order to establish it properly. However, all known human cultures use some kind of sanctions for rule breaking (Brown 1991, p. 138), and chances are rather limited that social scientists will be given an opportunity to conduct a realistic large-scale experiment in which a society does not do that any time soon. Hence, the comparison admittedly remains, in some sense, speculative.15 However, as already mentioned we are not here (necessarily) trying to establish scientific beliefs beyond some absolute standard. We are trying to determine which claim should bear the burden of proof in view of our epistemic limitations. And I must admit that I find it hard to believe that Davis and others honestly find themselves in serious doubts Though Davis finds this deterrent effect to be “conceptual” rather than empirical. It is doubtful if this distinction makes any sense. For an extended discussion, see Holtermann (2009a). 15 Although game theorists have done extensive work explicating the role of sanctions and the consequences of their absence in relations to the achievement of socially desirable ends. Here mathematical modelling (cf. e.g. Axelrod 2006) as well as experimental research (cf. e.g. Camerer 2003) seems to suggest that the presence of informal or formal sanctions is necessary for the kind of cooperative institutions fundamental to social organization to be viable. Davis appears, however, to dismiss any such evidence, and I shall for sake of argument not build my case on it. (I am grateful to Pelle Guldborg Hansen for bringing this to my attention.)

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on this issue. Of course we cannot rule out entirely the possibility that abandoning punishment completely will lead to greater human happiness, than what is achieved by establishing punitive institutions roughly resembling those we would currently find it relevant to consider. However, the very absence of just one example throughout human history of a society successfully abandoning punishment makes it rather hard to take that possibility seriously. On the contrary, inference to the best explanation of this fact arguably does seem to be that such cultures simply are not very viable.16 The actual uncontroversiality of this assumption is further supported by the fact that it is rather hard to find serious abolitionists in punishment theory (and not just proponents of drastic reductions in the use of punishment). Even advocates of so-called restorative justice17 who are often associated with abolitionism agree that restorative justice processes must take place, as one advocate puts it, “in the shadow of the axe” (Braithwaite 2002c, p. 36). Anything else, they admit, would be unrealistically utopian. Perhaps Davis and likeminded critics simply exaggerate their doubts methodologically in order to establish a critical point. If so I find the approach misguided. It is generally hard to see why theories that justify punishment on empirical grounds should be denied access to such highly general but perfectly reasonable beliefs simply for want of them being “scientific” – whatever that means. Insisting that consequentialist theories should be put to such a hard test brings to This universal agreement indicates that perhaps political philosophers since Hobbes have not been entirely wrong in their depiction of the state of nature as an intolerable and ultimately untenable situation. One reasonable explanation for the universal use of sanctions for wrongdoing could easily be that the absence of punishment implies the absence of a local monopoly of violence that in turn implies the breakdown of social institutions and norms and finally a descent into a state of nature. To illustrate, the earlier mentioned detention of the Danish police force during WWII was immediately countered by the creation of municipal corps of watchmen that in spite of limited means and powers managed to take the edge of the exploding crime (Christensen 2001). 17 Restorative justice ordinarily refers to a theory of criminal justice that emphasises repairing the harm caused by crime rather than administering “hard treatment” on the offender, and that couples this general aim with a heavy presumption in favour of reaching it through informal deliberative stakeholder processes (i.e. victimoffender mediation, conferencing, circles). For a discussion, see e.g. Holtermann (2009d).

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mind a line of criticism that John Stuart Mill emphatically warned against: It is truly a whimsical supposition that, if mankind were agreed in considering utility to be the test of morality, they would remain without any agreement as to what is useful, and would take no measures for having their notions on the subject taught to the young, and enforced by law and opinion. There is no difficulty in proving any ethical standard whatever to work ill, if we suppose universal idiocy to be conjoined with it… (Mill 1987 [1871], p. 296)18 Short of thus supposing “universal stupidity”, then, I take it that there are no serious reasons for doubting that the beneficial effects of punishment in any society we find it relevant to consider outweigh the costs of establishing it. A different angle – Buridan’s Ass revisited The epistemological objection can, however, be given a slightly different interpretation which deserves attention before dealing with the specific arguments launched against punishing international crimes. Again, Davis delivers the input when he specifies the reason why he believes that the social sciences by the 1970’s could not give preventive empirical theories much support: If even relatively crude tuning of penalties to empirical consequences is in practice impossible, empirical preventive theories cannot justify punishment as an institution, much less choosing any institution of punishment over others, or choosing one punishment over another, except in some counterfactual world in which we would know much more than we do know here. A theory of punishment should be more practical than that. (Davis 2009, p. 84, my emphasis)

18 Charles S. Peirce makes a similar albeit more general criticism against the entire idea of building philosophy on a Cartesian concept of methodological doubt: “Let us not pretend to doubt in philosophy what we do not doubt in our hearts.” (1868, p. 140)

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Basically, this portraits preventive theory as falling pray to the practical fallacy of Buridan’s Ass which dies from starvation between two equally attractive heaps of hay because it cannot find a decisive reason for choosing one over the other. On this interpretation, then, even if we have conceded that, on balance, we are better off punishing, then we would still wind up not punishing if we justify punishment solely on empirical grounds – simply because we would be incapable of choosing between several possible institutions of punishment that look equally attractive from our epistemologically limited perspective. Two things can be said in reply: first, this objection arguably repeats the overestimation of the epistemological difficulties at play. Thus, we are not completely ignorant as to the punitive institutions at our disposal. History and our general knowledge of the sensibilities of the human psyche manifestly root out some of the more extreme possibilities. For example, sanctioning serious wrongdoing by some kind of social exclusion presents itself as a more natural choice than, e.g., do tickling.19 And social science arguably narrows the options even further. What the evidence ultimately underdetermines then is only what Nagin describes as largely incremental policy questions: “comparatively small changes grafted unto the status quo system of enforcement and penalties.” (2000, p. 366) Properly described then the dilemma is actually reasonably manageable: While it is my view that the evidence points to the entire enterprise having a substantial impact, predicting the timing, duration, and magnitude of the impact of incremental adjustments in enforcement and penalties remains largely beyond our reach. (Nagin 2000, p. 366)20 Second, critics would do well to remember that Buridan’s Ass is indeed a satirical figure. It takes a fairly (pardon the expression) dumb ass to be paralysed by the prospect of two similar looking heaps of hay. Analogously, even though, as Davis notes, a theory of punishment should

In fact, Brown recounts that in all known human cultures the use of sanctions “include[s] removal of offenders from the social unit – whether by expulsion, incarceration, ostracism, or execution” (1991, p. 138) 20 Nagin’s conclusion is also confirmed in von Hirsch et al.’s meta-study of criminal deterrence (1999, p. 47).

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indeed be practical, it is surely acceptable for it to leave some level of arbitrariness in choosing one particular punitive system over others. On the whole, punishment theory is, in this respect, in no different position from numerous other areas of human life where we try to balance costs and benefits in large-scale complex systems in less than perfect epistemic conditions. Thus (to mention one prosaic but illustrative example), in the case of industrial production of chemical substances nobody knows precisely how best to balance the risks to human health and environment with considerations of e.g. innovative capability, industry competitiveness and human progress. Even after ruling out some obviously implausible extremes our limited knowledge of the countless factors involved and their incalculable future ramifications surely leaves us with a large number of equally attractive specific solutions as to the balancing of these costs. However, neither in this area (nor in countless areas like it) do we habitually suffer the unfortunate fate of Buridan’s Ass.21 On the contrary, we choose one particular balance over all the many others available. For example, in 2006 the EU passed the comprehensive so-called REACH-regulation that deals with the Registration, Evaluation, Authorisation and Restriction of Chemical substances. REACH requires, for instance, that [t]he supplier [of a substance] shall provide the recipient at his request with a safety data sheet […] where a preparation […] contains in an individual concentration ≥ 1% by weight for nongaseous preparations and ≥ 0,2 % by volume for gaseous preparations at least one substance posing human health and environmental hazards… (REACH 2006, p. 108) Empirical considerations clearly did not dictate the choice of this particular regulation. But it would plainly be absurd to claim, for that reason, that the fundamental justification for the regulation cannot be empirical but must be conceptual to use Davis’ terminology. That would equal labelling conceptual the decision of any creature wise enough to escape the sorry fate of Buridan’s Ass. 22 Or hardly ever. But when we do, it is usually not due to our epistemological limitations but, rather, to the lack of political courage or to the political process reaching a deadlock. 22 Other examples abound of such highly detailed, but ultimately arbitrary regulations, which can nevertheless only be justified, fundamentally, on empirical

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We should have no reason to view the matter differently in the case of crime and punishment. Neither in this area does a certain level of arbitrariness on grounds of epistemic uncertainty leave us paralysed. Thus I wholly agree with Ellis: [N]o more can be required than that it [a political community] make a reasonable, good-faith estimate of the balance [where the costs of punishment are proportional to its benefits], and try to stay within it. […] So long as a community does this, it will be justified in using punishment. (Ellis 2009) Once the manifest exaggerations have been weeded out our admittedly less than perfect knowledge as to the exact consequences of punishing crime does not amount to an argument against justifying punishment on empirical grounds. If one is basically sympathetic to the empirical outlook established empirical knowledge justifies punishment roughly within the framework provided by modern rules of law – which of course still leaves ample room for such incremental adjustments which I, following Nagin, would label almost all current policy questions.

Part II: The international context – attacking the domestic analogy

The discussion so far has had no particular bearing on punishment of the crimes of genocide, war crimes and crimes against humanity qua international crimes. As mentioned, I have discussed the general epistemological objections to punishment as such because a general disbelief in the preventive effects of punishment lurks in the background in some of the critical writings on the ICC. For the most part, however, critics of attempts to justify the ICC primarily on grounds of deterrence actually do seem to accept that burden of proof, which I have so far argued should rightly be placed on grounds. Consider, for instance, the so-called Eurocode regulation: “a set of common standards containing the European calculation methods to assess the mechanical resistance of structures or parts thereof” (European Commission 2009). Surely, the only available justification of such regulation is empirical rather than conceptual. (This, of course, is not to say that there is no morally relevant difference between dealing with crime and punishment and e.g. chemicals and building construction. It is only to say, that any difference there might be is not principally epistemological.)

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their shoulders. That is, they accept, if only for the sake of argument, at least the theoretical possibility of such a deterrent effect of punishment. Instead they challenge the so-called domestic analogy, that is, the claim that this deterrent effect can be transferred from the stable context of “ordinary” domestic crime to the unstable context of the extraordinary international crimes of genocide, war crimes and crimes against humanity. Rhetorically, then, deterrence critics have focused their efforts on breaking down the continuity between these two spheres, and they have done so by pointing to the existence of particular circumstances surrounding the occurrence of international crimes that renders it difficult or even impossible to establish the wanted deterrent effect in that particular context. I shall focus on this line of criticism in the remaining part of the article.23 Before proceeding, however, I should perhaps recount what is at issue here. Thus, the claim that an institution like the ICC can be justified on deterrence grounds: • • •

is not a claim that everybody will be deterred all the time; is a claim that some will be deterred some of the time; and is a claim that it will deter a sufficient number of potential perpetrators to justify the costs of producing this effect.

Ordinary people in extraordinary and complex circumstances Critics of the ICC tend to emphasise that these mass crimes are not committed solely, or even typically by a few evil monsters or abnormal psychopaths. On the contrary, genocide, war crimes and crimes against humanity generally presuppose mobilising the masses which is possible only through the establishment of a set of extraordinary sociopsychological circumstances. Here is Mark A. Drumbl: Violence becomes normalized when neighbors avert their gaze, draw the blinds, and excitedly move into a suddenly available apartment. This broad public participation, despite its catalytic role, is overlooked by criminal law, thereby perpetuating a myth and a deception. The myth is that a handful of people are responsible for Several critics have presented criticism along roughly congenial lines. For ease of presentation, I focus primarily on Drumbl (2007), Tallgren (2002) and Wippman (1999) in the following. For an overview, see e.g. Mennecke (2007).

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endemic levels of violence. The deception […] involves hiding the myriad political, economic, historical, and colonial factors that create conditions precedent for violence. (Drumbl 2007, p. 172)24 Drumbl presents these considerations as an argument why the ICC cannot be justified on grounds of deterrence. Apparently, the idea is that because more than “a handful of people are responsible” punishing only this “handful” will not exert a deterrent effect. But as we shall see, this argument rests on a fundamental misunderstanding of the claimed deterrent effect of punishment. On the factual side, Drumbl is undoubtedly right as to the large number of conditions precedent for mass violence. In this he is supported by the rich literature within both genocide studies generally and perpetrator studies in particular. Both these areas have indeed contributed to an unmasking of myths and provided a more nuanced and richer image of the contexts in which atrocities take place and of those who commit them. For instance, a classical study lists, among other things, the following socio-psychological factors that history have shown jointly to constitute what is described as a “continuum of destruction” (cf. Staub 1989, p. ch. 2): i)

ii)

iii)

Difficult life conditions: e.g. economic problems (inflation, depression, etc.), widespread violence and social disorganisation which lead to an experience of threat to physical safety and psychological self; Cultural and personal preconditions: e.g. ingroup-outgroup differentiation, devaluation of outgroup, orientation to authority, monolithic (vs. pluralistic) culture; and Societal-political organization: e.g. authoritarian or totalitarian system, discriminating social institutions, institutions capable of carrying out mistreatment.

In addition, the less than sensational psychological profile of the majority of those who commit mass atrocities has been confirmed

Tallgren mentions roughly analogue factors in her discussion of the possibilities of establishing general prevention through an international criminal justice system (2002, pp. 570-576). But in fact she explicitly admits that they have no bearing on the possible deterrent effect of punishment (p. 576).

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thoroughly in a wide variety of perpetrator studies from Milgram’s psychological experiment on obedience to authority (cf. 1974) to more recent historical case studies like Browning (1992) and Goldhagen (1996). I see no reason to doubt these and like conclusions in general, but it is unclear what, if any, bearing they should have on deterrence theory. The complexity of the contexts in which mass violence takes place and the ordinary character of most perpetrators can perhaps be problematic if one subscribes to an expressionist or communicative theory of punishment like the one proposed e.g. by R.A. Duff (2001) according to which we punish in order to communicate community censure to the perpetrator. On this account it does perhaps present some difficulties to punish people who have been placed in a complex context in which they could hardly have acted differently.25 But Drumbl explicitly presents these facts as an argument against attempts to defend punishment on grounds of deterrence, and I simply cannot see why this should be so. First, in and of themselves the facts only tell us that the veneer of civilisation is regrettably thin. We are all – or almost all – capable of committing the most horrifying deeds under the right (i.e. wrong) circumstances. As Glaucon tells Socrates in The Republic most if not all of us will regrettably seize the chance and perpetrate if the Ring of Gyges26 is passed around widely: And this we may truly affirm to be a great proof that a man is just, not willingly or because he thinks that justice is any good to him individually, but of necessity, for wherever any one thinks that he can safely be unjust, there he is unjust. (Plato 1901, p. 38, my emphasis) If, however, one justifies punishment on deterrent grounds, this does not imply any claim as to the extraordinarily evil or depraved nature of the perpetrator. On the contrary, it only presupposes that human beings are capable of doing evil in specific contexts, and that we can and should try to oppose this unfortunate predisposition by influencing the structure of incentives. Duff obviously does not think so (cf. 2009). The Ring of Gyges grants the one who wears it the power to become invisible, and Glaucon uses it in order to discuss whether ordinary people would act in accordance with the precepts of morality if they did not have to fear the consequences of their actions.

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Second, it appears to me that Drumbl confuses necessary and sufficient conditions in the argument. In order to sort out this confusion I suggest that instead of talking unqualified of causes or responsibility for mass violence we introduce the concept of a NESS-test, which was developed in order to deal with the intricate issue of causality in law. Following Wright (2001)27, NESS is acronym for necessary element of a sufficient set, and the concept captures that what is usually referred to as causes or as being responsible for an effect, rarely brought about that effect single-handedly. If, for instance, I hit the light switch and the lights turn on we would usually say that I caused or was responsible for turning on the light. If, however, the light switch had, say, been disconnected from the electric system or there had been no light bulb in the lamp, my doing so would not have turned on the lights. Thus, being connected to the electric system, having a light bulb in the lamp and countless other conditions constitute the set which in conjunction with my hitting the light switch are sufficient for turning on the lights. They are all NESS-conditions. This concept of a NESS-condition is particularly useful in the analysis of complex events like genocide, crimes against humanity and war crimes. Thus it arguably applies to each of “the myriad political, economic, historical, and colonial factors” which Drumbl mentions and which Staub and other scholars of genocide and perpetrator studies try to outline more systematically. Each of these factors, empirical studies seem to tell us, does indeed have to be present in order for mass violence to occur. But interestingly the NESS-test also applies to the absence of a credible threat of punishment. Genocide etc. simply do not take place unless the Ring of Gyges has been passed around widely. To my knowledge, throughout history genocides have never taken place unless a credible threat of punishment from local authorities has been absent at the time of perpetration.28 Only in conjunction with this condition, it seems, is the set of factors sufficient. If indeed this is so, it is hard to see why a legal system whose primary aim it is to prevent mass violence should be banned from establishing punitive institutions that aim primarily at removing this single factor known to be a NESS-condition for the occurrence of that Wright attributes the concept to Hart and Honore (1959). Or unless the threat of punishment has been annulled by a more immediate threat of force. The distinction is not important here.

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sort of violence. Thus aiming at one factor simply does not commit the legal system to any claim that none of the other factors belong in the picture. If any myth or deception is perpetuated in this regard it is entirely due to the presence of retributivistic rationales in the courtroom. What the story of the myriad factors does tell us, on the other hand, is that in crime prevention we do not have to think of punishment as our only chance of preventing mass crime. Instead, we should use a “broadspectrum drug” in the sense that we should target each of those factors that genocide and perpetrator studies tell us pass the NESS-test, and we should do so with means tailored specifically to each of them. It would perhaps be helpful to think of crime prevention generally in terms of the so-called Swiss cheese model, which James T. Reason (cf. e.g. 2000) has introduced in the field of risk analysis and risk management in complex human security systems like aviation control, nuclear plants, hospitals etc. In these areas, the main goal is also preventive, i.e., to prevent accidents, and when accidents occasionally do happen it is also best analysed in terms of NESS-conditions, i.e., a number of factors combine simultaneously in such a way as to constitute a set sufficient for the adverse effect. On these conditions, Reason invites us to envision security systems as successive layers of Swiss cheese, where each layer is designed to remove one particular kind of NESScondition, i.e., one of the factors known to be necessary for an accident to occur. The Swiss cheese-part enters the picture because, in complex human systems, it is impossible to design perfect layers. Unfortunately, none of the NESS-conditions can be removed permanently. The challenge, then, is to design the layers in such a way as to prevent that “the holes in many layers momentarily line up to permit a trajectory of accident opportunity” (Reason 2000, p. 769). Applied to the field of mass violence each slice of cheese represents an (alas too imperfect) attempt to remove a NESS-condition on the “continuum to destruction” (e.g. severe economic problems, social disorganisation, ingroup-outgroup differentiation etc. - cf. above). Establishing the ICC simply adds another layer at the end of this continuum by attempting to end impunity by threatening punishment. Undoubtedly, this layer will also have plenty of holes in it (partly for reasons to be discussed in the following) but this is no reason not to add it to our preventive system. Thus, we get the following version of James Reason’s Swiss cheese model: 127

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Fig. 1 The Swiss Cheese model of the prevention of mass atrocities (cf. also Reason 2000) Instrumental rationality in times of mass violence? A related though distinct criticism of the ICC concerns the necessary presumption of instrumental rationality among perpetrators if talk of deterrence is to make any sense. Several theorists have challenged the applicability of this presumption in the contexts of mass violence. For example, Drumbl remains unconvinced that punishment of international crimes will effectively deter: because deterrence’s assumption of a certain degree of perpetrator rationality, which is grounded in liberalism’s treatment of the ordinary common criminal, seems particularly ill fitting for those who perpetrate atrocity. (Drumbl 2007, p. 171)29 Much depends, of course, on how one reads this claim. But interpreted as a radical claim that instrumental rationality should generally be

See also, Martha Minow: “Individuals who commit atrocity on the scale of genocide are unlikely to behave as “rational actors”, deterred by the risk of punishment.” (1998, p. 50) Parallel passages can be found also e.g. in Tallgren (2002, p. 584) and Mégret (2001, p. 203). 29

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totally absent in times of mass violence, I simply cannot see why this should be so. As earlier noted by Ellis, “Without such a presumption [of instrumental rationality], it would be impossible to understand human affairs at all.” (2009)30 On the contrary, the very possibility of conducting perpetrator studies testifies to the existence of such rationality – if rightly understood. It shows that, however perverted and abhorrent, perpetrators’ entire motivational structure is indeed pervious to scientific enquiry. This is so because as human beings perpetrators continuously make some sense of their own behaviour. They justify their actions to themselves, and if this justification is not immediately obvious to everyone watching (e.g. in the shape of the barrel of a gun pushing the perpetrator forward), it can be meticulously reconstructed through empirical studies. This is exactly what Staub, Browning and others have shown.31 They have shown the step-by-step procedure that renders it possible for perpetrators gradually to justify their increasingly perverted actions. Indeed, these studies have shown what makes these actions appear to the perpetrators to be the only rational thing to do. Thus, perpetrators of mass violence are no doubt rational actors in a sense sufficiently rich to be compatible with the fundamental assumptions behind deterrence theory. The criticism of the rational actor-assumption can, however, be interpreted more plausibly as a claim that, though rational, perpetrators of mass violence are typically embedded in a motivational structure that renders it impossible for them to react on the threat of punishment the way rational actors would normally do. And this is so because such perpetrators usually live hand-in-mouth. Each day they struggle for survival in some of the most callous and dangerous environments on earth. In order to describe their life conditions we might safely ignore the metaphorical “as” of Matthew Arnold’s famous poem “Dover Beach”: And we are here as on a darkling plain Swept with confused alarms of struggle and flight, Where ignorant armies clash by night.

Though independently developed and structured, the following argument is fundamentally congenial to Ellis’ convincing discussion in (2009). 31 Which of course is not to say that such studies cannot disagree internally as to their specific theories of perpetrator motivation.

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With a gun in your back you need something roughly as convincing pointing in the opposite direction in order not to keep moving. And an ICC that has no police, is placed far away in The Hague, and which is probably going to take several years in order to gather sufficient evidence to present an arrest warrant, seems to be entirely incapable of presenting a threat of that calibre. On the whole, the difficulty of establishing a credible threat of punishment is often presented as a main reason for scepticism as to the ICC. Here is Wippman: When the various motivations for attacks on civilians are combined – the desire to defend one’s community, hatred of the other side, a belief that civilians are essentially indistinguishable from combatants and therefore a threat, and directions from political and military leaders encouraging such attacks – it is not surprising that a slight risk of future prosecution will not have a major deterrent effect. (1999, p. 479)32 No doubt rendering the threat of punishment credible is one of the major challenges for the ICC. However, for two reasons this need not be a decisive problem. First, there is a risk of overstating the point. Even during the perpetration of mass atrocities it does occasionally happen that perpetrators find the time and surplus energy to take precautionary measures as to the possibility of future sanctions. As Wippman continues: Serb forces in Kosovo routinely wore black ski masks when engaged in ethnic cleansing; as the prospect of NATO control over Kosovo loomed larger, Serb forces intensified efforts to conceal mass graves and hide evidence of criminal conduct. (1999, p. 480)33

Cf. also Minow: “[I]t is not irrational to ignore the improbable prospect of punishment given the track of record of international law thus far.” (1998, p. 50) 33 Ellis refers to analogue behaviour on behalf of operators of Nazi concentration camps as allied victory approached (2001, p. 111, n13) 32

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Thus, it appears that, however remote, the surrounding world does stand a chance after all of influencing perpetrators behaviour – at least to some degree. Second, there is (cf. the first Wippman-quote above) an outspoken tendency in these arguments to focus on foot soldiers, i.e., on rank-andfile acting under orders and/or in massively coercive social circumstances. And this is admittedly where the difficulties of reaching potential perpetrators with an external threat of punishment seem the most overwhelming. However, this focus is seriously misleading. The ICC is on all accounts a big-fish court. Its aim is not the individual perpetrator armed with a machete but those political and military leaders who conceived, initiated and ordered the mass atrocities. Thus, among probably tens of thousands of perpetrators actually involved in committing various mass atrocities in Congo, Uganda, the Central African Republic and Darfur, Sudan since 2002 the ICC-prosecutor has (as of May 29, 2009) initiated only thirteen (!) cases (ICC 2009). It is of course possible that once fully operable the ICC will indict more per conflict, but we should not expect the total number of indictees to exceed more than a tiny fraction of the total number of actual perpetrators of mass atrocities. Thus, to illustrate, the fully operable ICTY and ICTR indicted 161 and 90 persons respectively (Drumbl 2007, p. 170).3435 Political and military leaders are generally placed in circumstances where their contribution plays a decisive role as events unfold. Even though they surely cannot perform mass atrocities single-handedly their actions as leaders are undoubtedly necessary in order for them to take place. That is, they are NESS-conditions in the above sense. And there are several good reasons to suppose that, in contrast to foot soldiers, these leaders can, in the right circumstances, be deterred by the threat of punishment, i.e., that they are instrumentally rational in the sense desired.

For those entirely sceptical as to the possibility of the international community eventually bringing perpetrators of mass atrocities to justice, the numbers of the ICTY and ICTR should give some reason to pause. Of the 161 indicted by the ICTY only two remain at large as of May 2009 (ICTY 2009). Of the 90 indicted by the ICTR 13 remain at large (ICTR 2009). 35 In fact, the ICTY initially even indicted some foot soldiers too. A strategy later to be abandoned on grounds analogue to those presented here (Akhavan 2001, p. 19).

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First, unless of course we give in entirely to determinism and fatalism and deny ourselves any possibility of acting differently than what past events had in store (in which case we do not have to worry too much whether or not the ICC can be justified because it will inevitably either come to be or not according to its destiny), political and military leaders will typically act under less immediate pressure from the surroundings than do foot soldiers who are under orders and at gunpoint. As Payam Akhavan observes: Once mass violence has erupted, threats of punishment can do little to achieve immediate deterrence. However, the outbreak of such violence can be inhibited, and its resumption in postconflict situations prevented – because it often results from an elite's deliberate political choices. (Akhavan 2001, p. 10) With the “confused alarms of struggle and flight” safely at a distance political and military leaders arguably seem to be left with some room for action in which the possibility of future punishment can play a role. To this should be added an admittedly somewhat speculative and generalising psychological consideration, which nevertheless deserves to be taken seriously. It seems reasonable to suppose that in order to reach the top of the power hierarchy in those dictatorships and fascist states that are usually racked by mass atrocities (indeed to become a leader in any political community), it is generally necessary to possess an exceptionally high degree of instrumental rationality. It is hard to think of a better sign of mastery of unsentimental Machiavellian meansend reasoning than having reached a high-level position in politics. One generally does not get that far by living hand-in-mouth. It is done only by thinking strategically and by taking the long view. While political and military leaders certainly may not always have demonstrated a grasp of the categorical imperative it may safely be assumed that they master the hypothetical imperative considerably better than the majority. It is therefore generally hard to see why the pitiful fate of e.g. Milosevic, Karadzic, and even long time fugitive Mladic should not leave an impression on at least some political and military leaders who are about to initiate mass atrocity and who find themselves in roughly analogue geopolitical realities, e.g. being leaders of mid-size states, possibly even with powerful allies in the Security Council. For these reasons, I believe Akhavan is wholly right: 132

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Where leaders engage in some form of rational cost-benefit calculation, the threat of punishment can increase the costs of a policy that is criminal under international law. Leaders may be desperate, erratic, or even psychotic, but incitement to violence is usually aimed at the acquisition and sustained exercise of power. (2001, p. 12) If indeed the threat of punishment is credible we should therefore expect high-level leaders to take it into consideration before initiating mass atrocities.36 And this contention is even further supported by an additional consideration to be presented in the following. The peace over justice-argument Several critics have, however, denied this conclusion. And they have done so on grounds that ultimately lead to yet another separate argument against the attempts to justify the ICC on grounds of deterrence. This line of argument takes as its point of departure the fact that historically warnings of future punishment for various kinds of mass violence have rarely proven themselves efficient: Actual experience with efforts at deterrence is not encouraging. … Beginning in 1941, the United States and the United Kingdom issued a series of highly publicized warnings that violations of the laws of war would be punished and that superior orders would not be accepted as a defense. … Similarly, in the former Yugoslavia, the Security Council and various individual states repeatedly warned combatants that those committing atrocities would eventually be prosecuted. But … there is no empirical evidence of effective deterrence in either case. (Wippman 1999, p. 474) On the contrary, critics claim that the threat of punishment often works counter to its express intention because it tends to prolong armed conflict and perhaps even intensify mass killings rather than deter from

Even Saddam Hussein was deterrable. Thus, as testified by Hans Blix (2004), leader of the UN arms inspectors in Iraq, Saddam did indeed cooperate once he faced an immediate and credible threat. Unfortunately for him, it appears the war had already been decided on other grounds.

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them. This has for instance been claimed in criticisms of the ICC-decision to prosecute leaders of The Lord’s Resistance Army in Uganda. Similarly, the indictment of Sudan’s president has been accused by the African Union of jeopardising the difficult peace process in the region (BBC 2008), and it has also led the former U.S. Special Envoy for Sudan to warn of “a disaster in the making” (Natsios 2008). Thus understood the critics’ claim is not simply that the ICC is an impotent yet ultimately harmless endeavour but rather that it is in fact a dangerous institution that should be avoided at all costs. Before replying to this general line of criticism it gives rise to one important comment. It should be strongly emphasised that this entire argument comes at a price, which may be too high for many deterrencecritics to pay. In effect, it decisively dismantles any charge along the rational actor-criticism discussed above as to the inevitable impotence of the ICC. It is plainly incoherent to hold, on the one hand, that because of the inherent complexities of mass atrocities any threat of punishment issued by the ICC will be incapable of reaching perpetrators in the “confused alarms of struggle and flight”, while simultaneously claiming, on the other, that upholding this threat can actually prolong and even intensify these same crimes. Deterrence critics will therefore have to make a choice between the peace over justice-argument and the arguments discussed earlier in this second part of the article. And in fact, I believe that the most sceptical voices as to the inevitable impotence of an international criminal court have already been proven wrong by the above (and other like) events since the ICC came into existence (which of course is not to say that these same events have established its omnipotence either). Properly understood, then, the peace over justice-argument implicitly confirms the soundness of the domestic analogy on the very point where the rational actor-line of criticism attempts to break it down. This does not change the fact, however, that deterrence theorists continue to face the challenge (as, indeed, do proponents of punishment of mass atrocities on any grounds) that while indeed the threat of punishment can have an effect on unfolding events, there is a risk of this effect being highly adverse, viz., in the shape of a prolonging and intensifying of mass atrocities. This line of criticism appears, however, to misunderstand fundamentally the rationale behind any claim as to the deterrent effect of punishment. That the Nazis, the parties to the Balkan wars, the LRA, 134

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etc. have all continued and perhaps even intensified their crimes despite a direct threat of punishment should generally come as no surprise to anybody discussing punishment on grounds of deterrence. First of all, granting the distinctive character of mass atrocities, warnings of the kind Wippman refers to simply came too late. As earlier noted, once erupted there is enormous inertia in mass atrocities. It is therefore, as Akhavan notes with specific reference to the former Yugoslavia: … unrealistic to suppose that the ICTY could have instantaneously deterred crimes in the midst of a particularly cruel interethnic war in the former Yugoslavia. Hastily erected bulwarks cannot be expected to save lives when the deluge has already begun. The threat of punishment – let alone an empty threat – has a limited impact on human behavior in a culture already intoxicated with hatred and violence. (Akhavan 2001, p. 10) To this should be added a more general point. If punishment has any deterrent effect at all, it is ex hypothesis predominantly because potential perpetrators who, as of yet, have no outstanding business with the law, refrain from perpetration from fear of punishment. People who have already trespassed but remain at large, on the other hand, have had their incentive structure irreversibly perverted. To them, the prospect of prosecution and punishment no longer constitutes a disincentive to perpetrate because they are already due punishment. On the contrary, such prospect obviously gives these perpetrators a strong incentive to resist arrest, if necessary through continued perpetration – hence the apt word desperados. On the whole, this is no different from national legal systems. An armed robber with the police close on her heels is more likely to do harm than one who has been granted safe conduct (see also Ellis 2009; Holtermann 2009b). This reminds us that while the benefits of punishing crime (again, ex hypothesis) are measured primarily in potential crimes that ultimately remain uncommitted because of the threat of punishment, any costs incur almost exclusively on “the carrying out side” of the posing of this threat. From a preventivist point of view, anything we do in response to a particular crime after the perpetrator first trespassed is highly likely to

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be counterproductive with regard to that particular crime.37 Once people have perpetrated they are in a sense written off as lost causes, i.e. as one of those on whom the threat of punishment did not work. We nevertheless carry out the threat despite its probable negative effects in each particular case in the belief that we can convince others of the credibility of the threat.38 Punishments actually carried out, then, are assurances essentially directed to other people. This, in a nutshell, is the deterrent justification of punishment. This also reveals that deterrence theories of punishment depend crucially, and in ways unparalleled by most other theories of punishment, on the permanency of the court issuing the threat. Punishments of individual perpetrators are capable of rendering the threat of punishment credible to other potential perpetrators only if: i) they are perceived by the potential perpetrators to be instantiations of rule-governed behaviour on behalf of the courts, and ii) such perpetrators suspect that their own intended crimes will fall under that same rule. In other words, deterrence presupposes that punishments in relation to a particular conflict can be regarded by potential perpetrators in conflicts yet to break out as promises of similar punishment if they should choose to transgress. However, by definition it simply does not make sense for an ad hoctribunal to issue such a promise. Qua ad hoc it does not have the institutional mandate. Any rules it follows apply solely to the conflict mentioned in its founding statute. In this sense ad hoc tribunals act in settings that are analogue to Kant’s imagined society that is to be resolved completely on the following day but which still has one murderer in custody (Kant 1996, p. 106). As we know, Kant’s theory of punishment can survive in that setting. A deterrent theory, however, cannot. Absent a permanent court it is of course possible and perhaps even likely that some future cases of mass atrocities would still have been prosecuted through the establishment of new ad hoc-tribunals. But in that case, the absence of a permanent court would nevertheless have been a sign that the international community simply did not want to be

Or almost anything. As mentioned in the introduction punishment is likely to serve a displacement function too. 38 And this, of course, is what is generally unacceptable about the thought of deterrence to philosophers of a Kantian bent.

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so obligated in the future. That is, it would not have wanted to promise punishment to future perpetrators. This is only done when any preexisting regularities of sanctioning of mass violence are framed into a permanent legal system (with codified laws, courts, rules of procedure, etc.). Creating a standing international criminal court, then, is a particularly forceful way of enforcing and coordinating people’s expectations as to this sanctioning. It is a speech act, which provides the institutional means in order to make this regularity common knowledge among potential perpetrators. Thus, we should expect the perceived likelihood of perpetrators being caught and prosecuted to have increased because of the creation of the ICC. Denying this would amount, in effect, to the claim that all potential perpetrators consider the signing of the Rome Statute and the creation of the ICC to be nothing but an empty promise; that they believe, for instance, that those who have so far been caught and prosecuted by the ICC would have been so in any event. Excluding facile statements of fatalism, it is hard to see which considerations would support such a categorical statement. In fact, all of the above is deterrence theory 101, and, hence, the factors mentioned in the peace over justice-argument do not constitute a breakdown of the domestic analogy. On the contrary, they very much confirm it. The only difference is in scale and dimension. Potential dangers of upholding a threat of punishment against a dictator engaged in mass violence are far greater than those of upholding a threat against an armed robber. But so, obviously, are the potential gains in the shape of potential genocidaires backing down from initiating mass violence under the threat of punishment. These considerations also explain why we should reject as unduly myopic claims that the international community should back down from its threat of punishment at each prospect of it affecting a prolonging of an ongoing conflict. It has been suggested that in such cases the international community should stand ready to either grant blanket amnesties on grounds of equity (May 2005) or to grant conditional amnesties in accordance with the model of the South African Truth and Reconciliation Commission (Roche 2005). But this is problematic first, because we have no guarantees that the granting of such amnesties will in fact halt ongoing conflicts. Thus, it has been persuasively argued that continued impunity will at least in some cases make it more likely that new atrocities will be committed (cf. Méndez 2001, p. 31). Second, to the degree amnesties will in fact help further peace in particular conflicts 137

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they plainly do so at the expense of undermining the credibility of the general threat of punishment issued by the court because the conditions for withdrawing this threat will be easily replicated by future perpetrators.39 Thus, in effect, it would render the international community vulnerable to blackmail. And if I am right as to the existence of a deterrent effect of punishment, we should expect the temporary local benefits of giving in to such blackmail to be outweighed by the lasting global benefits of having established a credible threat of punishment.40 This, of course, is not to say that the ICC should never back down. If we have reason to believe that prosecution and punishment will lead to disastrous consequences, e.g. in the shape of nuclear war, it would surely be wrong to insist that the ICC-prosecutor should continue unaffected. Kantianism aside, ethical imperatives are undoubtedly best understood in an other things being equal-fashion. It is not only a sign of the arrogance of power but equally of moral perversion to subscribe to the motto of Roman emperor Ferdinand I: “Fiat iustitia, et pereat mundus” (Let there be justice, though the world perish). It is only to say that an ICC that justifies punishment on grounds of deterrence must look beyond narrow national or regional interests For an extended discussion on this point, see Holtermann (2009b). Pertinent to determining whether or not the ICC can ultimately be justified on grounds of deterrence is of course also the issue of the financial cost involved, and in particular whether resources spent on the ICC could otherwise have been allocated to the other “slices of cheese” in our comprehensive atrocity preventive system, e.g. to debt reduction or economic aid programmes. This is a difficult question involving notoriously tricky counterfactual reasoning, and dealing with it in great detail is beyond the scope of this work. But I will add a few comments in order to keep the worry in perspective. The 2009 budget appropriations for the ICC alone amounted to €101,229,900 (International Criminal Court 2008a). In absolute figures, this is no doubt a large amount but it pales in comparison with the amount spent globally on economic aid programmes etc. each year (for instance, Denmark alone spent 20 times that amount in official development assistance in 2008 (OECD 2009)). In other words, even if we imagine, counterfactually, that all the money currently spent on the ICC would otherwise have been invested in various ways in sustaining the other “slices of cheese” (which by no means should be taken for granted), then we may safely assume any additional preventive effect resulting from this allocation to be only infinitesimal. Spending the money on the ICC, on the other hand, introduces a whole new “slice of cheese” to the many already in existence. A slice which, for the reasons presented in this article, we should expect to produce a more significant deterrent effect. (I am grateful to an anonymous reviewer for bringing this to my attention.) 39

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when deciding on which cases to prosecute and ultimately punish. Otherwise it would defeat its own purpose. Thus, the sensible maxim for the ICC to follow vis-à-vis the peace over justice-argument is: “Fiat justitia si mundus non periet” (Let there be justice unless it will make the world perish). Conclusion

Admittedly, the above discussion of the peace over justice-argument does not constitute a decisive argument against the concerns presented in that argument. Strictly, I have only illustrated how the potential adverse effects cited in it are wholly in accordance with the basic predictions of deterrence theory and thus that in themselves these effects do not constitute a counterargument to the theory. I have not proven, however, that the additional assumption necessary in order to justify punishment on deterrent grounds will also be satisfied, i.e. that punishing these perpetrators will also in fact have a deterrent effect on other potential perpetrators – let alone an effect sufficiently large to justify the costs of producing it. And it could perhaps be objected that any manifest effects of the ICC occur only in medias res or even ex post the commitment of mass atrocities, i.e., when one has been so unfortunate as to be singled out in “the indictment lottery”. The potential perpetrators who have yet to actually trespass, on the other hand, will not take the ICC into account since the risk of being thus singled out is too small to take seriously. While some potential perpetrators may undoubtedly think this way (and hence escape our preventive system through one of the holes in the Swiss cheese) others seem, however, to take the possibility of punishment more seriously. How else to interpret, for instance, the reluctance of the USA, China, Russia etc. to sign the Rome Statute, than that even super powers of their stature fear having members of their ruling elites indicted by the ICC? Granting the political realities of the international system they may not fear actual punishment. But it seems reasonable to suppose that they fear having the international embarrassment and political nuisance of an ICC indictment added to the existing system of political pressures. That is to say, they refuse to sign because they estimate that signing will increase the likelihood of being indicted in the future, and they do not want the prospects of such indictment to enter their cost-benefit analysis in future decision situations.

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And this is precisely what deterrence theorists, on the other hand, would like it to do.41 However plausible, these considerations admittedly do not exclude definitively the possibility that any such effect will in fact be absent. And flatly denying this possibility would plainly be pulling the wool over our eyes. There can generally be no guarantees as to the consequences of our actions in complex, large-scale human systems, and thus neither in that of international crime and punishment. This is indeed disturbing but as I have argued in the first part of this paper any such lack of certainty does not per se constitute an argument against deterrence theory. On consequentialist conditions, the mere existence of possibilities of adverse effects is not very interesting. In and of themselves they only serve to remind us of the painful condition of being both fallible and conscientious. Since choosing is imperative, i.e. since we cannot not either punish perpetrators of mass atrocities or refrain from so doing, the possibility in question must be rendered plausible by argument. We must be given positive reasons to take it seriously. And I believe that I have shown in this article that the arguments ordinarily presented to that effect fail. Thus, I have argued, in the first part of the paper, that on balance we are more justified in believing that establishing reasonably humane punitive institutions will, other things equal, lead to better consequences than if we abolish punishment entirely. This assumption simply provides the best fit with our basic knowledge of human history and psychology. And I have shown in the second part of the paper that, contrary to widespread assumption among critics of the ICC, there is no reason to believe that the so-called domestic analogy breaks down in the context of international crime, i.e. that the particular conditions surrounding the perpetration of mass atrocities undermine the other things equalproviso. In particular, I have shown: •

that we have good reason to presume that the absence of a credible threat of punishment serves as a NESS-condition for the outbreak of

Whether or not, then, ultimately to label such deterrent effect a deterrent effect of punishment seems merely a matter of words. In any case, it would plainly be impossible for the ICC to be the cause of such nuisance did it not at least occasionally manage to actually carry out punishment. Hence, punishment is ultimately a necessary condition for any such deterrent effect resulting from the ICC. See also, Ellis (2009). 41

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mass violence in the complex contexts in which it typically takes place. Thus, it is reasonable to suppose that the introduction of such a threat equals adding another “slice of cheese” in the Swiss cheese model of our combined efforts at preventing mass atrocities; that the rational actor assumption crucial to deterrence theory holds good also in contexts of mass atrocities, and that in spite of possible difficulties at reaching low ranking perpetrators we should expect members of the ruling elites to be capable of responding to credible threats of punishment; and finally that one of the criticisms most often heard, i.e. the peace over justice-argument, i) is inconsistent with the other two objections; and ii) if sound only confirms that the basic suppositions of deterrence theory holds good, even in the context of mass atrocity.

Hence, I conclude that until different arguments have been presented we are justified in assenting to Clinton’s words: “that a properly constituted and structured International Criminal Court can make a profound contribution in deterring egregious human rights abuses worldwide”. This conclusion should be of interest even to those who do not believe that new arguments challenging this empirical prediction are forthcoming but who nevertheless remain sceptical as to whether this fact actually justifies the ICC. Any such scepticism would probably have to be presented along the more classical philosophical lines that as a punitive institution the ICC remain unjustified on deterrent grounds (as on consequentialist grounds generally) because it implies using convicted perpetrators merely as a means to deter other perpetrators as a goal. Hence it fails to guarantee the rights of the innocent. It appears, however, that this line of criticism is somewhat less convincing in the context of mass atrocities. By their very nature, mass atrocities are typically difficult to hide (cf. also Ellis 2009). In addition, they are usually subject to massive public interest and media coverage. Thus, it seems less than likely that an ICC-prosecutor should ever feel tempted to knowingly prosecute an innocent person for welldocumented mass atrocities with hundreds or thousands of victims. Die-hard retributivists will of course reply that such an ICC nevertheless remains unjustified because it still fails to guarantee the rights of the innocent in principle. We can always imagine possible worlds in which an ICC-prosecutor will in fact deceive the world opinion and knowingly punish an innocent dictator in order to secure some 141

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perceived good. I believe however that most people dedicated to finding ways of dealing with the disturbing phenomenon of mass atrocities will find this line of reasoning somewhat too theoretical to take very seriously.

Acknowledgments I would like to thank Martin Vinding, Mikkel Munch-Fals, Thomas Søbirk Petersen, Pelle Guldborg Hansen, Kira Vrist Rønn, Inge Schiermacher, Stig Andur Pedersen, and, in particular, Frej Klem Thomsen, Jesper Ryberg and two anonymous reviewers at Human Rights Review for discussion and valuable comments on earlier versions of this paper.

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Chapter 6 The End of ‘the End of Impunity’? The International Criminal Court and the Challenge from Truth Commissions1

Abstract: With its express intention “to put an end to impunity”, the International Criminal Court (ICC) faces a substantial challenge in the shape of conditional amnesties granted in future national truth commissions – a challenge that invokes fundamental considerations of criminal justice ethics. In this article, I give an account of the challenge, and I consider a possible solution to it presented by Declan Roche. According to this solution the ICC-prosecutor should respect national amnesties and prosecute and punish only those perpetrators who have refused to cooperate with the truth commission. I argue that this compromise is untenable. As a general rule, if we justify the ICC on grounds of deterrence we should not accept conditional amnesties granted in national truth commissions. Keywords: International Criminal Court, deterrence, truth commissions, amnesties, restorative justice, Declan Roche

Introduction

The ink was barely dry on the Rome statute founding the ICC before the first murmur of dissent was heard in the hallways of Academia. In the ensuing years this has led to a number of writings challenging the philosophical foundations of the ICC – mainly on grounds of alleged difficulties in transplanting the traditional justifying aims of trial and

This chapter is forthcoming as “The End of ‘the End of Impunity’? The International Criminal Court and the Challenge from Truth Commissions” in Res Publica, special issue: “Punishing War Crimes, Genocide, and Crimes Against Humanity” (ed. J. Ryberg). 1

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punishment (retribution or prevention) from the domestic to the international arena of mass atrocity crime.2 Below or beside these more or less abstract philosophical discussions, however, lurks a problem that might prove an even more imminent and substantial challenge to the ICC. It is a challenge with highly tangible implications for its near-future work but with equally deep philosophical roots. This challenge has its background in a conspicuous invention of the latter half of the twentieth century. For centuries the field of criminal justice ethics has been dominated largely by retributivism and consequentialism in various guises and combinations. These theories agree basically that punishment should be our main response to crime but they disagree on its justification. From the 1970s onwards, however, a third theory – or what presents itself as a third theory – has entered the battlefield, viz. so-called restorative justice.3 This theory takes as the primary aim of criminal justice the restoration of values destroyed by crime and seeks to do so by letting “the parties with a stake in a specific offence resolve collectively how to deal with the aftermath of the offence and its implications for the future.” (Marshall 2003, p. 28) Restorative justice has gradually developed into a vital movement with both growing theoretical sophistication and widespread implementation in criminal justice programmes around the world.4 Restorative justice believes generally in the superiority of informal stakeholder based processes over formal trials in achieving the overall goal of restoration. In the domestic setting this implies direct victimoffender mediation processes where each party gets to tell their story and “all parties are encouraged to decide upon a mutually agreeable Cf. e.g. (Ryberg this issue, Tallgren 2002; Wippman 1999; Wringe 2006) to mention just a few. 3 Thus, one of the leading figures in the restorative justice movement, Howard Zehr, has repeatedly described it as presenting a new paradigm in criminal justice ethics (cf. Zehr 2005). However, it is in fact controversial whether restorative justice is genuinely a third theory or rather a revision of traditional consequentialism. As I have argued elsewhere (Holtermann 2009d), Restorative justice’s relationship to traditional punishment is considerably more ambivalent than indicated by the rhetoric of its proponents. I will get back to this issue below. Suffice to say here that restorative justice is a third theory in the sense that it diverges from the punitive apriorism of traditional theories of criminal justice. 4 A clear sign of this development was the adoption by the UN of a set of “Basic Principles on the use of restorative justice programmes in criminal matters” in 2002.

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form and amount of reparation – usually including an apology.” (Johnstone 2002, p. 1) In the context of mass atrocities, restorative justice is usually taken to imply using truth commissions instead of tribunals as a means to deal with the past. To many commentators this idea has found its best model so far in the South African Truth and Reconciliation Commission (SATRC) (cf. e.g. Minow 2000; Roche 2005) which was established in order to deal with atrocities committed during the apartheid era. However, the SATRC-model poses a substantial challenge to the ICC with potentially far reaching consequences. As stated in the preamble to the Rome Statute the ICC is created in order “to bring an end to impunity for the perpetrators of these crimes”. A chief characteristic of the SATRC, however, is precisely its strategy of using conditional amnesties in order to force as many perpetrators as possible to testify. Perpetrators were promised amnesty if they made full disclosure of all crimes committed with a political objective during the apartheid era. The crucial question, then, is how the ICC shall respond to such amnesties if, sometime in the future, a country chooses to adopt the SATRC-model for dealing with an atrocious past. Most commentators agree that legally speaking this is actually an open question as the Rome statute has no mention of truth commissions and there is no court practice to settle the question. Thus, we appear to be forced into a consideration of the philosophical foundations of the ICC. Current literature is found somewhat wanting in this area. To be sure, the rise of restorative justice generally and truth commissions in particular has not gone unnoticed. Most discussions of the issue, however, are held in rather abstract terms listing pros and cons of either traditional criminal justice measures or truth commissions (cf. Rotberg & Thompson 2000). As a result, conclusions tend to take the shape of general endorsements of one or the other. In itself this is surely a worthwhile academic endeavour. But its proper aim is rather one of determining whether it was ultimately the right decision to create the ICC in the first place, or if the international community would do better by promoting, say, truth commissions globally instead. My aim in this paper, however, is more practical. General propositions for or against trials and truth commissions are not really going to offer much help to the ICC prosecutor who is confronted with the concrete question as to how to deal with conditional amnesties 145

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issued in national truth commissions, and who realises that the statute does not provide an answer. To solve this problem we need theories that take into account the current institutional setting surrounding the ICC prosecutor. We need to examine the basic presuppositions justifying the ICC, and we need to ask if a practice of respecting conditional amnesties SATRC-style can be brought into harmony with these presuppositions.5 Declan Roche who has written extensively on restorative justice, is one of the few theorists who have attempted to solve the problem on these premises. Thus, in (2005) he argues that it is possible and indeed desirable for the ICC prosecutor to respect amnesties issued by truth commissions. This, he claims, is the best way to make sense of our current institutional setup. Roche’s suggestion has the merit of being, for lack of better words, immediately likeable. On the face of it, it dissolves the appearance of irresolvable conflict in strict either/or logic and suggests a way to reconcile restoratively justified truth commissions with the presuppositions traditionally invoked in order to justify penal institutions like the ICC. Whether a solution to that effect is ultimately tenable is the question that I undertake to answer here. As will appear, my answer is mainly in the negative. However, I believe that Roche’s failure to establish his conclusion is instructive because it allows us to articulate why these amnesties should not, or should only in highly exceptional circumstances be accepted by the ICC prosecutor. For these more general reasons Roche’s paper provides the focal point for the following discussion. Admittedly, my conclusion has a limited reach. Whether truth commission amnesties are ultimately compatible with the ICC depends, obviously, on the concrete principles invoked in order to justify the ICC. And an exhaustive answer would require, ideally, considering the compatibility of truth commission amnesties with all major theories of criminal justice ethics available to justify the ICC. This, however, is 5 In this sense, the assignment undertaken here resembles a hard case in the Dworkinian sense, that is, a dilemma facing a judge (or prosecutor) when the law proper: “… does not discriminate between two or more interpretations of some statute or line of cases. Then he must choose between eligible interpretations by asking which shows the community’s structure of institutions and decisions – its public standards as a whole – in a better light from the standpoint of political morality.” (Dworkin 1986, p. 255f)

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beyond the scope of one article. Instead, I focus only on the compatibility of respecting truth commission amnesties with justifying the ICC mainly on grounds of crime prevention, and more specifically on grounds of deterrence. Thus narrowing the scope is justified, first, because restorative justice is usually presented and argued in a broadly consequentialist framework. And, as we shall see, this is also the case in the context of mass crimes. We should therefore expect better prospects of reconciling truth commissions with an ICC justified on grounds of prevention, than if we tried to justify it through some version of retributivism. Second, prevention is explicitly mentioned in the preamble to the Rome Statute and deterrence has repeatedly been invoked by politicians and human rights organisations in defence of the ICC.6 Finally, focusing mainly on deterrence is justified because the other factors traditionally invoked in prevention-based theories of punishment (rehabilitation, incapacitation) seem less relevant in the context of mass atrocity. Repeat-offending is hardly the most pertinent problem with regard to the crimes falling under the jurisdiction of the ICC. Perpetrators of genocide are usually not put on trial unless they have lost for good the power which made their misdeeds possible in the first place. In part I, I recapitulate the challenge as it looks from a strictly juristic point of view, and I present an outline of Roche’s suggested solution. In part II, I describe more carefully Roche’s suggestion in terms of positions in criminal justice ethics and argue that the appearance of a compromise between restorative justice and deterrence theory is misleading. In part III, I consider two possible hybrid theories that, if viable, could save Roche’s suggestion, and I show why they run into problems. In the conclusion, I sum up the results of my findings and indicate briefly two areas where the ICC could nevertheless reasonably be expected to deviate from its general obligation to prosecute and punish.

E.g., in 2000 then president Bill Clinton endorsed the ICC in this way: “I believe that a properly constituted and structured International Criminal Court would make a profound contribution in deterring egregious human rights abuses worldwide” (Clinton 2000) 6

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Everything You Always Wanted to Know About Restorative Justice Part I. Outlining a problem – and sketching a solution

As a matter of statute interpretation it is an open question what the ICC prosecutor should do when perpetrators have been granted conditional amnesties in national truth commissions. The Rome Statute is silent on amnesties, and it is known that the issue was sidestepped at the Rome Conference (Dugard 2002, p. 700). Though several passages in the preamble generally emphasise the importance and necessity of prosecuting and punishing perpetrators, a few articles could be interpreted so as to leave open the possibility of respecting amnesties. Article 53 provides the best stepping stone for an argument to that effect.7 Unlike blanket amnesties conditional amnesties granted in truth commissions are not simply attempts to abort the criminal justice process. On the contrary, they are themselves essential elements in an attempt to realise a concept of criminal justice, viz. that of restorative justice. And this is important because Article 53 allows the prosecutor to refrain from investigating a case if “[t]aking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice” (Article 53(1)(c), emphasis added). The interests of justice would traditionally be interpreted in terms of either retribution or prevention but, as Roche remarks, Article 53 does not define the term, and this, arguably, leaves room for restorative justice: A state could argue that ‘the interests of justice’ should be interpreted in a broad sense to include the restorative conception of justice pursued by a truth commission. (2005, p. 568) On this conception, justice is a matter of restoring the values broken by crime. And Roche argues that in this respect truth commissions Thus, I side with Dugard (2002) against Roche in considering the so-called complementarity principle in Article 17 an ill-suited starting point. In contrast to the international tribunals for the former Yugoslavia and Rwanda, the ICC does not have primacy over national courts. It is supposed, instead, to complement them in the sense that the Court shall determine that a case is inadmissible where: “[t]he case has been investigated by a State which has jurisdiction over it and has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute.” (Article 17(1)(b)) However, as Dugard notices (2002, p. 702), in the cases under consideration here states’ decision not to prosecute is indeed the result of an unwillingness to prosecute: they have deliberately granted amnesty instead. 7

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outperform tribunals on at least three important parameters: i) revealing the truth; ii) repairing victims’ harm; and iii) promoting reconciliation (Roche 2005, p. 569). However, in order for truth commissions to reach these goals it is crucial that their amnesties are respected. If perpetrators will be punished by the ICC anyway, they have no reason to expose themselves to the painful process of witnessing. On the contrary, “perpetrators would have an extra incentive not to apply for an amnesty, knowing that any admission they made in the process could become the basis of an ICC prosecution” (Roche 2005, p. 574). And, as Roche further notes: … without the participation of offenders, commissions are limited in the truth they can uncover, and, in turn, the extent to which they can repair victims’ harm and promote reconciliation. (2005, p. 574) In other words, if the ICC disregards these amnesties it will go against the interests of at least restorative justice. For this reason, Roche suggests that the ICC prosecutor should pursue a strategy of cooperation instead. Whenever a genuine truth commission appears8, the ICC prosecutor should respect conditional amnesties granted in the process and select, instead, “…cases to prosecute from the group of individuals who have failed to apply for amnesty, or those whose amnesty applications have been rejected” (Roche 2005, p. 74). Roche remarks that this solution has the added feature of being able to help resolve a classical predicament of traditional theories of criminal justice that seems especially pertinent in the context of punishing mass atrocities. As Roche rightly observes, the ICC generally faces a difficult dilemma as to which perpetrators it should ultimately choose to prosecute: “[P]rosecutions will inevitably be selective; there are too many atrocities and too few prosecutorial resources for it to be otherwise.” (Roche 2005, p. 574) In light of this difficulty, Roche praises

Roche suggests five elements that distinguishes legitimate truth commissions from sham commissions created in order to shield perpetrators from prosecution: “that victims support its establishment; that amnesties are granted conditionally; that widespread participation is encouraged, that efforts are made to assist victims; and that the truth commission contributes to a wider process of reconstruction.” (Roche 2005, p. 575) 8

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his own solution for its ability to provide the ICC prosecutor with suitable transparent criteria for the allocation of resources. Thus, in addition to being fully in accordance with restorative justice, Roche’s solution appear to serve, or at least cohere well with the interests of justice as they are more traditionally conceived in relation to prosecutorial work in a criminal court. It appears, in other words, that Roche has made a convincing case for respecting truth commission amnesties on the basis of Article 53 in the Rome Statute. Part II. Spelling it out: an all-out restorative solution

Roche’s suggestion has the appearance of a reasonable equitable compromise that would respect the national, perhaps even democratic solution of establishing a truth commission on the one hand while upholding some measure of global accountability for mass atrocity on the other. Thus, the solution seems to allow for restorative justice’s peaceful coexistence with traditional criminal justice: Whenever a national truth commission appears the ICC would get to “do its punitive thing” with regard to the uncooperative offenders while the commission would get to “do its restorative thing” with regard to those who cooperate. In spite of appearances, however, I will argue in this section that Roche’s solution to the issue of truth commissions really has nothing to offer those who propose ICC on grounds of deterrence. In fact, when properly spelled out, Roche’s suggestion amounts to handing over to restorative justice all cases affected by truth commissions, that is, cases regarding both cooperative and uncooperative offenders. As it stands deterrence theorists should find nothing of interest. The entire enterprise is through and through an exercise in restorative justice.9

Perhaps Roche would agree to this particular claim. As a matter of fact he is quite silent on the wider theoretical implications of his suggestion. To be sure, he does, as already mentioned, hint at the “ecumenical” character of his solution. And he does sketch how respecting the amnesties would be in general accordance with a restorative conception of justice. But strictly speaking, apart from this, Roche merely suggests a set of actions to be undertaken by the ICC and national truth commissions in conjunction in specific cases of mass atrocities. Which theories of criminal justice would ultimately support which, if any, of these actions is a question that is left mostly in the dark. And, in particular, Roche does not discuss whether this suggested course of action is ultimately reconcilable with the ICC being an institution that has generally made it its goal to prosecute and punish perpetrators. 9

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In order to establish this claim, we need an exact description in terms of positions in criminal justice ethics of the suggestion at hand. This is the task undertaken in this section. Through restorative lenses: The crucial thing to notice about Roche’s suggestion is that it does not in fact constitute a compromise as between two institutions, an ICC and a national truth commission, each pursuing their fundamentally different concept of criminal justice, viz. a punitive and a restorative respectively. As already mentioned, a superficial reading could otherwise leave the opposite impression. But this reading conflates criminal justice theory with concrete measures taken in criminal practice to implement these theories. And it conflates, in particular, restorative justice as a vision of criminal justice with restorative justice as a specific process (mediation, truth telling, etc.). This is to some extent an understandable confusion as some advocates indeed do identify restorative justice thus narrowly with stakeholder based voluntary deliberative processes (cf. Marshall 2003; McCold 2000). However, most modern proponents have abandoned this narrow definition because as Lode Walgrave remarks: “restricting restorative justice to voluntary deliberations would limit its scope – possibly drastically, and condemn it to the margins of the system” (2002, p. 193). First of all, as John Braithwaite puts it a certain amount of coercion is necessary: Very few criminal offenders who participate in a restorative justice process would be sitting in the room absent a certain amount of coercion. Without their detection and/or arrest, without the specter of the alternative of a criminal trial, they simply would not cooperate with a process that puts their behavior under public scrutiny. (Braithwaite 2002c, p. 34) For this reason, restorative justice processes narrowly understood must take place “in the shadow of the axe” (Braithwaite 2002c, p. 36). Furthermore, not all cases lend themselves to stakeholder deliberation even under the shadow of the axe, for instance when one or both parties refuse to participate or when the offender is considered dangerous to society. In these cases, many restorative justice advocates 151

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agree that punishing the offender after legal proceedings can become necessary (see, e.g. Braithwaite 2002c; Dignan 2003; Van Ness 2002; Walgrave 2002).10 It will be justified because it can be seen to further the overall aim of justice: the restoration of values. These considerations apply equally to garden variety criminals in domestic jurisdictions and to perpetrators of mass atrocities falling under the jurisdiction of the ICC. Thus, as we saw above, Roche himself considers the threat of punishment a necessary ingredient in order to render a truth commission possible at all.11 On the most plausible interpretation, then, punitive measures are undoubtedly necessary in a restorative criminal justice system.12 Thus, from this point of view there is in fact no compromise with regard to those cases that the ICC prosecutor should deal with on Roche’s suggestion. On the contrary, the ICC only does what the national legal system would otherwise have had to do itself in order for there to be a truth commission at all. Other than that, the only compromise lies outside the model, that is, in not applying this strategy across the board to each and every case of mass atrocity but only to those where states have decided to pursue justice through a truth commission.13 Through the lenses of deterrence theory: From the point of view of deterrence, on the other hand, it is hard to see how someone who would justify punishment on these grounds could find anything of value in the procedure suggested by Roche. Even if uncooperative perpetrators would ultimately get the same punishment as “ordinary” perpetrators would have gotten had there been no truth commission in the first place, the aggregate deterrent effect of these particular punishments would be Though some prefer to avoid entirely the word “punishment” and speak, instead, of e.g. “restorative sanction” (Walgrave 2002, p. 194). However, the responses they recommend in these latter cases include for instance incarceration and thus resemble traditional punishment for all practical purposes. For a critical discussion of the general problems confronting restorative justice theories on the issue of punishment, see my (Holtermann 2009d). 11 Even archbishop Desmond Tutu who, as chair of the SATRC, vigorously defended a reconciliatory approach to perpetrators, has expressed regret that South Africa never honoured its promises and prosecuted those perpetrators who did not cooperate with the commission (Tutu 2005). 12 And this is also the one on which Roche must rely. 13 Whether that compromise is ultimately feasible is a question that I will deal with in part III below.

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so small as to be virtually nonexistent. In particular, it would not in any way compare with the corresponding effect of a criminal justice system that would punish the same absolute number of perpetrators but instead choose who to punish, i.e., through some randomised mechanism or on the basis of prosecutorial discretion. This is so because even if it is widely acknowledged among all parties that it is impossible to punish all perpetrators equally hard, it is nevertheless possible for the authorities to create a significant deterrent effect if, for example, they succeed in creating sufficient uncertainty among potential perpetrators as to the future consequences of their actions. This logic was famously utilized in the “Federal Day” project initiated by Rudolph Giuliani when he was U.S. Attorney in Manhattan. In the light of scarce resources: [Giuliani] would pick a day of the week at random and on that day, every drug case brought was prosecuted in federal court. On the other six days, those cases all went to state courts. (Hughes 1997, p. 161) As a result, many potential perpetrators, being ignorant of which day had been chosen for federal day, would choose to act on a cautionary principle. They would refrain from offending in order to avoid the risk of suffering the comparatively severe punishment ensuing arrest on federal day, thus fulfilling Giuliani’s goal: “to create a Russian-roulette effect” (Hughes 1997, p. 161, n77) In contrast, the system suggested by Roche does not motivate any considerations of caution on behalf of potential perpetrators. Rather it resembles, in effect, a system that announces in advance which day is federal day. Whenever truth commissions are decided upon, perpetrators have absolutely no reason to feel uncertain about the consequences of their actions. On the contrary, if the ICC should decide to follow Roche’s suggestion and this was to become common knowledge, potential perpetrators would know beforehand exactly which of the two mechanisms they would ultimately end up in, viz., the one they would personally prefer! Thus, perpetrators who prefer witnessing over punishment (presumably the vast majority) would remain completely undeterred by the threat of punishment, simply because they would know that that option would never become relevant 153

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to them. It would be relevant only to those perpetrators who are so untroubled by the prospect of punishment that they prefer it over witnessing. And it seems safe to say that these perpetrators are not the ones most likely to have been deterred by the threat of punishment in the first place.14 I should, perhaps, add that of course not all ICC-punishments would be, thus, void of deterrent effect if Roche gets his way. If I understand him correctly he assumes that the ICC should continue to punish perpetrators of mass atrocities in all cases where truth commissions have not been decided upon. And as perpetrators would not generally know beforehand if the mass atrocities they participate in will be dealt with in one way or the other, these punishments would still produce some deterrent effect in a manner analogue to the Federal day-example, even if only a fraction of all perpetrators would ultimately be punished.15 However, my business in this section has been to determine how to classify in terms of deterrence the use of punishment suggested by Roche specifically against those perpetrators who refuse to cooperate with truth commissions. And it appears that these punishments do not contribute at all to any previously existing deterrent effect, and, thus, the additional harm they do inflict remain unjustified on grounds of deterrence. In sum, it appears that in spite of Roche’s promising remarks on his suggestion providing a suitable criterion for dealing with scarce prosecutorial resources, it turns out to be of no use to proponents of deterrence. In terms of resources, the punishments Roche recommends for uncooperative offenders will be money out the window. And in terms

This discussion perhaps oversimplifies matters somewhat. Presumably it is anything but pleasant for a perpetrator to confess to her sins in front of victims or relatives of victims. The crucial point, however, is that there is a marked difference between the unpleasantness of witnessing and of being punished, and that the unpleasantness of witnessing is too small for it to work as a deterrent, while the other can. Incidentally, this goes for the two options in the “federal day” example as well. And restorative justice proponents must themselves consider punishment more unpleasant than testimony if they are to defend that the threat of punishment will work as an incentive. 15 How much exactly and whether it would ultimately outweigh the costs of producing it is a question that I do not discuss here.

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of ethics, they will be plain wrong. The only way these punishments can be justified is on account of a restorative concept of criminal justice.1617 This is why the appearance of a compromise is deceiving. In Roche’s model deterrence rationales have in fact been dispelled entirely from cases where truth commissions have been suggested by the states involved. The only compromise lies outside the model. From the point of view of deterrence, then, the suggestion comprises of an ICC, that has made it its business by default to punish perpetrators of mass atrocities on grounds of deterrence, but which switches from this default option to a combination of amnesties and punishments justified on grounds of restorative justice whenever truth commissions are presented. Part III. Two possibilities considered

So far I have only spelled out the implications of Roche’s suggestion in terms of criminal justice. My more critical claim presented in this section is that an ICC following this suggestion simply would not make sense. To be sure, it could of course be practically possible for it to act according to these guidelines. But it is hard to see how it could be defended in theory. On the one hand, accepting truth commission-amnesties actively works counter to the aim of deterrence. On the other, we cannot claim that Roche’s solution presents a through and through restorative justice model because it includes a lot of punishments (when the ICC is doing “business as usual”) that are obviously unjustified on these grounds. Actually, it could reasonably be questioned if these exact punishments can even be justified on restorative grounds. At least if the punitive level resembles that of traditional tribunals. Strictly speaking, the procedure Roche suggests justifies punishment only as a means to provide an incentive for perpetrators to testify before a truth commission. Thus, on this account the punishment only needs to be sufficiently hard as to actually serve this purpose. And this could easily imply much milder punishments than those traditionally handed out by mass atrocity tribunals. After all, who would not testify in order to avoid, say, ½ a year in prison? Thus, by hypothesis, punishment superseding this level would be unjustified even on grounds of restorative justice. This, however, is a problem I mention only to put aside here. 17 Of course, this does not in itself tell us whether proponents of deterrence should continue to feel embarrassed about the lack of resources vis-à-vis an overabundance of perpetrators. This, however, is a different question the answer to which depends, essentially, on considerations of equality under law, and which has a bearing, rather, on the general discussion for and against the ICC. But the argument so far has shown that even if we did not have to choose but could punish all perpetrators, it would still be wrong, on the classical position, to punish these specific perpetrators in accordance with Roche’s guidelines.

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In order to save Roche’s suggestion, then, it seems we need a hybrid model. Regrettably, Roche himself does not attempt to construct such a model. In the remaining part of the article I will therefore consider two possible hybrid theories, one that allows for exemptions from the general punitive imperative on grounds of national deliberation, and one that does so if it can be shown in particular cases to lead to better consequences. Deviating from punitive justice on grounds of national deliberation One immediate possibility is that the ICC should respect truth commissions because they are the result of national deliberation. Thus, Roche repeatedly refers to the importance for the ICC of respecting national sovereignty (cf. 2005, p. 568). In addition, he suggests, as a general criterion for discriminating “true” truth commissions from “false” ones that they be supported widely in the countries in question (Roche 2005, p. 575). In a wider perspective, honouring national decisions on truth commissions also strikes a chord with the general anti-paternalistic, stakeholder oriented spirit of restorative justice. Since Nils Christie’s seminal article “Conflicts as property” (1977) it has been a central tenet of restorative justice that conflicts should be given back to the people. In the aftermath of crime we should always look to the stakeholders themselves. They are the true experts. And in the context of mass atrocity this could be interpreted in the direction of putting national interests over the comparatively abstract interests of the international community.18 At the same time this thought could be claimed to find support in the earlier mentioned complementarity principle that testifies to the will of the ICC to grant some reverence for national interests. However, this reading rests on a misinterpretation of the principle. While national decision making might generally be considered a good thing, especially We should be aware, however, of a certain irony attached to this use of the antipaternalism argument. In the context of domestic crime the thrust of the antipaternalism of restorative justice is usually directed against the state. It is the state that steals the conflicts from the people. If the argument is to carry any weight in the context of mass atrocities, however, the state suddenly becomes the bereaved party while the international community becomes the villain. I shall leave aside the intricate question of whether this transfer of the anti-paternalism is entirely unproblematic for proponents of restorative justice.

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when democratic, it is not necessarily so in the context of mass atrocity. On the contrary, the ICC is created precisely because punishing perpetrators of mass atrocity might not always be in the best national interest. Ever too often, as in the case of Rwanda, victims of mass atrocities might be minorities while perpetrators belong to the majority. In addition, it is generally highly possible that national interests will not be in harmony with those of the international community, i.e. in cases of ongoing armed conflict. Perpetrators of mass atrocities often belong to warring factions and the prospect of being punished severely for mass atrocities after the cessation of hostilities has repeatedly been accused of prolonging armed conflict.19 This is often referred to as the “peace vs. justice”-dilemma in the literature on mass atrocities and transitional justice. But as several commentators have emphasized these considerations have already been taken into account when creating the ICC in the first place: [W]here the crimes offend not only national law but international law, the international community also has an interest in the process and it has decided that justice, in the form of prosecution, must take priority over peace and national reconciliation. The establishment of the ICC testifies to this judgement on the part of the international community. (Dugard 2002, pp. 702-703) For these reasons, the ICC is founded on the idea that when it comes to pursuing justice in the aftermath of atrocity crime we should not honour national decisions simply for being national – not even if democratic. Thus, the complementarity principle does not express the will of the international community to transfer powers with regard to deciding what to do, basically, with the perpetrators of mass atrocity; only with regard to who should perform the actions the type of which, i.e. trial and punishment, we have decided basically to deal with elsewhere. And this transmission takes place from recognition that there might be some

For instance, the ICC-prosecutor’s steps to issue an arrest warrant for Sudan’s president has been accused by the African Union of jeopardising the difficult peace process in the region, http://news.bbc.co.uk/2/hi/africa/7517393.stm (accessed on November 26, 2008).

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beneficial effects in justice being meted out not somewhere far away in the Hague but locally where the wounds are felt.20 Roche’s suggestion, on the other hand, leaves the “what to do”question to the nations concerned, not just the “who”-question. And this, it seems, should not be respected simply on grounds of state sovereignty – at least not if we basically condone the judgement behind the establishment of the ICC. Deviating from punitive justice if it leads to better consequences A different possibility would be to claim that by default the ICC should pursue trial and punishment (primarily) on grounds of deterrence – unless a truth commission could reasonably be expected to have better consequences in a specific case of mass atrocities.21 In (2005) Larry May argues in favour of an ICC-prosecutor policy that could be interpreted along the same lines – though he is not as specific as Roche with regard to the exact division of labour between the ICC and truth commissions. May concedes that we should generally choose punishment in accordance with the rule of law. At the same time, however, he draws attention to the classical problem of equity which he claims to be especially important in the context of mass atrocity. As is well known, the principle of legality claims that the law be formulated in general terms and ex ante its application on any individual situation. The problem arises when particular cases come up which the lawmakers did An additional problem is that in the long run, this policy could undermine entirely attempts to deter crime because it could further a dramatic increase in the number of truth commissions at the expence of ICC trials and punishments. If the ICC should respect truth commissions on grounds of national decisions it would create an extra incentive (besides truth, reconciliation and reparation) for national interests to further truth commissions: the prospects of moving citizens beyond the reach of the ICC. That this mechanism is not entirely ficticious was illustrated recently in Uganda. Here, the ICC-arrest warrant for top leaders of the Lord’s Resistance Army led to hastily organized “truth commissions” in order to make the ICC back down: http://www.time.com/time/world/article/0,8599,1682747,00.html (accessed on November 26, 2008) 21 This interpretation would accord well with the arguments put forward by Roche that refer to the superior ability of truth commissions to produce truth, restore victims, and promote reconciliation – while offering no counter arguments against the possibility of producing a deterrent effect through punishment. This could be taken to imply that deterrence is basically acceptable and should be our main target and that we should pursue truth commissions only in those cases where it would actually have better consequences to do that.

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not anticipate and where a verbatim application of the law would yield abhorrent results.22 In such cases, the classical answer going back to Aristotle is to let the letter of the law yield to the spirit of the law. And this is done in the name of equity. In Aristotle’s famous wording: “And this is the nature of the equitable, a correction of law where it is defective owing to its universality.” (Aristotle 1987, pp. 1137b11261127) Transferring these considerations to the context of mass atrocities, May argues that on grounds of equity we should leave to the prosecutor discretional powers to decide occasionally not to proceed: “[A]ppeals to equity will justify the kind of appeal to mercy and broader social good that is involved when amnesties are granted instead of holding criminal trials …” (May 2005, p. 243) And these remarks could be interpreted so as to imply that the prosecutor should stand ready to acknowledge amnesties issued by national truth commissions whenever these can be seen to lead to better consequences in individual cases. I believe, however, that this will not do either, basically because the exception clause is so strong that an ICC following this maxim would never get around to punishing anybody and, thus, neither to deter potential perpetrators. Only a misguided deterrence theorist would claim that if any one case is considered in isolation does the deterrent effect of applying trial and punishment always or even for the most part outweigh the beneficial consequences of pursuing some alternative course of action, i.e. mediation processes or even blanket amnesties. And more importantly, she would not even have to make this claim in order to justify punishment mainly on grounds of deterrence. On the contrary, she could readily agree that it might even be highly possible that punishment in any one case considered in isolation would lead to worse effects than any of the mentioned alternatives. First of all, it is indeed possible that truth commissions do outperform trial and punishment on the parameters Roche mentioned:

Thomas Aquinas famously considers one such case: “Suppose a siege, then a decree that the city gates are to be kept closed is a useful general measure for the public safety. Yet say some citizens among the defenders are being pursued by the enemy, the cost would be heavy were the gates not to be opened to them. So opened they are to be, against the letter of the decree, in order to defend that very common safety the ruling authority had in view.” (Thomas 1964, 1a2æ. 96, 6)

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revealing the truth; repairing victims’ harm; and promoting reconciliation.23 Furthermore, as any criminology textbook will readily confirm, the direct consequences of carrying out any single case of trial and punishment are most likely to be overwhelmingly negative. The punishment itself, of course, inflicts a certain amount of pain on the offender – as it is meant to do. Furthermore, it is empirically well established that punishment has a propensity to produce a range of negative side effects like defiance, social stigmatization, marginalization, etc (cf. e.g. Braithwaite 1989). On top of this, we have the direct costs to society at large. A trial in itself is a costly affair, and the enormous price of running a penal system is a constant reminder that we need very good reasons for choosing this way of dealing with crime.24 And if we move the perspective back in time to a point before the perpetrator was even arrested, the immediate consequences of insisting on trial and punishment seem even worse. If the perpetrator is still at large after having perpetrated, the prospect of prosecution and punishment obviously gives her a strong incentive to resist arrest, if necessary through continued perpetrating. A fact which in the context of mass atrocity crime actually amounts to the earlier mentioned “peace vs. justice”-dilemma.

Though, this presumption should by no means be considered a matter of course as advocates of restorative justice tend to do. Several critics, notably Acorn (2004) and Brudholm (2008), have argued convincingly that truth commissions can actually intensify victims’ harms rather than repair them. Thus, the agenda of forgiveness and reconciliation habitually (and perhaps even inherently?) associated with truth commissions has a tendency to render illegitimate and guilt-ridden victims’ natural and morally legitimate feelings of resentment. In addition, when comparing trials and truth commissions there is a tendency to describe the former in implausibly restrictive terms while the latter is described in broad inclusive terms. Thus, e.g. Roche emphasises that genuine truth commissions should not simply settle for emotional reparation of victims’ harms that might become available through perpetrator testimony. They should also perform symbolic acts of reparation and provide financial reparation to victims (2005, p. 578). However, these measures are surely equally available whenever trial and punishment has been chosen as the appropriate way of dealing with the past. In fact, in accordance with the Rome Statute’s Article 79 a Trust Fund for Victims was founded in 2006. 24 The 2008 budget appropriations for the ICC alone amounted to €90,382,100 (International Criminal Court 2008b, p. 18).

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At the same time, deterrence, on any reasonable interpretation of it, is an effect that, if real, it takes more than one case of punishment to establish. In and of itself, one act of punishment does not bring about substantial changes in potential perpetrators’ calculations as to the possible effects of their actions. If threats on behalf of the judicial authorities are widely trusted the punishment itself is superfluous as a means to bring about the change. If they are not so trusted,25 more than one successful case of trial and punishment is needed. One swallow does not make a summer, and, by the same token, in distrustful contexts, individual instances do not establish a deterrent effect in and of themselves.26 They do so, only conditional upon them being parts of a larger set of similar actions on behalf of the judicial authorities in response to relevantly similar kinds of criminal behaviour. Recalling the immediate negative consequences of punishment, we thus have good reason to believe that the consequences of applying trial and punishment to any single criminal case will be considerably worse than if we apply some version of restorative justice or even blanket amnesty. And this is true of traditional domestic as well as of international criminal justice. For these reasons, any argument in favour of punishment on grounds of deterrence cannot be sustained if it is made purely on a case by case basis. If we restrict our view to an assessment of the immediate consequences of the singular application of punishment, it might very well be the case that we should never punish in any particular instance, but find some other alternative (possibly a version of restorative justice). In the hybrid rationale under consideration here, the exempting clause would simply always be satisfied. Thus, in effect, an ICC following this maxim would be incapable of establishing any significant deterrent effect at all. Incidentally, this also explains why May’s comments on equity are misleading. As described above, equity, in the Aristotelian tradition to which May refers, is only invoked when cases come up which the lawmakers did not anticipate and where a verbatim application of the law would yield abhorrent results. However, there is nothing As in the case of the ICC whose capacity to actually prosecute and punish even a small fragment of perpetrators of mass atrocities is often questioned by its critics (cf. e.g. Tallgren 2002). 26 Otherwise, we would be home free by now considering those already punished in ICTY and ICTR. And we obviously are not.

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unanticipated about the possible costs of punishment over truth commissions in any single case. It is, of course, always a tragedy when mass atrocities do take place, but however cynical it may sound these particular losses are in a sense calculated costs of upholding a credible threat of punishment toward all potential perpetrators. As earlier mentioned, these costs can be found in any criminology textbook. Thus, if a deterrence-based defence of punishment is to make any sense at all, it must be because these losses are believed to be outweighed in the long run by the possible gains in terms of reduced future perpetration.27 I should underline that nothing of what I have said here amounts to the claim that it is in fact possible to establish any significant deterrent effect through the use of punishment.28 I only observe that if we generally propose the ICC in the belief that it can help prevent mass atrocity through deterrence, fulfilling this ambition is inconsistent with choosing restorative justice whenever it will lead to better consequences in particular cases. If, on the other hand, one does not find the thought of such an effect at all plausible one should feel equally dissatisfied with a solution that suggests leaving cases where truth commissions have not been proposed to traditional trial and punishment. In that case one should simply oppose the entire creation of the ICC. Alternatively, one could argue that the ICC should be turned into an institution that simply promotes reconciliation and restorative justice in the aftermath of mass atrocity through the global imposition of truth commissions. But in that case it would seem appropriate to strike the word prevention from the preamble and settle for words like restoration and reconciliation. In Dworkinian terms we would then have given up on the hard case at hand. We have abandoned entirely the attempt to provide an interpretation that “shows the community’s structure of institutions and decisions in a better light from the standpoint of political morality.” (Dworkin 1986, p. 255f) Instead we have proposed a whole new institutional set-up. Again, from the point of view of general philosophy this is surely a legitimate undertaking. But it is useless as a piece of advice to the ICC prosecutor qua ICC prosecutor.

See also, (Dugard 2002, pp. 702-703) quoted above. As a matter of fact I do believe it possible in the long run for the ICC to create a general deterrent effect strong enough to justify the costs of trial and punishment. Regrettably, this effect will never be so strong as to satisfy the post-Holocaust promise “Never again!” but less will definitely do, cf. Holtermann (2009f). 27

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I have discussed a possible future challenge facing the ICC in the shape of conditional amnesties granted in national truth commissions. Focal point of the article has been Declan Roche’s claim (presented in part I) that the ICC can enter a path of cooperation and acceptance of amnesties without jeopardizing its fundamentals – that indeed a compromise is both possible and desirable on the Rome Statute. I have found, however, that Roche downplays the controversiality of his suggestion, and that, when properly spelled out, it does not constitute a viable road for the ICC. First, I have shown (in part II) that on Roche’s suggestion deterrence-based theories of criminal justice have in fact been dispelled entirely from cases of mass atrocities dealt with by truth commissions. The suggested course of action is instead restorative justice through and through. Thus, from the point of view of deterrence, what Roche in fact suggests is that the ICC should generally punish on grounds of deterrence, except when truth commissions have been suggested in which case the court should switch to a restoratively justified combined strategy of amnesties and punishment. Secondly, I have considered (in part III) two hybrid theories that, if plausible, could justify this blend of strategies and criminal justice rationales. However, neither of these could ultimately be sustained. For that reason I conclude that Roche’s suggestion of accepting conditional amnesties is unsound. He has not managed to provide a convincing reason to deviate thus systematically from the general punitive imperative associated with the ICC. But perhaps one question remains: are there absolutely no situations in which the ICC should refrain from prosecution and punishment and e.g. accept truth commission amnesties if they are available? Two scenarios come to mind. First, Roche mentions, in passing, that under a variation of the cooperative approach suggested by him: … the ICC prosecutor may agree to abide by a general policy of respecting truth commission amnesties, but insist on the right to prosecute a small number of the most serious cases. (2005, p. 575) Now Roche does not define “a small number of the most serious cases” but on at least one interpretation this could be a reasonable suggestion. 163

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On this interpretation, however, it is no longer merely a variation but an entirely different and in fact uncontroversial suggestion. The ICC is necessarily a “big fish court”. First of all, as earlier mentioned resources are limited in comparison with the number of perpetrators of atrocities. Furthermore, the concepts of individual guilt and responsibility, notoriously controversial in the context of mass atrocities but simultaneously necessary preconditions of criminal trials, arguably make most sense when applied to perpetrators in the ruling elite.29 For these reasons, Roche’s modified suggestion actually only repeats the obvious: that ICC trials cannot and should not tell the whole story. In the aftermath of mass atrocities, international prosecutions have to be supplemented by national initiatives. And using truth commissions against “small fish” could be one of those initiatives. Secondly, there is obviously one last sense in which the ICC prosecutor should be allowed to refrain from prosecution, viz. if we have reason to believe that prosecution and punishment will lead to disastrous consequences. Kantianism aside, ethical imperatives are surely best understood in an other things being equal-fashion. It is not only a sign of the arrogance of power but equally of moral perversion to subscribe to the motto of Roman emperor Ferdinand I: “Fiat iustitia, et pereat mundus” (Let there be justice, though the world perish). If by justice we mean strict application of black letter law, then the only maxim that makes sense is this: “Fiat justitia si mundus non periet” (Let there be justice unless it will make the world perish). In the context of mass atrocity this is the true sense of equity. And this, in fact, is just a formula of justice in a deeper sense. The sense that should rightly be applied when reading Article 53 of the Rome Statute.

Acknowledgments I would like to thank Jeppe von Platz, Jesper Ryberg and an anonymous reviewer at Res Publica for extensive comments on an earlier version of this article.

Some eaven question that these concepts make sense at all in the context of mass atrocities (Tallgren 2002, p. 573). This claim, however, takes us back to a general discussion of the ICC altogether, and this is not the issue here.

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Chapter 7 Philosophical Misconstruals in the Advocacy for Restorative Justice

Any putatively new justice idea – however radical – will contain residual bits of the old. – K. Daly

Abstract: Proponents of restorative justice repeatedly portray their own theory as a new paradigm in criminal justice theory. The republican theory of dominion proposed by John Braithwaite and Philip Pettit is held by many to be the best candidate for a theory that can provide the philosophical underpinnings of this view. In this article I investigate these claims. In particular, I investigate the relationship between the theory of dominion and what Braithwaite and Pettit describe as the “dominant variety of consequentialist criminology”. I argue that dominion is in fact considerably less controversial than Braithwaite and Pettit (and congenial proponents like Lode Walgrave) would have us believe. They exaggerate the differences, partly by distorting the kind of harm preventionist rationale that can most plausibly be ascribed to the traditional system, partly by overstating the achievements of their own theory. Properly understood, the promotion of dominion is wholly consistent with the harm preventionist goal pursued by the traditional criminal justice system. Granting this substantial coincidence, I finally consider some reasons why we should perhaps be sceptical with regard to the ability of restorative justice to better pursue these goals in practice. For this discussion, I focus primarily on Walgrave’s theory of restorative justice. Keywords: Restorative justice; consequentialism; dominion; freedom as non-domination; harm preventionism; crime preventionism; Braithwate, John; Pettit, Philip; Walgrave, Lode

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Introduction

Proponent of restorative justice Lode Walgrave writes in a recent book: Restorative justice is based on a different paradigm, inspired by a clearly distinct philosophy … It is not possible to judge different paradigms with the same criteria, just as it is not possible to play American football with the rules of soccer. (Walgrave 2008, p. 155) Those familiar with the literature on the subject will know that these words strike a recurrent theme in the advocacy for restorative justice.1 But they will also know that the claim to the status as new paradigm has been increasingly complicated by the fact that not all criminal cases lend themselves equally well to voluntary processes between stakeholders. Even if given absolute powers to reconstruct the criminal justice system according to restorative wishes, there will inevitably be some cases that are unfit for such processes; cases involving, for instance, openly uncooperative, hardened and dangerous offenders. This, in turn, has led to a definitional debate between those ‘purist’ proponents who want to reserve the term restorative justice for voluntary processes (cf. e.g. McCold 2000), and ‘maximalist’ proponents who aim to create a comprehensive restorative justice system and therefore stand ready to include in the definition “non-deliberative schemes, and even judicial sanctions with a view to reparation” (Walgrave 2008, p. 20).2 Staying, for present purposes, with the maximalist conception of restorative justice, it is clear that, however limited, any such embrace of judicial sanctions challenges the paradigm claim. As a result, determining more precisely the general relationship between The paradigm claim in relation to restorative justice originates with Zehr (2005 [orig. 1990]). See also, e.g. Johnstone (2002). Other proponents like Braithwaite and Pettit do not use the paradigm claim but nevertheless emphasise the need for something wholly original in replacement of traditional criminal justice: “[I]f consequentialism is to be vindicated, then we need a very different account of the target which the criminal justice system ought to promote.” (Braithwaite & Pettit 1990, p. 53) 2 Besides Walgrave (e.g. 2002, 2008) the group of maximalists counts also Braithwaite (e.g. 2002a, 2002c), Dignan (2002, 2003) and Van Ness (2002) among others. 1

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restorative justice and traditional criminal justice has occupied a central place in recent debates on restorative justice. A striking feature of these debates, however, is the virtual absence of what used to be considered a key player in the field of criminal justice, viz. consequentialist punishment theories in the tradition descending from Bentham and Hart that justify punishment primarily because of its ability to realise classical preventionist goals such as deterrence, incapacitation and rehabilitation. As a rule the general untenability of such preventionist considerations seems simply to be considered a matter of course. In the advocacy for restorative justice they are habitually brushed aside and the rhetorical focus and polemical edge is directed, instead, at retributivism, thus virtually implying that this theory represents the only possible alternative. One striking expression of this tendency is the way proponents of restorative justice tend to use the term retributivism interchangeably to designate not only a particular philosophical theory on how best to justify punishment but also the specific, punitively oriented criminal justice system which the campaign for restorative justice aims to replace.3 Thus, it is simply disregarded that these two areas raise questions that are analytically distinct and that other (e.g. consequentialist) philosophical justifications of the criminal justice system are on offer. The tendency to forgo preventionist consequentialism is further illustrated by the fact that when various compromises and hybrid positions have been suggested it has almost exclusively been in the border region between retributivism and restorative justice (cf. e.g. Daly 1999; Duff 2003; Roche 2007; Zedner 1994). To be sure, these suggestions have for the most part been kindly but firmly declined by proponents of restorative justice. In the words of one prominent proponent: “[T]he marriage of retribution and restorative justice is not a wedding we should want to attend.” (Braithwaite 2003b, p. 18) These proponents prefer instead, in accordance with the general empirical predisposition and practical bent of the movement, to stay within a broadly consequentialist outlook in their attempt to deal theoretically with those cases that resist treatment in voluntary deliberative processes. But they do not seem, in any case, to view this as an occasion to revive the old crime preventionist rationales of punishment. Instead, 3 This is neatly illustrated in the index to Walgrave (2008, p. 236) where the entry on punitive justice simply redirects to retributivism. Cf. also e.g. Zehr (2005).

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they behave as if a wholly new consequentialist justificatory framework is needed. In one sense, this general development is perfectly understandable. After all, good old-fashioned consequentialism has fallen on hard times in criminal justice theory during the last three to four decades. And it can hardly have taken much persuasion to make modern retributivists assume the role as “last man standing” after the arduous fighting with its old enemy in the latter half of the twentieth century.4 At the same time, being the new kid on the block, restorative justice has obviously had an interest in distancing itself from the traditional consequentialist positions in the field and in belittling their general significance. Hence, the strategic importance of the new paradigm claim. Revitalising substantial portions of the old consequentialist framework in order to deal with cases that resist treatment in deliberative processes would seriously challenge that claim. Regardless of the understandable motivation, however, I believe that the negligent treatment of classical preventionism and narrow focus on the relationship between retribution and restorative justice is very unfortunate. First, because it often leads to a confusion of questions of philosophy and practice that are analytically distinct and ought to be kept apart.5 Second, because it makes it too easy for those consequentialist restorativists who refuse “to attend the marriage of retribution and restorative justice” to get away with the claim that restorative justice is “inspired by a clearly distinct philosophy” and that it should therefore be judged by wholly different criteria as Walgrave explicitly claims. For these reasons, my goal in this article is to clarify the relationship between the philosophy of restorative justice and classical preventionist consequentialism. Before I proceed, however, this calls for a methodological consideration. As an object of theoretical reflection restorative justice is anything but simple. As most commentators readily agree, the term covers a wide variety of theoretical traditions and practices and it is highly doubtful if any one feature can be singled out that they all share in common. Occasionally, this has the unfortunate consequence of turning For an impression of the triumphant mood found in the retributivist camp, see Davis (2009). For a critique, see Holtermann (2009a). 5 Cf. also Daly and Immarigeon: “[A]dvocates unify the punishment goals of just deserts, incapacitation and deterrence under one heading of the “retributive” model. This is inappropriate and misleading.” (1998, p. 33) 4

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theoretical discussions of restorative justice into a rather unfruitful game of hide-and-seek where proponents dodge criticism because it fails to address “the real” restorative justice whatever that might be. In order to avoid any such response I shall focus my discussion primarily on one particular, albeit highly influential philosophical argument for restorative justice, i.e. the combined criticism of preventionism and defence of so-called dominion or freedom as non-domination as it is launched by Braithwaite and Pettit in Not Just Deserts : A Republican Theory of Criminal Justice (1990). Braithwaite and Pettit’s discussion has the merit of being both unusually explicit about the reasons for rejecting traditional consequentialist considerations and of addressing directly the more fundamental philosophical questions facing restorative justice. In addition, their discussion and general endorsement of dominion as a comprehensive target for restorative justice has been highly influential, both in their own subsequent writing (cf. e.g. Braithwaite 2002a, 2002c; Braithwaite & Pettit 2000; Pettit & Bratihwaite 1993) and in the writing of Lode Walgrave (cf. e.g. 2000; 2002, 2005, 2008).6 Thus, this is no doubt “the clearly distinct philosophy” Walgrave has in mind. Hopefully, consequentialist proponents of restorative justice who do not feel touched by the criticism launched here against Braithwaite and Pettit’s discussion of preventionism and defence of dominion will be moved to clarify why it should have no bearing on their particular preferred version of restorative justice. My argument proceeds as follows: In part I, I introduce the criticism of preventionism presented by Braithwaite and Pettit; in part II, I discuss the so-called insatiability charge launched by them and argue that it is a straw man fallacy; in part III, I present the concept of dominion, and I argue, against Braithwaite and Pettit, that it is wholly consistent with preventionism; in part IV, I consider and end up rejecting the claim that dominion, unlike traditional consequentialist targets, can never justify punishment of the innocent; and finally, in part V, I argue that, now judging by the same consequentialist criteria, we should be sceptical

Walgrave repeatedly acknowledges his intellectual debt on the issue of dominion to Braithwaite and Pettit, and he does not indicate substantial points of disagreement. I shall therefore focus mainly on their account of the concept. Only in part V shall I return to the specific use of the concept which Walgrave makes.

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with regard to the ability of restorative justice to outperform traditional criminal justice. I. Braithwaite and Pettit on preventionism

In (1990), Braithwaite and Pettit discuss a number of possible overarching goals that could plausibly be ascribed to the criminal justice system. As a general framework for their discussion, they first “identify three desiderata which every consequentialist theory of criminal justice, in particular every consequentialist target, ought to exemplify.”7 (Braithwaite & Pettit 1990, pp. 41-42) Subsequently they examine the possible candidates vis-à-vis these desiderata before they propose their own consequentialist target, i.e. dominion or freedom as non-domination. The three desiderata are as follows: i)

ii)

The target should itself be uncontroversial, at least in “Westernstyle democracies of the modern world” (Braithwaite & Pettit 1990, p. 42). This desideratum is more or less silent as to how precisely the criminal justice system should be designed. Instead, it focuses on the fundamental character of the target, and excludes “any candidate which appeals to a conception of the good – say, a religious view of the point of life – that is radically incapable of commanding consensus in a pluralist society.” (Braithwaite & Pettit 1990, p. 42) The target should furthermore generate an allocation of rights that is: i) uncontroversial; and ii) so-called stable. Uncontroversial rights are such, roughly, as are generally accepted in modern Western rules of law, i.e., for instance, “the right of a party known to be innocent not to be penalized for a crime, the rights of a person charged with a crime to a fair trial”. (Braithwaite & Pettit 1990, p. 43) The stability component, on the other hand, regards the way these rights are applied to

Braithwaite and Pettit defend the strategy of thus presenting three desiderata as being in accordance with John Rawls’ idea of evaluating normative theories according to their ability to achieve reflective equilibrium (Rawls 1971). I am aware that this strategy can be challenged, but I shall not pursue the question further in the present context – partly because I am fundamentally sympathetic to the general idea of using reflective equilibrium as a yardstick for normative theory. As we shall see, however, I do have some objections to the particular way Braithwaite and Pettit construe the second and the third desideratum. 7

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iii)

individual cases: “A target would motivate an unstable allocation of rights if it provided a reason for establishing the rights in law, but failed to provide a reason why the criminal justice authorities, or indeed any other agents, should take the rights seriously.” (Braithwaite & Pettit 1990, p. 43). From the use Braithwaite and Pettit make of the stability requirement it is clear that they take it to imply, in fact, the absolute inviolability of the rights question. In considering whether this desideratum is satisfied they focus primarily on the ability of satisfying the target while honouring the rights of the innocent not to be punished. The target should be satiable by which Braithwaite and Pettit mean that the target should “motivate respect for uncontroversial limits on the powers associated with the criminal justice system” (Braithwaite & Pettit 1990, p. 45). For an apt expression of this desideratum Braithwaite and Pettit point to the prohibition in the US Constitution against imposing “cruel and unusual punishment”.

As far as I can see, there is some redundancy between the second and the third desideratum in Braithwaite and Pettit’s definition that needs to be sorted out. To be sure, the stability component of the second desideratum is a distinct part of that desideratum. Stability, as they describe it, concerns not the general contents of the rights (i.e. what criminal justice rights do we have) but their mode of application to individual cases by the agents of the criminal justice system (inviolable or not?). But the other dimension of the second desideratum, i.e. the uncontroversiality requirement of the rights motivated by the target, concerns the content of these rights. And this aspect of the desideratum is, as far as I can see, also covered by the satiability desideratum as Braithwaite and Pettit describe it. Criminal justice rights entail corresponding duties on the part of the authorities (and uncontroversial rights entail, of course, uncontroversial duties). Such duties, however, are essentially a matter of limits imposed “on the powers associated with the criminal justice system”. And determining the controversiality or lack thereof of such limits as would be motivated by a candidate target, was precisely what the satiability desideratum was supposed to do.

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In other words, it seems as if all criminal justice rights that are uncontroversial will also, eo ipso, constitute “uncontroversial limits on the powers associated with the criminal justice system”.8 Perhaps, as Braithwaite and Pettit contend, not all transgression of such uncontroversial limits will necessarily constitute a transgression of uncontroversial rights. Putting a police officer on every corner, to use their example (1990, p. 44), will probably exceed uncontroversial limits but it is unclear if it violates any individual citizens’ rights. So we might say that there are two different kinds of limits to the powers of the criminal justice system: one that is expressed in the rights of individual citizens and one that constitutes other duties on behalf of the system to restrain itself. But nothing in Braithwaite and Pettit’s discussion turns, as far as I can see, on the ability to express this distinction. And it certainly does not make things clearer to have the former kind involved in both criteria as it is in Braithwaite and Pettit’s account. In the following discussion I will therefore exclude the question of the content of criminal justice rights (i.e. uncontroversial or not) from the second desideratum and reserve this question for the third satiability desideratum. The second desideratum, then, will strictly be a matter of stability in Braithwaite and Pettit’s technical sense, i.e. a matter of the mode of application of the individual criminal justice rights.9 In fact, I believe this way of distinguishing between the two desiderata coheres better with the general use Braithwaite and Pettit make of them in their discussion of various candidate targets for the criminal justice system. This overlap is also made clear, I believe, by the examples used by Braithwaite and Pettit. Thus, they mention, as one example of insatiability, a system that “prosecutes on the basis of possible rather than probable guilt” (Braithwaite & Pettit 1990, p. 44). But this is arguably the same as not respecting the “right of a party known to be innocent not to be penalized for a crime [or] the right of a person charged with a crime to a fair trial.” In addition, “the limit which prohibits the imposition of … ‘cruel and unusual punishment’” (Braithwaite & Pettit 1990, p. 45) constitutes what most people would regard as an uncontroversial criminal justice right, i.e. what Braithwaite and Pettit place under the uncontroversiality dimension of the second desideratum. 9 Thus understood the satiability/stability-distinction mimics the distinction proposed by Rawls between questions regarding “a practice of rules to be applied and enforced” (Rawls 1955, p. 5) and questions regarding “the application of particular rules to particular cases.” (Rawls 1955, p. 5) Unlike Rawls, however, Braithwaite and Pettit insist that the same (consequentialist) rationale must be capable of answering both kinds of questions. 8

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I shall focus here only on Braithwaite and Pettit’s discussion and rejection of so-called preventionism. Or, to be more precise: Braithwaite and Pettit distinguish between crime preventionism and harm preventionism, and I shall focus initially only on their discussion of crime preventionism and only later (in section III) return to their discussion of harm preventionism. I do so, partly because Braithwaite and Pettit themselves focus predominantly on crime preventionism – a choice they justify by crime prevention’s alleged status as “[t]he goal most frequently ascribed to the criminal justice system” (Braithwaite & Pettit 1990, p. 45) and “the dominant variety of consequentialist criminology” (Braithwaite & Pettit 1990, p. 46) – and partly because Braithwaite and Pettit’s conception of harm prevention has a somewhat ambivalent relation to their own suggested target for the criminal justice system, i.e. dominion. Braithwaite and Pettit break down the target of crime prevention into its traditional sub-goals: incapacitation, rehabilitation and deterrence of potential offenders (Braithwaite & Pettit 1990, p. 45)10, and they claim that it fails as a plausible target for criminal justice theory because it fails to satisfy both the second and third of the above desiderata. It is, as they dramatically put it, “outrageously destabilizing and insatiable.” (1990, p. 45).11 Allegedly, crime preventionism is in such flagrant breach of the second desideratum basically because pursuing crime prevention can, at least occasionally, lead to punishment of the

I believe Braithwaite and Pettit repeat a classical sin of omission in criminological writings on the sub-goals pursued by the criminal justice system. Besides the abovementioned they ought to count among the sub-goals of crime prevention also what has been described as “the “displacement function of law”, i.e. the ability of punishment to “remove some of the temptation to retaliate” (Gardner 1998, p. 31) This displacement function generally plays little role in most criminological writings. But in political philosophy and history, the state’s ability to break off endless vendettas by taking the right and the power to right serious wrongs out of the hands of individuals is traditionally considered a crucial part of its justification. Accidentally, this is precisely the historical role assigned to modern rules of law and state punishment that proponents of restorative justice have challenged most vigorously. 11 Analogue passages can be found in other restorative justice writings, cf. e.g. Walgrave (2005, 2008, p. 54).

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innocent.12 It is in breach of the third desideratum because it places no limits on the legal means invoked in order to prevent crimes: All the preventionist aims are as likely to motivate excessive penalties as they are to encourage intuitively acceptable ones. If there is reason to incapacitate an offender for a limited period, why not incapacitate her so long as she remains a potential nuisance? If there is reason to rehabilitate her, why not keep her under treatment for as long as the job requires? If there is reason to deter potential offenders by punishing actual ones, why not let the punishment increase to an ever more effective deterrent? Boiling oil for bicycle thieves. (Braithwaite & Pettit 1990, p. 46) The structural problem with the target of crime prevention is simply that it exerts no pull whatsoever in the direction of moderating the punitiveness of responses to crime: “There is no crime involved in raising the severity of punishment and so crime reduction can press us towards controversial sorts of punishment.” (Braithwaite & Pettit 1990, p. 47) Thus, because of its alleged breach of the second and third desideratum, Braithwaite and Pettit reject that crime prevention can play the important role of a comprehensive goal for the criminal justice system. A final passage sums up the harsh judgment and makes it crystal clear that anything like crime prevention presents a dead end for consequentialist criminal justice theory: [I]t is clear that preventionism has absolutely no chance of attaining reflective equilibrium. It may invoke a target that looks uncontroversial itself but the target fails to vindicate the uncontroversial rights and limits that are widely recognized in the area of criminal justice. The target is at open war with our second and third desiderata.” (Braithwaite & Pettit 1990, pp. 46-47) No wonder we need a whole new paradigm.

A classical exposition of this objection is the fictitious example of the sheriff who only by framing an innocent man can avoid riots that are likely to kill hundreds of people (McCloskey 1957).

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Philosophical Misconstruals in the Advocacy for Restorative Justice II. Discussion of the insatiability charge – the misconstrual of crime preventionism

I believe, however, that this judgment is fundamentally mistaken, and that it rests on a wholly misguided reading of the rationale that can most plausibly be ascribed to proponents of crime prevention. This reading is most clearly expressed in Braithwaite and Pettit’s argument for the alleged breach of the third desideratum, and I shall therefore focus initially on this part of their argument. Only later (in part IV) shall I return to the second desideratum. To cut a long story short, I believe that Braithwaite and Pettit’s argument with regard to the third desideratum constitutes a straw man fallacy. Crucial to the argument is the claim that crime preventionism is wholly one-sided. In their depiction of the crime preventionist rationale, lawful punishment has no independent negative value since, by definition, it does not constitute a crime – however “cruel and unusual”. Therefore, no reasons are available to crime preventionists (as opposed to e.g. harm preventionists, cf. below) to show any moderation whatsoever in their use of punishment as a crime preventive measure. This is precisely what is implied by the line of rhetorical questions posed to crime preventionists in the above quote (p. 174). And this, according to Braithwaite and Pettit, is the central reason why crime preventionism is in such blatant breach of the satiability desideratum. But this is obviously absurd. In Braithwaite and Pettit’s interpretation, then, crime preventionists generally believe that crime prevention ought to be pursued relentlessly as the one and only goal for state action; that is, as a kind of “categorical” imperative: Act only in such a way as to minimise crime!13 But if indeed anybody did pursue crime prevention in this categorical manner we would regularly hear completely different and much more radical recommendations than the Braithwaite and Pettit are not alone in the advocacy for restorative justice in portraying the rationale behind the traditional criminal justice system in these terms. On the contrary, it is fairly common to find proponents of traditional criminal justice portrayed as mindlessly pursuing some kind of fetish for unconditional law abidance. For instance, Zehr contrasts restorative justice with something he calls utilitarianism in the following way: “One purpose of both punishment and reparation is to send messages. The utilitarian aim of punishment is to say to offenders, ‘Do not commit offenses because they are against the law.’ ‘Those who do wrong deserve to get hurt.’ Reparation or restitution seeks to send a different message. ‘Don’t commit offenses because it harms someone. Those who harm others will have to make it right.’” (Zehr 2005, p. 199)

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ones we actually do hear in debates on criminal justice. Not only would we have calls for boiling oil for bicycle thieves. We would have calls to end the problem of crime once and for all through, for instance, nuclear eradication of the human species (passed in parliament) or a blanket decriminalisation of all human behaviour. How is that for ending crime in a jiffy! Of course, we never do hear such outrageous suggestions not even from the most tallionic hardliners, and I believe this should have led Braithwaite and Pettit (along with other proponents of restorative justice who propagate views to the same effect) to ask whether, in portraying crime preventionists as monomaniacally pursuing a wholly insatiable target, they had perhaps failed to interpret their opponents with the kind of charity that could reasonably be expected in theoretical discussions.14 The strategy could have been excused were Braithwaite and Pettit only surveying logically possible positions in the theoretical landscape in order, for instance, to articulate more clearly their own stance. But they clearly are not. Thus, they write, as earlier mentioned, of crime preventionism as being “the dominant variety of consequentialist criminology” (Braithwaite & Pettit 1990, p. 46) and refer to what this variety of criminology focuses on “as a matter of fact” (Braithwaite & Pettit 1990, p. 47). Characteristically, however, they do not mention any names of theorists that have actually proposed such outrageous views, and I must confess that I rather doubt they can be found. I doubt that we can find, not simply populist politicians who deserve no place in theoretical discussions but actual thinkers of criminal justice who do not at least occasionally show concern for the cost-side of preventing crime through the punishment of offenders, e.g. by referring to the importance of simultaneously respecting the ban on “cruel and unusual punishment”. I would concede that on occasion some preventionists do speak as if their only care in the world was the prevention of crime. But this fact can hardly support the kind of categorical reading that leads to the insatiability accusation. On the contrary, such talk can best be

A classical and useful definition of the principle of charity is found in Davidson (1980): “[W]e will try for a theory that finds him consistent, a believer of truths, and a lover of the good (all by our own lights it goes without saying).” (p. 222)

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interpreted by reference to the larger context which frames all talk of criminal justice and which should therefore tacitly be presupposed. Consider, by way of analogy, a football coach who underlines to her players the immense importance of not having goals scored against the team in today’s match. Here we may safely assume that none of the players will respond to her instructions by defending their own goal with guns or by building brick walls in front of it. Being competent language users (and football players) they will interpret the coach’s instructions as tacitly implying that they should avoid having goals scored against them in a manner consistent with the rules of football (give or take an occasional professional foul). And they would do so because only when goals are avoided in this manner does it contribute to the overall goal of playing football, i.e. winning (or sometimes just not losing). However, observing the principle of economy that arguably governs cooperative conversation they tacitly omit this additional piece of information in order not to drown conversation in superfluous, timeconsuming repetitions.15 By the same token, we may safely infer from the fact that no serious preventionists actually do propose anything remotely resembling “boiling oil for bicycle thieves” in spite of talking mostly of the importance of reducing crime, that the crime preventive talk should not be interpreted as a kind of categorical imperative. On the contrary, any moderately charitable interpretation tells us that the reduction of crime must be a sub-goal pursued only because of its assumed conduciveness to some overarching goal in precisely the same way deterrence, rehabilitation and incapacitation are sub-goals in order to further crime prevention. The central question, then, becomes what overriding goal could possibly have motivated preventionists to care thus deeply for the prevention of crime. If we were to pursue this question sufficiently far into the inner chambers of political philosophy where fully-fledged theories are hatched, we would surely come across a wide variety of mutually diverging and conflicting views on this matter. But without going that far I believe it is possible to find some fairly uncontroversial Expressed in terms from the philosophy of language, the coach thus observes both the so-called maxim of quantity (“Make your contribution as informative as is required (for the current purposes of the exchange) [and do] not make your contribution more informative than is required.” (Grice 1989, p. 26)) and the maxim of manner (“Be brief (avoid unnecessary prolixity).” (Grice 1989, p. 27)).

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common ground among the bulk of consequentialist theories (and even among some of the liberal theories of a contractualist bent that Braithwaite and Pettit mention (1990, p. 56ff)) in their reasons for denouncing crime. Paradoxically, the main inspiration comes from Braithwaite and Pettit themselves. During their further discussion of crime preventionism they write: [T]here would seem to be no reason for the preventionist not to focus on the minimization of the sort of harm associated with crime, rather than on the narrower goal of just minimizing crime itself. (Braithwaite & Pettit 1990, p. 47) Braithwaite and Pettit present this connection wholly counterfactually as what the “dominant variety of consequentialist criminology” (Braithwaite & Pettit 1990, p. 46) could (and perhaps should) have focused on, had they not in fact been so preoccupied with the prevention of crime full-stop. Based on the above argument, however, I suggest that this is precisely the kind of actual focus we can most reasonably ascribe to that same tradition as having actively pursued all along. However abstractly defined and however diverging the many kinds of human behaviour covered by that term, crimes arguably have this much in common: they are harms, that is they constitute attacks on, as Braithwaite and Pettit put it, “the victim’s person (murder, rape), province (kidnap, harassment), and property (burglary, theft)” (1990, p. 69).16 And harms are, other things equal, evils to be avoided. In other words, it seems prima facie reasonable that crime preventionists denounce crime for the same reason most reasonable consequentialists do: crime harms people. Braithwaite and Pettit even admit that if the goal of crime preventionism is interpreted in this manner, i.e. as harm prevention “it would make for a goal that is less obviously insatiable.” (Braithwaite & Here I ignore, for reasons of space, both the question of victimless crimes and the crucial but also problematic distinction between mala in se and mala prohibita; that is, between crimes which are wrongs independently of being criminalized and crimes which are wrong only because they have been criminalized. Suffice to say that it seems likely that while not directly attacking citizens’ person, province or property both victimless crime and mala prohibita can be construed as indirectly constituting such attacks. 16

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Pettit 1990, p. 47) This is so because crimes are obviously not the only things that harm people on person, province, and property. For one, the kinds of state action traditionally licensed and carried out in the criminal justice system in the shape of punishment inflict roughly analogue harms on citizens; that is, these actions are equally bad in and of themselves. Thus, it seems that the target that obviously gives preventionists a good reason for wanting to reduce crime is also the very target that gives them reason to show moderation in the exercise of state power through the criminal justice system. In Braithwaite and Pettit’s description, a target has “a structure which [makes] for satiability [if it is] involved on the cost as well as the benefit side of any putative breach of uncontroversial limits.” (Braithwaite & Pettit 1990, p. 78) And this is precisely why we should expect that crime preventionism properly understood does in fact pursue a satiable target. Any attempt to prevent criminal harm through punishment simultaneously inflicts punitive harm which, other things equal, we have an equal incentive to reduce as much as possible. Hence, the conspicuous absence of boiling oil or other “cruel or unusual punishment” in preventionist crime writings on the importance of reducing crime. Perhaps the real point underlying Braithwaite and Pettit’s objections to crime preventionism is that something like traditional punishment is in fact a wholly inefficient means to crime prevention and if indeed we were to produce any noteworthy effect something like boiling oil would be necessary. But this is beside the point. For the moment, we are not discussing the empirical question of what is and what is not expedient as a means for this or that goal. We are discussing which target we can most plausibly attribute to those crime preventionists that constitute “the dominant variety of consequentialist criminology”. And I believe I have given sufficient reason to prefer a harm preventionist interpretation to the categorical crime preventionist interpretation suggested by Braithwaite and Pettit. Not only is it consistent with the actual behaviour of crime preventionists. It also renders their preoccupation with crime prevention understandable as something other than a wholly arbitrary fetish for unconditional law abidance.

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Everything You Always Wanted to Know About Restorative Justice III. Dominion vs. preventionism – what is the difference?

Braithwaite and Pettit’s conclusion on the basis of their interpretation of crime preventionism is that something wholly different is needed: “[I]f consequentialism is to be vindicated, then we need a very different account of the target which the criminal justice system ought to promote.” (Braithwaite & Pettit 1990, p. 53) Their own suggestion for a target that satisfies this criterion is, as earlier mentioned, the influential concept of dominion or freedom as non-domination.17 And dominion is indeed a very different target than crime prevention as they interpreted the position. After having shown, however, that this categorical kind of crime preventionism is, in fact, a very dubious construct, the crucial question is how dominion relates to the target that can most plausibly be ascribed to the “dominant variety of consequentialist criminology”, i.e. some kind of harm preventionism. In order to sort this out, it is necessary first to get clear on how Braithwaite and Pettit construe dominion as a comprehensive target for the criminal justice system. Only when this is done will we be able to see how it relates to harm preventionism. In developing the concept of dominion Braithwaite and Pettit admit to be heavily indebted to French philosopher Baron de Montesquieu (1689-1755) and, in particular, to his thoughts on the all-important role assigned to fear in the construction of the criminal justice system. Thus, they adopt as their own Montesquieu’s leitmotif as it is expressed by Judith Shklar: One thread runs through all of Montesquieu’s reflections on crime and punishment: how to lessen the burden of fear in the minds of ordinary citizens (Shklar quoted by Braithwaite & Pettit 1990, p. 61)

As mentioned in the introduction, Walgrave wholeheartedly embraces Braithwaite and Pettit’s concept of dominion and assigns it an analogue crucial role in his theory: “The notion of dominion, as presented in Braithwaite and Pettit’s republican theory of criminal justice […], synthesises the legal institutional dimension (the objective rights and freedoms that are legally defined) and the informal relational dimension (the subjective assurance that others will respect these rights and freedoms. It offers an excellent basis for developing legal and institutional theory on restorative justice.” (Walgrave 2008, p. 140) Since Walgrave indicates no substantial points of difference, I believe it is justified to extend (mutatis mutandis) the reach of my conclusions in this section to his theory of restorative justice also.

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What is distinctive of Montesquieu’s approach is further that he equates the absence of fear with liberty: The political liberty of the subject is the tranquillity of mind, arising from the opinion each has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man need not be afraid of another. (Montesquieu quoted in Braithwaite & Pettit 1990, pp. 67-68) Accordingly, assuring the liberty of common citizens becomes a central concern in securing dominion as Braithwaite and Pettit understand the term. In fact, dominion in their coinage is just another word for liberty, and they openly acknowledge that their theory has certain central features in common with the liberal tradition in political philosophy which they trace back to Hobbes. In particular, Braithwaite and Pettit share with this tradition a fundamental interest in so-called negative liberty, i.e. with the kind of liberty that “requires the minimization or elimination of interference by others.” (Braithwaite & Pettit 1990, p. 57) At the same time, however, they emphasise that there are crucial differences between their republican theory and the liberal tradition, and they deliberately use the word dominion instead of liberty in order to express this difference. I shall not labour in much detail all the alleged differences here but draw out only one. Referring to Montesquieu, Braithwaite and Pettit emphasise that dominion differs from liberty in the liberal tradition by adding a distinctive subjective dimension: [W]e should recognize that one of the most common ways in which dominion can be reduced in a society is through subjective erosion: through people, even perhaps people who have reasonable liberty prospects, coming to lose faith in the prospects provided. (Braithwaite & Pettit 1990, p. 67) As a result, dominion essentially becomes a matter of common knowledge: in order for a person to enjoy dominion it is crucial “that she and nearly everyone else knows that she enjoys the prospect mentioned,

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she and nearly everyone else know that the others generally knows this too, and so on.” (Braithwaite & Pettit 1990, pp. 64-65)18 Adding this subjective dimension seems well motivated. It is hard to see the full attraction of freedom that remains wholly unacknowledged and thus unutilised. And, on the whole, I must admit that I find dominion fairly plausible as Braithwaite and Pettit conceive it. The idea of placing at the centre of a consequentialist criminal justice system a concern for individual liberty in the sense of “tranquillity of mind arising from the opinion each has of his safety” seems to me intuitively convincing. However, establishing the overall reasonableness of the suggested target of dominion is not my immediate concern here. Rather, I am trying to sort out the relationship between dominion and the target that the above discussion has shown can most plausibly be ascribed to the criminal justice system, i.e. some version of harm preventionism. First, we should notice that the above sketch of harm preventionism was rather rudimentary and that it did not amount to much in terms of a full-fledged political philosophy that can ultimately justify punitive state action (whether it be through restorative justice or more traditional criminal justice measures). This is so mainly because harm preventionism is a generic term covering a wide variety of interpretations of what constitutes harms. Thus, for instance, harm can be construed narrowly as covering only physical harm or more broadly as covering also various forms of psychological harms. And as long as we speak rather vaguely, as Braithwaite and Pettit do, of “the dominant variety of consequentialist criminology”, I believe it is fair to say that several such interpretations are possible. In view of this openness in the scope of harm preventionism, my suggestion is that dominion can most plausibly be viewed simply as one particular species of harm preventionism, and, thus, as one possible interpretation of “the dominant variety of consequentialist criminology”. And I believe this reading is even supported by Braithwaite and Pettit’s discussion of the matter. If people are not objectively safe, i.e. if bona fide harms in the shape of attacks on person, province and property are not prevented, people simply cannot enjoy dominion. As Braithwaite and Pettit notice: “[T]he This point is also emphasised by Walgrave: “The assurance aspect of rights and freedoms is critical. ‘I know that I have rights, I know that others know it, and I trust that they will respect them.’” (Walgrave 2008, p. 141)

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best way of supporting knowledge that p is to make it the case that p.” (Braithwaite & Pettit 1990, p. 68) This is why, in their opinion, dominion “has all the attractions associated with the goal of minimizing the harm associated with crime.” (1990, p. 70) But securing the goal of dominion stands out as a particular species of attempts to minimise harm in that it construes harm broadly, i.e. as including not only attacks on person, province and property but also the undermining of people’s faith in being secured from such attacks. In the words of Braithwaite and Pettit: If it be said that some conceptions of harm cast the causing of a feeling of vulnerability as harmful, we would reply that any such conception is congenial, for it represents harm as something close to dominion. (Braithwaite & Pettit 1990, p. 70n7) In other words, it seems as if the promotion of dominion is perfectly consistent with harm preventionism, i.e. as a species thereof. Considering Braithwaite and Pettit’s earlier noted irreconcilable stance towards preventionism, the admission of substantial commonalities between the promotion of dominion and (one version of) harm preventionism may seem somewhat puzzling. And it raises the question as to the general status and importance of the discussion so far. In order to sort this out we should notice carefully the precise role and significance of these commonalities in their general argument. As noticed earlier, Braithwaite and Pettit emphasised that the target traditionally ascribed to the criminal justice system is crime prevention (including its traditional sub-goals) (Braithwaite & Pettit 1990, p. 45). And this kind of crime preventionism they portrayed in turn as pursuing “outrageously destabilizing and insatiable objectives.” (Braithwaite & Pettit 1990, p. 45), and as having “absolutely no chance of achieving reflective equilibrium.” (Braithwaite & Pettit 1990, p. 46) Finally, they depicted harm preventionism as a kind of orphan position in criminal justice ethics: “Preventionists do not as a matter of fact focus on harm reduction rather than crime reduction” (Braithwaite & Pettit 1990, p. 47). From these premises it follows straightforwardly that the kind of harm preventionism that can now be seen to be perfectly consistent with dominion can have had absolutely nothing to do with the

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fundamental institutional setting of the traditional criminal justice system. Thus, it seems Braithwaite and Pettit’s introduction of the concept of dominion as a target in criminal justice theory supports the recurrent reading found in so much of the movement’s literature of restorative justice as a new paradigm. With traditional crime preventionism out of the way, restorativists can safely embrace the reasonableness of straightforward harm preventionism without jeopardising the proclaimed status of restorative justice as a kind of Third Way of criminal justice theory that pursue wholly new goals instead of the old moribund ones. I suggest, however, based on the above more plausible reading of crime preventionism as in fact a kind of harm preventionism, that this entire manoeuvre should be rejected. Properly understood, Braithwaite and Pettit’s embrace of (a suitably modified) harm preventionism should rather be seen as the final move in their straw man argument: After having cleared the ground for other positions (by manifestly distorting their content) thus rendering their own position wholly novel and different, they move in to colonise whatever was left of good common sense in the area. IV. Dominion and the punishment of the innocent

So far, I have argued that Braithwaite and Pettit’s interpretation of crime preventionism is untenable and that their general criticism of traditional consequentialist criminology is therefore a straw man fallacy. Properly understood, pursuing the prevention of crime (including its traditional sub-goals) is part and parcel of the pursuit of harm prevention, including, on one reasonable interpretation, the pursuit of dominion. As a consequentialist target for the criminal justice system, therefore, dominion seems to be considerably less controversial than Braithwaite and Pettit (and, we may add, Walgrave) would have us believe. But perhaps one hurdle remains before this claim is entirely convincing. Harm preventionist or not, Braithwaite and Pettit might still protest that their dominion promoting republicanism is crucially different from traditionalist consequentialist punishment theory in one important respect: the ability to honour the second desideratum of stability. As earlier mentioned, Braithwaite and Pettit find it unacceptable if a consequentialist theory of criminal justice can possibly

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countenance punishment of the innocent. And it seems as if preventionism, even on my more charitable interpretation, can in fact do precisely that. According to Braithwaite and Pettit, however, any such thing can be ruled out categorically if the goal is dominion: While it may be right for the preventionist sheriff to countenance the hanging of an innocent black in order to placate a white mob, it can never be right for the sheriff whose target is the promotion of dominion. (Braithwaite & Pettit 1990, p. 72) And if this is true, then there might still be one very important difference between the traditional consequentialist punishment theory and dominion based republicanism. I believe, however, that this claim is mistaken. But now the problem lies, not in Braithwaite and Pettit’s interpretation of traditional consequentialist theories but in their view of the implications of their own republican theory. I will argue that it is not possible to construe a plausible version of dominion, which will not have roughly identical “unstable” implications. Properly understood, the promotion of dominion can in fact also lead to the punishment of the innocent – but like most other consequentialist theories it will in all likelihood only do so in extreme, hypothetical emergencies that are unlikely ever to take place in real life. Before proceeding, however, a couple of reflections on the general importance of the discussion seem to be necessary. As Dolinko points out in his discussion of Braithwaite and Pettit’s claims regarding the rights of the innocent, a proponent of restorative justice … may well impatiently dismiss this objection [i.e. that consequentialist theories must regard deliberate punishment of the innocent as an “open moral possibility.”] as grotesquely abstract and theoretical, with no bearing on the real-world practice of restorative justice processes—the conferences, the victim-offender mediations, and the like. (Dolinko 2003, pp. 327-328) To be sure, proponents of restorative justice may not be the only ones who look to discussions of fictitious lynch mobs and strangely clairvoyant sheriffs with some impatience. On the whole, the continuous debates on the stance of consequentialist theories on the issue of 185

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punishment of the innocent may be regarded as one of the more tedious exercises in philosophy. But there seems to be two good reasons why proponents of restorative justice could look to the debate with a little extra impatience – regardless of the great significance Braithwaite and Pettit assign to their claim that dominion fares particularly well among consequentialist theories on this matter. The first reason is that many proponents view restorative justice as a non-punitive response to crime. For instance, Walgrave characterises restorative justice by its sharp rupture with the “predominant punitive apriorism in the current criminal justice response to crime.” (2008, p. 65) It seems, however, that traditional safeguards associated with the rule of law are motivated precisely because of this “punitive apriorism”. Therefore, if the response is no longer punitive in this manner, one could be tempted to be less insistent on such procedural protection of the rights of the innocent. Most proponents of restorative justice agree, however, that regardless of whether or not restorative justice processes fulfil the formal definition of punishment, they are no doubt vehicles of massive social pressure that very often result in the imposition of burdensome obligations on the offender. Therefore, as one proponent wisely contends, “those subject to it [the restorative justice process] should be entitled to much the same level of procedural protection as defendants who are prosecuted and tried in the courts.” (Johnstone 2002, p. 31) The second reason why we could feel tempted to dismiss the discussion of punishment of the innocent is presented by Dolinko (2003). What Dolinko notices is that in the kinds of deliberative processes favoured in the restorative justice advocacy as the standard response to crime, punishment of the innocent seems simply to be more or less a conceptual impossibility. As Dolinko writes: What would be the point? If the alleged offender is truly innocent, and is someone the authorities are trying to scapegoat, he will be protesting his innocence. If called on to take part in a conference he will almost certainly refuse … Even if his participation in a conference could somehow be secured, the conference will hardly be a success—the putative offender will simply insist, “I’m innocent; they’re framing me; I didn’t do anything to you and there is nothing for me to ‘restore’ or ‘repair’!” (Dolinko 2003, p. 328)

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In order to counter this objection Dolinko devices a classical imaginative thought experiment in which a person is tricked by a detective into falsely believing he committed a crime and therefore participates voluntarily in a restorative conference (cf. 2003, pp. 328-329). But there is no need for all this sophisticated philosophical machinery. There is a very concrete reason why the problem of scapegoating retains exactly the same role in restorative justice as in traditional punishment theory. Or, at least, why it retains that role in regard to those so-called maximalist versions of restorative justice that I am considering here. The reason is that proponents of these versions all agree that voluntary stakeholder processes (victim-offender mediation, conferences, circles) cannot deal with absolutely all criminal cases and that something like a traditional criminal trial can therefore become necessary.19 And they agree, in particular, that if the alleged offender categorically denies any responsibility for the crime in question, she will inevitably have to go to court. For instance, Walgrave writes: There are several reasons why an appeal to the public juridical system may be necessary. Often, the voluntary process cannot be achieved, because the victim or the offender refuses to participate or because an agreement cannot be reached. (Walgrave 2008, p. 151) Furthermore, all these proponents of restorative justice agree that the result of such “an appeal to the public system” for the offender who is found guilty, will be some kind of punishment – even if she maintains her innocence throughout.20 This being so, the “sheriff”, i.e. the public prosecutor, who believes that scapegoating a particular citizen can save many lives will see no trouble in sending the citizen to a conference first. She knows full well that if the citizen refuses to play along quietly she will be back in court before long.21 Besides Braithwaite (e.g. 2002a, 2002c) and Walgrave (e.g. 2002, 2008) this group counts also e.g. Dignan (2002, 2003) and Van Ness (2002). 20 Even though Walgrave prefers to speak of it as reparative sanction (cf. e.g. 2008, p. 150f). I shall not get into that terminological dispute here but speak simply of punishment throughout. Nothing turns on the difference in the present context so readers who prefer e.g. restorative sanction can substitute freely throughout. 21 It is perhaps possible, though, that a restorative system will mitigate somewhat the effects of scapegoating. If the accused finds out that she is being framed she 19

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Thus, it seems after all that we have no choice but to investigate Braithwaite and Pettit’s claim that dominion cannot possibly lead to the punishment of the innocent. As we shall see, their argument turns crucially on the subjective dimension of dominion, and, in particular, on the generalised aspect of this subjective dimension; i.e. on the fact that the liberty-prospects enjoyed must be a matter of common knowledge in the general populace. Braithwaite and Pettit start from the empirical assumption that any occasional use of punishment of the innocent will inevitably get out: [T]here is a chance that such a state invasion of dominion [that some innocent party being framed and penalized for a crime] – perhaps also its justification – will be suspected by many people and that if it occurs with any frequency, there is near certainty of this. The conviction of the innocent is often manifest to the real offender, or her confidant, or a formerly silent witness. (Braithwaite & Pettit 1990, p. 74) As Dolinko notices (2003, p. 325)22, this is an assumption that Braithwaite and Pettit share with many standard (i.e. non-republican) consequentialists who use it to explain why, in most cases, it will eventually prove counterproductive to punish the innocent even though a short term benefit is possible. On most consequentialist accounts, however, it will only be a contingent empirical fact if the spreading of this knowledge will also in fact prove counterproductive in the long run, e.g. in the shape of lost confidence in the law leading to a general breakdown of public order. This may be a possible and perhaps even highly likely turnout, but this connection is too weak, according to Braithwaite and Pettit, to secure that government officials will not at least occasionally be tempted to assume that these effects will be absent in particular cases and, therefore, choose to punish innocent citizens. And this, on their account, is what renders the allocation of rights of such consequentialist theories unstable. might then choose to put up a performance at the conference in the hope that she will get off with a milder agreement than the one she would have had in court. But this, of course, cuts no ice with those who have principled worries on this issue. 22 My reconstruction of Braithwaite and Pettit’s argument follows Dolinko’s rather closely but my line of criticism is substantively different.

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Things are different, however, with dominion. Being essentially a matter of common knowledge, dominion will be compromised in virtue of the very fact that word gets out that occasional punishment of the innocent takes place: … once it becomes a matter of common suspicion that the authorities use the promotion of overall dominion to justify particular invasions, then the dominion of ordinary people in the society is jeopardized. (Braithwaite & Pettit 1990, p. 74)23 Thus, even if a lynch mob threatens directly the lives of, say, 50 people, the sheriff should24, when doing the math, put on the cost side not only the harm inflicted directly on the innocent person through punishment but equally ordinary citizens’ loss of faith in being protected from the arbitrary exercise of state power. And once this is done it tips the balance, according to Braithwaite and Pettit, in favour of not punishing the innocent. Having at all times not only the fate of the accused but also the peace of mind of the entire populace in their hands, government officials will be motivated never to punish the innocent. And this is what, on their account, renders the rights allocated in the pursuit of dominion stable. I believe, however, that this reasoning is unsound. The crucial problem is the role assigned to the common knowledge ingredient of dominion. I shall argue that Braithwaite and Pettit implicitly treats this as being more or less bivalent – either common knowledge of libertyprospects tells ordinary citizens that they enjoy dominion or it tells them that they do not – and that they are unreasonably one-sided in their description of what the common knowledge is knowledge about. Let us only grant the empirical assumption that the occasional scapegoating will become a matter of common knowledge and that, as See also, Braithwaite (2003a, p. 396): “[T]he subjective character of dominion or freedom as non-domination as a value means that people cannot enjoy it if they fear that they might be punished even if they are innocent.” 24 For ease of presentation, I shall stick throughout with the fictitious case of the sheriff and the murderous mob, which needs placating. I shall further suppose that the sheriff knows with complete certainty that 50 innocent people will die in riots unless she punishes one innocent person. All of this is of course wildly unrealistic but the example will serve my purpose here, as it is no doubt one of those situations in which Braithwaite and Pettit hold that the promotion of dominion will not justify punishment of the innocent.

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such, it will have a direct negative impact on the dominion of the general populace. And let us also grant, if only for sake of argument, that this negative impact is strong enough to outweigh the direct harm even to the 50 lives that the sheriff, ex hypothesis, could have saved by scapegoating.25 The problem is that this fact simply does not lead to the conclusion that government officials will be unjustified in punishing the one innocent in order to secure dominion. Braithwaite and Pettit’s reasoning seems to go something like this: Punishment of the innocent raises common suspicion that the authorities use the promotion of overall dominion to justify particular invasions. Raising such suspicion jeopardises the dominion of ordinary citizens. Jeopardising the dominion of ordinary citizens is bad. Therefore, punishment of the innocent is wrong. But on consequentialist premises this is faulty reasoning. An action cannot be wrong simply in virtue of being seen to lead to bad consequences. The world is in many ways an ungrateful place and sometimes it leaves us with choices only between bad and very bad. What is right and what is wrong, therefore, can only be decided by a comparison of the consequences of one action with the consequences of other available alternatives. And Braithwaite and Pettit manifestly fail to do that. And they fail, in particular, to take into account all factors that are relevant in order to carry out such a comparison. Thus, they fail to consider all the relevant information that will be obtained by the general populace once “it becomes a matter of common suspicion that the authorities use the promotion of overall dominion to justify particular invasions” (Braithwaite & Pettit 1990, p. 74), and they fail, therefore, to determine precisely what it is that becomes a matter of common knowledge when this happens. Thus, Braithwaite and Pettit focus only on the common knowledge of the threat against ordinary citizens composed by the state. But in so doing, they forget what originally motivated their formulation of dominion as the goal for the criminal justice system. As we saw earlier, Braithwaite and Pettit explicitly shared Montesquieu’s central interest: “how to lessen the burden of fear in the minds of ordinary citizens” (Shklar quoted by Braithwaite & Pettit 1990, p. 61). The state may 25 One could question the overall sense of assigning that much significance to the subjective dimension. As earlier mentioned, it seems only reasonable to pay some attention to “the burden of fear in the minds of ordinary citizens” but it is questionable if this implies that this burden can ever outweigh the loss of, say, 50 innocent lives.

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indeed be a formidably powerful and dangerous institution, and hence, common knowledge of the conditions surrounding the exercise of the state’s powers is undoubtedly a very important ingredient in lessening the fear in the general populace. Indeed, Montesquieu was, as also Braithwaite and Pettit note, very mindful of that fact. But he also spoke, quite deliberately, of lessening the burden of fear simpliciter. The state is far from the only cause of fear in the general populace. Its role is indeed unique with regard to the magnitude of its strength and power. But the character of the threat it composes to ordinary citizens is essentially the same as that composed by one citizen to another. A fact Braithwaite and Pettit are actually well aware of: The invasion of dominion is an evil associated with central cases of crime. The sort of cases we have in mind are murder, rape, assault, kidnap, harassment, extortion, burglary, theft and fraud …. In such cases the offender trespasses against the victim’s person (murder, rape), province (kidnap, harassment), or property (burglary, theft). Doing so, he invades the person’s dominion, destroying or restricting her liberty in certain regards. (Braithwaite & Pettit 1990, p. 69) And like punishment of the innocent, these kinds of attacks on person, province and property constitute invasions of dominion not only directly on the immediate victim but also equally on the general populace in the shape of fear of being thus victimised. This is why, in order to have dominion, “it is requisite the government be so constituted as one man need not be afraid of another.” (Montesquieu quoted in Braithwaite & Pettit 1990, p. 68, emphasis added) Once this whole other side of the subjective aspect of dominion is taken seriously into account, it is clear that Braithwaite and Pettit’s description of what will become common knowledge if the sheriff’s scapegoating is revealed, is insufficient. What will become a matter of common knowledge, then, is that there is a general risk that one arbitrarily chosen citizen will be punished by the state whenever doing so is known to save the lives of 50 other arbitrarily chosen citizens. In other words, ignoring for a moment the question of who is doing the actual invasion of dominion, what will become a matter of common knowledge is this: when wholly exceptional situations like this one arise, ordinary citizens will run a risk of being arbitrarily attacked on person, 191

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province and property that is 50 times smaller than it would have been had the sheriff chosen instead to follow Braithwaite and Pettit’s suggestion and “internalise a commitment to promote the rights of the innocent” (1990, p. 72). Thus, to sum up, in both scenarios the dominion of ordinary citizens is undoubtedly jeopardized to some extent. But how much so is markedly different. My guess is that reasonable, ordinary citizens comparing the contents of the common knowledge regarding liberty prospects in the two scenarios will opt for the former. That is, they will most likely feel less fear and hence enjoy more dominion in the scenario where they enjoy a 50 times better chance of not being arbitrarily attacked. And this, ex hypothesis, is the scenario in which the sheriff chose to punish the innocent in order to save 50 lives. And this line of reasoning, I believe, is straightforwardly available to the sheriff – like analogue reasoning in relevantly similar dilemmas is available to all government officials working in the criminal justice system. Therefore, government officials who work to promote dominion and who find themselves in similar, highly exceptional circumstances should choose to punish the innocent – directly in order to save 50 lives (or whatever stands to be saved in the particular situation), and indirectly in order to lessen as much as possible the burden of fear in the minds of ordinary citizens. The only way for Braithwaite and Pettit to avoid this conclusion, it seems, would be to redefine dominion technically in such a way that the subjective dimension of dominion, i.e. the common knowledge ingredient, would only include knowledge of the prospects of state invasion of dominion. But that would indeed be a strange concept of “fear in the minds of ordinary citizens”. It would leave citizens afraid only of the state but not of their fellow citizens. In other words, it seems that like other consequentialist targets for the criminal justice system promotion of dominion can in fact provide no absolute guarantees against punishment of the innocent in extreme situations. This is of course a problem for Braithwaite and Pettit who, as we have seen, consider the ability to produce such guarantees a desideratum for a consequentialist theory of criminal justice. But I think that, as good consequentialists, they should not worry too much about it. In real life, as opposed to the farfetched fantasies of armchair philosophers, or works of fiction where the narrative premises are

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100% controllable26, government officials will virtually never find themselves in clear-cut scenarios like that of the sheriff. This is so because, in real life, the costs of punishment to the innocent (and to relatives who depend upon her for their upkeep and welfare) will always be instant, certain and massive while the benefits will always be remote, highly speculative, and, as Braithwaite and Pettit concede, likely to be overruled in the long run.27 On these conditions it is hard to see that consequentialists (dominion promoting or other) will ever be justified in practice in punishing the innocent. Hence, while the promotion of dominion may not lead to a “stable” allocation of rights in Braithwaite and Pettit’s technical sense of that term, i.e. as providing absolutely inviolable guarantees in all possible worlds, it will surely lead to a stable allocation in the sense of these rights being fully respected and sustained by government officials in the day-to-day workings of the criminal justice system. And to consequentialists, this is assurance enough. The deep principled worry on the theoretical possibility of scapegoating in fantastic possible worlds very far away is a worry to retributivists – and to deontologists generally.28 Thus, to sum up this rather lengthy discussion, it seems that when comparing the “dominant variety of consequentialist criminology” and dominion based republicanism there is not a principled difference either on the issue of punishment of the innocent.

26 Like the television-series 24 where our hero, Jack Bauer, revels in ticking bomb scenarios where he knows (and we, the spectators, know too) with full certainty that he can save the lives of millions of people by torturing a detained terrorist or even, on one occasion, by executing his (innocent) boss. 27 In the words of R.M. Hare: “Perhaps the sheriff should hang the innocent man in order to prevent the riot in which there will be many deaths, if he knows that the man’s innocence will never be discovered and that the bad indirect effects will not outweigh the good direct effects; but in practice he will never know this.”(Hare 1981, p. 164, emphasis added) 28 Some consequentialists may nevertheless continue to feel some uneasiness about thus condoning the theoretical possibility of scapegoating. But this is explainable, partly by the smuggling in of real life sentiments to the highly artificial set-up of the various thought experiments, partly by the regrettable fact that even when we do the right thing bad things will occasionally happen. But this, to a consequentialist, is simply a fact of the human condition. Tragically, there can be no abstract assurance of ultimate harmony in the ethical realm.

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Everything You Always Wanted to Know About Restorative Justice V. Some perspectives: Restorative justice, myopia and taking dominion

seriously

So far, I have argued that the general target promoted by restorative justice is considerably less unique and original than proponents would have it appear. Properly understood, the promotion of dominion is wholly consistent with the kind of harm preventionism that can most plausibly be said to have driven “the dominant variety of consequentialist criminology”. Both can reasonably be seen to promote the “tranquillity of mind, arising from the opinion each has of his safety.” (Montesquieu quoted in Braithwaite & Pettit 1990, pp. 67-68) Returning to the considerations in the introduction, this means that I have established, contrary to Walgrave’s claim, that restorative justice is in fact not “inspired by a clearly distinct philosophy” (cf. Walgrave 2008, p. 155). To the degree restorative justice is founded on Braithwaite and Pettit’s republican theory of dominion, the paradigm is in fact roughly the same as that of traditional criminal justice. This implies, in turn, that restorative justice can and should be judged by the same criteria. Or – to stay with Walgrave’s metaphor: be it soccer or American football, consequentialist criminal justice theorists are still playing the same old game by the same old set of rules. What remains now for a consequentialist theory of criminal justice is therefore the more empirical question of establishing whether the kind of institutional set-up suggested by proponents of restorative justice can realistically be expected to present the more efficient means in order to promote this goal than would some more traditional rule of law-based criminal justice system.2930

I stress realistically in order to level the playing field. There is an outspoken tendency in the advocacy for restorative justice to compare state of affairs in ideal restorative utopia with the state of affairs in criminal justice systems actually in existence. As Dolinko writes of Braithwaite’s criticism of retributivism: “The power disparities that Braithwaite treats as immutable and overwhelming when they sabotage the “just deserts” program somehow fade from sight when they might hamper restorative justice.” (Dolinko 2003, p. 337) 30 Of course, several questions remain – a highly important but often neglected one of which is the logically prior question of getting clear on exactly how proponents of restorative justice imagine the fundamental institutional set-up of the criminal justice system, including, in particular, the meta-procedural guidelines that they imagine should allocate individual criminal cases between restorative justice processes and traditional trial and punishment. For a discussion, see Holtermann (2009d). 29

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Of course, answering this question satisfactorily raises complex empirical and conceptual issues that go far beyond the scope of the present article. I shall only suggest a few reasons why we should perhaps meet the self-assured claims of the restorative justice campaign on this issue with a modicum of scepticism. As earlier mentioned, the traditional answer to how the criminal justice system should promote something like dominion is primarily (but by no means exclusively) punishment. And punishment is supposed to have that effect in virtue of the mechanisms of incapacitation, rehabilitation, individual and general deterrence and the earlier mentioned displacement function. Punishment is traditionally considered expedient as a means to “lessen the burden of fear in the minds of ordinary citizens” because of these mechanisms. In the advocacy for restorative justice, on the other hand, such claims of the general means-ends efficiency of punishment is firmly denied. Here, the criminal justice system’s trust in the mechanisms of incapacitation, rehabilitation, deterrence and the displacement function is habitually scorned as unscientific and portrayed as being roughly a matter of irrational habit.31 As a result, traditional criminal justice is touted as an utter failure. To illustrate, Braithwaite dramatically contends that “[t]he criminal justice system could be seen as the most dysfunctional of the major institutional accomplishments of the Enlightenment.” (Braithwaite 2005, p. 283) And Walgrave follows suit: Despite a systematic failure to demonstrate the instrumental value of punishing offenders, punishment is still maintained as the mainstream position. Apparently, the instrumentalist illusions are grafted onto retributive emotions. (Walgrave 2008, p. 55) These examples suffice to give an impression of the general dismissive mood toward state punishment in the advocacy for restorative justice. As is well known, advocates propose instead various deliberative processes like victim-offender mediation, conferences and family group circles “where the parties with a stake in a specific offence resolve collectively how to deal with the aftermath of the offence and its implications for the future.” (Marshall 2003, p. 28). But it is, in fact, very For recent arguments that the dismissal of at least deterrence is premature, see e.g. Ellis (2009) and Holtermann (2009a).

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doubtful if these processes can do any better in this regard. First of all, the empirical evidence habitually quoted in favour of restorative justice is characteristically myopic. It does not measure anything like “the fear in the minds of ordinary citizens”, much less does it explore the relation between various criminal processes and such highly generalised fear. The empirical research on restorative justice that I know of, measures instead immediate effects of various criminal justice processes on the direct stakeholders in individual crimes. Thus, we habitually see surveys of, for instance, stakeholders’ perceptions of procedural fairness, or measures of (short- or long-term) effects of various processes on these same parties. Sherman and Strang’s oft quoted comprehensive study Restorative justice : the evidence (2007) is illustrative in this regard. Sherman and Strang compare the effect of restorative justice and criminal justice procedures on such parameters as victims’ post-traumatic stress symptoms and desire for violent revenge, offender-recidivism and victim and offender satisfaction with the process (Sherman & Strang 2007, p. 4). But they openly admit that they have no data regarding the accumulative effects on the general populace of using restorative justice processes: It is important to note that this question has not been addressed to date in any study, with any research design. The question, in fact, can only arise when RJ is used on such a broad scale that it could theoretically alter the calculations of offenders or potential offenders in deciding whether to commit a crime. (Sherman & Strang 2007, p. 78)32 Part of the problem is epistemological – as also indicated by Sherman and Strang. But this is not the only reason why I believe we should be sceptical with regard to the ability of restorative justice processes to “lessen the burden of fear in the minds of ordinary citizens”. A more principled problem, it seems, is that restorative justice processes are also structurally myopic. They deliberately look to the

In all fairness, it should be emphasised that Sherman and Strang present some reasons why, in their opinion, we should nevertheless expect that restorative justice would outperform criminal justice on this issue. I shall focus, however, on a discussion of Walgrave’s views on this matter.

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immediate needs of the direct parties to the crime, not to some abstract generalised fear in the populace at large. Restorative justice processes are not designed with a view to dealing with the promotion of dominion as a matter of what is and what is not common knowledge in the general populace regarding the assured rights and freedoms. Restorative justice processes are essentially private encounters designed in such a way as to soothe the pain felt by the direct stakeholders. To be sure, the notion of community lurks somewhere in the background, but the campaign for restorative justice has always found it difficult to agree upon a definition of this illusive term (cf. e.g. Walgrave 2008, pp. 76-77). And even if the definitional issue is sidestepped (at least) two problems remain. First, as one commentator notes: “Communities are not the havens of reciprocity and mutuality, nor are they the utopias of egalitarianism, that some might whish.” (Crawford 2002, p. 110) Second, community hardly ever coincide with the state and hence does not address all citizens as would be required in the republican perspective. The essentially private character of restorative justice processes is manifested in their design. Most proponents hold that encounters are confidential33, and state mediators are present primarily in order to secure that stakeholders’ rights are respected and that agreements stay within proportionate limits. In particular, state mediators do not require that participants, during the process or in the outcome agreement, pay any concern to lowering the general level of fear in the population. Indeed, any such requirement would clash directly with the antipaternalistic spirit that has been an unmistakable ingredient in the restorative justice advocacy since Nils Christie’s incipient article “Conflicts as Property” (1977). Some crime victims will surely find the surplus energy to look beyond their own pain and demand, for instance, that the offender goes into rehabilitation so as to minimise chances of future perpetration. But others manifestly will not. They will most probably act like the Danish bus driver who, after having been assaulted at work, agreed in mediation with the offender that the offender should avoid future use of the particular bus route where the victim worked (Henriksen 2003b, p.

33 This confidentiality requirement is explicitly stated in the United Nations’ Basic principles on the use of restorative justice programmes in criminal matters (2002). Cf. also e.g. Walgrave (2008, p. 161).

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48). This no doubt helped calm the victim’s fear but it is hardly the kind of agreement that gives the general population reason to feel any safer. In fact, most restorative justice proponents, at least those in the maximalist group I am considering here, are well aware of the inability of mediation processes narrowly understood to address the public issue properly. I believe Walgrave is representative of that group when he writes of a hypothetical burglary: But, contrary to the position taken in the ‘civilisation thesis’ [i.e. the thesis that “criminal law is replaced by a system of … compensatory mechanisms to settle ‘difficult or unpleasant’ situations among citizens according to civil law”], the impact of the burglary goes beyond the individual victim. … The particular victim stands as an example of the risk run by all citizens. If the authorities did nothing against the particular burglary, it would undermine all citizens’ trust in their right to privacy and possession. (Walgrave 2008, p. 142, emphasis added)34 The problem facing the restorativist who thus recognises that stakeholder mediation has its limits is, however, what the authorities can do, then, in order to not “undermine all citizens’ trust”. And the problem is, in particular, what the restorativist can do that is consistent with her blunt rejection of the efficiency of traditional crime preventive measures. Walgrave lists a number of possible court-imposed so-called reparative sanctions that go beyond mediation in thus addressing all citizens’ trust in their assured rights. He mentions monetary sanctions, community work and even incarceration, but he takes good care not to justify their use in the old preventive terms. Instead, he talks mainly of using these public sanctions as a way of showing the worried public that the authorities take their rights seriously: The intervention must reassure the victim and the public at large of their rights and freedoms, and restore these rights and freedoms into a fully fledged dominion. This is done through clear public censure of the intrusion and through public actions involving, if Cf. also Walgrave (2008, p. 151): “[M]ediation deals only with the victim-offender controversies, while the public dimension may also have to be addressed.”

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possible, the offender in reparative actions. … The reassurance comes not only from the offender’s repentance and apologies, but also from the authorities’ determination to take the assured rights and freedoms seriously. (Walgrave 2008, p. 142, emphasis added) But first, the motivation of thus using coercive measures seems somewhat confused. In most of the concrete examples Walgrave gives, coercion is utilised simply as a backup system when mediation breaks down. But in such cases, then, the reparative sanction clearly does not take place in order to address the public dimension of assured rights and freedoms that go beyond “the victim-offender controversies” of the mediation process (cf. Walgrave 2008, p. 151). It is simply a means to prevent offenders from evading mediation for, as Braithwaite contends: “Very few offenders who participate in restorative justice would be sitting in the room absent a certain amount of coercion.” (Braithwaite 2002c, p. 34) Second, it is unclear what it means precisely in this context that the public sanction shows the authorities “to take the assured rights and freedoms seriously”. And it is unclear, in particular, how thus “taking rights seriously” is supposed to “reassure the public at large of their rights and freedoms” if we can have no faith in the traditional crime preventive measures. Countless memorials in the wake of the 2003 tsunami in Asia no doubt showed us all that the tragic event and the countless deaths were taken seriously. And such memorials may very well occasion a soothing feeling of ritual catharsis or social bonding that somehow reconfirms the general meaningfulness of life on earth. But they manifestly do not make anybody safer from tsunamis. Or at least, they do not make anybody objectively safer. They might tell us that however tragic such an experience is not the end of the world. We can endure even the most tragic events, and life can be made out to be meaningful even in the face of disaster. And knowing this can probably make us go through life being less afraid. Analogously, recalling that dominion has a subjective component, the feeling of safety of ordinary citizens can also be a result of finding out collectively, e.g. through some symbolic public manifestation of censure and solidarity, that we are more solid than we might have guessed. But this clearly is not what Walgrave is getting at when he writes of addressing the public dimension of crime. He is writing of 199

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reassurance of rights and freedoms, not of stamina to endure recurrent trespassing of these rights and freedoms. And, staying with the analogy, even if the kind of “taking tragedy seriously” that is displayed in e.g. ritual mourning has a soothing effect it surely does not make us unafraid of tsunamis. Even if they are not the ends of the world they are undoubtedly still tragic events that we fear deeply and will do much to avoid. In order to calm that fear we need something wholly different from ritual displays of collective mourning – however much they assure everyone that the loss of lives is taken seriously. We need to know that something is being done either to prevent future tsunamis, or (perhaps more realistically) to prevent, e.g. through warning systems, dams or the like, that once they do happen they have catastrophic consequences. And by the same token, it seems that the kind of “taking rights seriously” that is necessary in order to effectively “lessen the burden of fear in the minds of ordinary citizens”, i.e. in order to reassure the victim and the public at large of their rights and freedoms, cannot simply be to express “clear public censure” (Walgrave 2008, p. 142). If Walgrave is at all serious about the reassurance part, he must rely on some kind of preventive measure in order to calm ordinary citizens’ fear of becoming victims of crime. As we have seen, however, Walgrave (along with many other proponents of restorative justice) explicitly shuns the traditional crime preventive mechanisms of incapacitation, rehabilitation, individual and general deterrence and displacement – presumably in order not to undermine restorative justice’s status as new paradigm. But he does not present any alternative explanation as to why the kinds of public sanctions he suggests should have any effect on thus reassuring the public at large. As far as I can see, therefore, if these coercive measures are to be justified at all by reference to dominion (as Walgrave believes they can be), he has no other option than to invoke these traditional crime preventive mechanisms. And in fact I believe that in spite of Walgrave’s dismissive rhetoric he can be shown to do exactly that, i.e. to rely, at least implicitly, to a very great extent on the actual efficiency of these mechanisms. Thus, in explanation of the public dimension of crime Walgrave invites us to consider a hypothetical scenario that I shall quote in some length: Let us imagine that the authorities did nothing or limited their intervention to registering the crime and identifying the burglar. 200

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Probably most burglaries would remain unresolved provoking private actions to ‘make things happen’, leading to an escalation in mutual revenge and dragging down security in the community as a whole. The uninterested attitude of the authorities would also damage all citizens’ trust in public rules, in their right to privacy and property, and in the authorities’ power and willingness to preserve order and justice. Not only would peaceful life in the community be lost, but also order and justice in society. … Both order and peace are threatened by the crime and need a public response. (Walgrave 2008, pp. 27-28) There can be no doubt that Walgrave intends this scenario to be counterfactual. We certainly do not live in a nightmarish outlaw society like the one he describes. But this implies that Walgrave must in fact contend that the existing criminal justice system, the punitive measures it uses to meet crime, actually does exert a constant and massive crime preventive effect. Doing what the criminal justice system is currently doing every day actively prevents this chaos from taking place! Walgrave explicitly motivated his dismissal of punishment by the alleged “systematic failure to demonstrate the instrumental value of punishing offenders” (Walgrave 2008, p. 55) But his own counterfactual description constitutes precisely a convincing demonstration of that very value. On the whole, Walgrave’s writing in this regard is illustrative of a recurrent mistake in restorative (and other) critical writings on crime prevention through punishment. Thus, the pessimistic evidence he cites consistently concern the value or lack thereof of incremental changes in punitive harshness. For instance, referring to Skolnick, Tonry and Braithwaite, he writes: “There is no indication that harsher or more intensive punishment lead to greater public safety and peace.” (Walgrave 2008, p. 54, emphasis added) From such considerations Walgrave jumps to the general conclusion that punishment as such has no crime preventive effects. But this is obviously non sequitur. What can be inferred on these grounds is convincingly expressed in the balanced conclusion of Daniel S. Nagin: While it is my view that the evidence points to the entire enterprise having a substantial impact, predicting the timing, duration, and magnitude of the impact of incremental adjustments in enforcement

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and penalties remains largely beyond our reach. (Nagin 2000, p. 366)35 Thus, to sum up, it seems that the kind of reparative sanctions that Walgrave recommends in order to address the public aspect of crime, i.e. to reassure the public of their rights and freedoms, can only be justified through wholly traditional, preventive thinking. Without such thinking his stern talk of using restorative sanctions to show the authorities’ determination to take these rights seriously reduces to a hollow phrase – possibly “grafted onto retributive emotions.” (cf. Walgrave 2008, p. 55) Conclusion

In this article, I have investigated the philosophical underpinnings of restorative justice as they are presented in Braithwaite and Pettit’s republican theory of dominion. I have done so with a view to evaluate the recurrent claim in the advocacy for restorative justice that it “is based on a different paradigm, inspired by a clearly distinct philosophy.” (Walgrave 2008, p. 155)36 My general conclusion upon investigating the arguments of mainly Braithwaite and Pettit but also Walgrave is that the claim cannot be sustained. A direct comparison of their republican theory of dominion with the kind of consequentialist rationale that can most plausibly be ascribed to the traditional criminal justice system showed that the novelty and unique character of the former are vastly overstated. My investigation revealed two key components that contributed to the erroneous impression of dominion as a new paradigm. First and foremost, Braithwaite and Pettit’s depiction of “the dominant variety of consequentialist criminology” as a kind of categorical crime preventionism proved, in part II, to be essentially a straw man. Properly understood, the kind of consequentialism that can most plausibly be ascribed to the traditional criminal justice system is some kind of harm

Nagin’s conclusion is also confirmed in von Hirsch et al.’s meta-study of criminal deterrence (1999, p. 47). 36 Or any claim to the same effect. As mentioned above (note 1), Braithwaite and Pettit do not specifically claim that promoting dominion constitutes a new paradigm in criminal justice theory, but they consistently emphasise the novel and unique character of their republican theory in the context of consequentialist criminology (cf. e.g. Braithwaite & Pettit 1990, p. 53).

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preventionism. And this harm preventionism, I argued, is very far from leading to the absurd consequences claimed by Braithwaite and Pettit. Secondly, I have argued, in part IV, that Braithwaite and Pettit overstate the achievements of their own dominion-based republicanism on the issue of punishment of the innocent. The promotion of dominion presumably fares no better (nor worse) on this issue than most traditional consequentialist theories would: it can in fact lead to punishment of the innocent but in all likelihood it will only do so in extreme, hypothetical emergencies that are unlikely ever to take place in real life. The only way for Braithwaite and Pettit to escape that conclusion, it seemed, would be to circumscribe the central concept of dominion from “fear in the minds of ordinary citizens” to “fear of the state in the minds of ordinary citizens”. And that would be a strange starting point for a theory of criminal justice. For these reasons, I concluded that the promotion of dominion is essentially wholly consistent with the kind of harm preventionism that can most plausibly be ascribed to the traditional criminal justice system. And properly understood, dominion can most plausibly be viewed simply as one species of that harm preventionism, and, thus, as one possible interpretation of it. Proponents are wrong, therefore, when they claim that restorative justice “is based on a different paradigm, inspired by a clearly distinct philosophy” – at least if that philosophy is thought to look much like the republican theory of dominion. In the final section of the paper, I considered some perspectives of these findings. Granting the substantive coincidence between the fundamental goals pursued by restorative justice and traditional criminal justice, one pertinent question for consequentialist criminal theory is this: should we expect the alternative institutional design suggested by proponents of restorative justice to do any better with regard to these goals than the traditional rule of law-based criminal justice system? This is ultimately an empirical question but I voiced some principled concerns why we should perhaps be sceptical with regard to the ability of restorative justice to properly address at least one crucial aspect of this goal: the fear in the minds of ordinary citizens. The primary problem is the myopia inherent in pure restorative justice processes. Mediation, circles and conferences are essentially private matters between the immediate parties to the crime (however large the concentric circle drawn around the victim and the offender). The processes are usually confidential, and participants are not required 203

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through their agreement to pay any heed to the general level of fear among ordinary citizens. Walgrave, along with many other proponents of restorative justice, tries to remedy this shortcoming by reintroducing for at least some criminal cases more or less traditional trial and punishment (which he then calls restorative sanction). The problem is, however, that such sanctioning remains ultimately unjustified within the framework of Walgrave’s own theory. He explicitly rejects the efficiency of the traditional crime preventionist mechanisms (deterrence, etc.) but presents no convincing alternative explanation as to why thus sanctioning should actually help reassuring ordinary citizens of their general safety. This, I argued, leaves Walgrave with an unpleasant dilemma: either he bites the bullet and resurrects fully the logic of traditional crime preventive measures, or he maintains his scepticism and accepts the fact that restorative justice is essentially impotent with regard to actively reassuring the rights and freedoms of ordinary citizens. The fact that Walgrave was seen to at least implicitly rely on the actual efficiency of wholly traditional crime preventive measures indicated that if prompted he would probably opt for the former solution. If so, this would make Walgrave exemplary of a recurrent feature in much of the advocacy for restorative justice: the tendency to use the touted failure of traditional criminal justice as an excuse for going restorative, while relying, in more quiet moments, on that very kind of criminal justice when restorative justice comes up short. Proponents of restorative justice can of course reject entirely the line of criticism launched here by simply rejecting the kind of philosophically privileged role assigned by Braithwaite, Pettit and Walgrave to the concept of dominion. But this would arguably leave such proponents with the burden of developing an alternative philosophy that could lay the foundations for a comprehensive theory restorative justice.

Acknowledgments: I would like to thank Thomas Søbirk Petersen, Kira Vrist Rønn and Jesper Ryberg for discussion and valuable comments on earlier versions of this paper. Thanks in particular to Frej Klem Thomsen for 204

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impressively thorough and critical last minute reading saving me, among other things, from a rather embarrassing error.

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Index

Acorn, A. ............................. 14;27;104;160 Akhavan, P. ................................... 131f;135 apology ............................................... 13;145 Aristotle....................... 62ff;67;80;90;159 Arnold, M. ................................................. 129 Ashworth, A. ........................................ 12;27 Axelrod, R.M. .................................... 97;117 Bauer, J....................................................... 193 Bentham, J. ........................................ 52;167 Blackstone’s formulation .... 43;91;115 Blix, H. ........................................................ 133 Bonta, J. .................................................. 44;73 Braithwaite, J. 6;10ff;18;19;20;22;24;27ff;44ff;57 ff;61;68ff;98;103;118;151f;160;16 5ff;169ff;178ff;199;201ff Brown, D.E. ..................... 96f;99;117;120 Browning, C.R. ...............................125;129 Brudholm, T. .................... 14;24;109;160 bullfrog stories...................................... 1;21 Buridan’s Ass ..................... 98ff;119;120f butterfly stories................................. 1;103 Camerer, C......................................... 97;117 charity, principle of ....................110;176 Christensen, C. B. ........................... 97;118 Christensen, G.A. ...................................... 24 Christie, N. ... 4f;12;19;32;41;60ff;67f;156;197 Clinton, B. ............................ 108f;141;147 community . 34;45;47;102;122;125;130ff;136; 137;145f;156;157;162;197;198;2 01 compassion.............................................207f

conferences, restorative . 1;5;14;40;42;45ff;51;73;185;187; 195;203 Consedine, J.............................................. 103 consequentialism 15;17;20;83ff;89;98;102;104;144; 165ff;180;202 consequentialist . 14f;17;19;20;22;83ff;88;89;91;10 2;104;111;114;118;140f;147;165; 167ff;172ff;176;178ff;182;184ff;1 88;190ff;202;203 Crawford, A. ............................................. 197 crime preventionism 74;165;167;173;175f;178ff;183f;2 02;204 Daly, K.............. 11;13f;29;104;165;167f Davidson, D. ............................................. 176 Davis, M. . 1;16;19;83ff;93ff;111;114;117ff;1 68 Delmas-Marty, M. .....................................70 deontology ........................................ 84;193 Descartes, R. ........................... 88;113;114 deterrence 15f;19;22;38f;83;93;96;99;107ff;1 16;117;120;122ff;128ff;132ff;143; 147;150;152ff;158f;161ff;167f;17 3f;177;195;200;202;204 Dignan, J....... 5;28f;34;59;152;166;187 displacement function of punishment ................... 15;109;136;173;195;200 Dolinko, D. ............. 20f;23;75;185ff;194 dominion 75;165;169f;173;180ff;188ff;197ff ;202ff

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Everything You Always Wanted to Know About Restorative Justice Dostoyevsky ...................... 72f;75;92;116 Drumbl, M.A. ...... 110;123;124;125;126;128;131 Duff, A................ 8;11;29;75;84;125;167 Dugard, J................................. 148;157;162 Dworkin, R. .............. 35;45;66f;146;162 Dzur, A.W. ................................................ 9;10 Ellis, A. .92;96;102;115ff;122;129f;135;14 0f;195 Emerson, R.W. .................................... 68;78 fear 20;125;135;139;180f;189ff;195ff; 200;203f forgiveness ................................... 9;13;160 Foucault, M. ................................................ 52 freedom as non-domination .................................. 165;169f;180;189 Friis Johansen, K. ..................................... 62 Gardner, J. .................................15;109;173 Glaucon ...................................................... 125 Grice. H.P. ................................................. 177 Hansen, P.G. ............ 25;97;106;117;142 Hare, R.M. ................................................. 193 harm preventionism .. 165;173;175;179f;182ff;194;203 Hart, H.L.A. .............................. 57;64f;126f healing ...............................1;13;14;47;103 Henriksen, C.F. ................................ 46;197 hobgoblin.............................................. 68;78 Holtermann, J.v.H. . 4;42;49;55;59;74;77;98;104;110; 117f;135;138;144;152;162;168;1 94f Hughes, L.N. ............................................. 153 International Criminal Court, the 1;16f;107ff;122ff;127f;130ff;137ff ;143ff International Criminal Tribunal for Rwanda, the .............................131;161 International Criminal Tribunal for the former Yugoslavia, the ............................................. 131;135;161 Johnstone, G. . 4;13;33f;58;61;75;81;145;166;18 6 Kant, I. .......................................... 62;84;136 Kelsen, H. ..................................................... 65

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Kötz, H. ..........................................................70 liberty ......................... 181f;188f;191;192 Lipton, D. ............................................ 87;112 Locke, J. .........................................................47 Machiavelli, N......................................8;107 Marshall, S. ..................................................23 Marshall, T.F. ....... 5;23;28;33;58;81;144;151;195 McCloskey, H.J. ....................................... 174 McCold, P....................... 5;11;28;151;166 mediation 5;7;18;29;72;98;118;144;151;159 ;187;195;197ff Mégret, F. ........................................ 110;128 Méndez, J.E. .............................................. 137 Mennecke, M. .......................................... 123 Milgram, S. ................................................ 125 Mill, J. S. .................................... 9;90;98;119 Minow, M. ..............................128;130;145 Montesquieu, C.S. ... 180f;190;191;194 Nagin, D. ........... 93;99;102;116;120;122;201f Natsios, A. ................................................. 134 OECD ........................................................... 138 offender 1;5;12f;18;20f;23f;28f;31f;35ff;55; 57f;61;69;75ff;86;96;98f;112;118; 120;144;149;150f;154;160;166;1 73ff;185ff;191;195ff;201;203 Pavlich, G.C. ............................ 12;32;55;61 Peirce, C.S........................................... 90;119 perpetrator . 42;67;108f;123ff;134ff;143;145;1 48ff;152ff;157;159ff;164 Pettit, P. .19;22;74;165f;169ff;178ff;188ff;2 02ff preventionism .. 19;22;168ff;173ff;179f;182ff;203 punishment 5ff;11;15f;18;20;22ff;27ff;35f;38ff ;44ff;49f;53ff;57f;61;66ff;72ff;81; 83ff;108ff;144;147;152ff;157ff;16 7ff;171ff;179f;184ff;201;203f Rawls, J. ..................................... 91;170;172 Reason, J. ................................108;127;128 repentance ............................................... 199

Index respect 14;50;51;69;81;100;121;143;146; 148;149;150;156;158;171;180;18 2;184 restorative justice . 1;4ff;27ff;57ff;65ff;73ff;97;103f;1 18;143ff;154ff;160ff;173;175f;180 ;182;184ff;194ff;202f restorative sanction ............................... 18;29;152;187;204 retributive justice ............................. 9ff;32 retributivism 9ff;14ff;20;29;47;76f;83;91;108;1 15;144;147;167f;194 Reuben, D. ............................................... 4;10 revenge ........................................ 9;196;201 Ring of Gyges .........................................125f Roche, D. 9;11;137;143;145ff;158ff;163f;16 7 Ross, A. .................................................... 4;65f Rotberg, R.I. ............................................. 145 rule of law 20;22f;30;32;34;47;57ff;62;68;78f f;158;186;194 Russell, F. ..................................................... 92 Ryberg, J. . 4;25;46;106;142ff;164;204 Sextus Empiricus ........................... 88;113 Sherman, L.W. ................................. 58;196 Socrates ..................................................... 125 South African Truth and Reconciliation Commission (SATRC) ......................... 137;145f;152 Spencer, J.R. .................................. 70;89;91 Staub, E. .................................. 124;126;129 Strang, H............................................. 58;196 straw man fallacy ......................66;80;169;175;184;202

Strawson, P. F................................... 87;113 Swiss cheese model ..........108;127;141 Tallgren, I. .... 110ff;123;124;128;144;161;164 Thomas Aquinas ............................. 63;159 traditional criminal justice 5f;12;15;17ff;22f;28;30;32;53ff;61 ;81;104;145;150;165ff;170;175;1 82;184;194f;202ff;222 trial . 5;18;20;23f;27ff;31;35f;39ff;43f;4 9ff;53ff;57;69;74;76ff;91;109;115; 143;147;151;157ff;170;172;187;1 94;204 Trolle, J. ............................................... 92;116 Tutu, D. ................................................ 16;152 Van Ness, D... 4;28;34;59;152;166;187 victim . 1;5;12f;18;23;29;37;46;49ff;57f;6 1;69;76ff;98;118;144;178;185;18 7;191;195ff;203 victim-offender mediation ........ 98;118 von Hirsch, A. .................. 12;99;120;202 Walgrave, L. . 6;11;15;18f;22;28f;34;59;151f;16 5ff;173;180;182;184;186f;194ff;2 04 Walker, N. .......................................... 93;116 Wilson, J.Q.......................................... 93;116 Wippman, D. .... 123;130f;133;135;144 Wright, R.W.............................................. 126 Wringe, B. ................................................. 144 Zedner, L. ........................................... 11;167 Zehr, H. 1;4;11;19;32;60ff;67f;80;103;144; 166f;175

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Dansk resumé1

Emnet for denne ph.d.-afhandling er det filosofiske grundlag for genoprettende ret (restorative justice) forstået, ikke som denne eller hin konkrete strafferetlige proces, men som en samlet teori om forbrydelse og retfærdighed, dvs. som en sammenhængende teori der tilbyder generelle retningslinjer for håndteringen af forbrydelsers efterspil i overensstemmelse med et eller flere overordnede mål og/eller principper. Afhandlingen undersøger karakteren og holdbarheden af centrale påstande i advokaturet for genoprettende ret, og den præsenterer en række grunde til skepsis – særligt med henblik på den kritik der rettes fra advokaturet mod den traditionelle vestlige retsstatsmodel for strafferetfærdighed, og med henblik på påstanden om at genoprettende ret udgør et nyt strafferetligt paradigme. Afhandlingens centrale fokus er på genoprettende ret i forbindelse med ”almindelig” forbrydelse i nationalstatslige jurisdiktioner, men begrebet undersøges også i relation til brugen af sandhedskommissioner efter internationale forbrydelser. Indeholdt i denne sidste del er også en diskussion af det filosofiske fundament for den Internationale Straffedomstol.

En PDF-version af denne afhandling kan downloades på: http://retsfilosofi.dk/restorative.pdf

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English abstract1

The subject of the present PhD thesis is the philosophical foundations of restorative justice. Accordingly, restorative justice is understood not as this or that particular criminal justice process but as a comprehensive theory of criminal justice, i.e. as a coherent theory providing overall guidelines for the dealing with crime in accordance with one or more overarching goals and/or principles. The thesis investigates the character and soundness of the central claims presented in the advocacy for restorative justice, and it presents some reasons for scepticism, notably with regard to the criticism launched in the advocacy against traditional criminal justice as it is conceived in the western rule of law-model, and with regard to the claim that restorative justice presents a whole new criminal justice paradigm. The thesis’ main focus is on restorative justice as it is used in the context of “ordinary” crime in domestic jurisdictions but it also considers restorative justice in relation to the use of truth commissions in the context of international crime. Included in this latter aspect is also a discussion of the foundations of the International Criminal Court.

A PDF-version of this thesis is available for download and browsing at: http://retsfilosofi.dk/restorative.pdf 1

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