PART II: UNEQUAL, TRANSITIONAL CONTEXT
3. Introduction: The personal is political
3.6 Maximalist-minimalist or continuum of agendas?
From the literature on restorative justice, it is evident that scholars from different
disciplines view restorative justice primarily from the confines of their particular vantage points. Johnstone (2008) criticises narrow ‘virtues and vices’ debates about restorative justice that focus on particular aspects. He set out to expose the ‘poverty of such a restricted focus’ and provided a more comprehensive descriptive account (p.60) of a continuum of restorative justice agendas. He summarises five analytically distinct but interlinked and overlapping agendas of the restorative justice movement as:
(i) Encouraging the use of restorative processes as part of the social response to crime which includes, deprofessionalization of criminal justice and crime control; a renewed interest in lay participation; restorative processes enable the reactivation of traditional methods (p.62);
(ii) Encouraging a new way to construe crime as an offence to a person rather than the authority of the state, which implies a shift towards ‘repairing the harm and healing the trauma caused by crime’ (p.67);
(iii) Promotion of the application of restorative principles and processes in various institutional settings (p.69);
(iv) Advancing restorative justice as a solution option in realizing political reconciliation after oppression and political violence (p. 72); and,
(v) To construct a just society, wherein all human needs are provided for; and to transform people’s understanding of themselves and their connection to the world (p.72).
Separately, these agendas range from modest to expansive views of restorative justice processing. Taken together, these agendas may enable a broader approach to restorative justice, which takes micro-macro linkages between individuals and the wider world in which injustices are embedded, into account. This resonates with Gil’s (2006:509) invitation to a radical form of restorative justice. He argues that:
In conventional models of restorative justice, practitioners tend to share the
‘common sense’ consciousness of most people, according to which prevailing social realities are valid, legitimate and essentially just. These practitioners pursue therefore the rehabilitation and reintegration of offenders and victims into these very realities, in spite of the social structural violence and injustice that inhere in them, and that are likely to cause recidivism or acts of counter-violence. (Gil, 2006:509).
92 This observation by Gil speaks directly to the South African context in which restorative justice is deployed. An expansive conception of restorative justice, which includes social justice, resonates with the long-term conception of peacebuilding discussed in chapter two. As Barak (2000:42) contends, although a range of policies issue from each of the
‘styles of scenarios of justice, it can be argued that on a ‘continuum of justice’,
’restorative justice would be in the middle as it shares some assumptions in common with both repressive justice and social justice’. He suggests in terms of ‘reducing crime and enhancing justice, the scenarios of restorative and social justice may be viewed as part of the critically-based integrative praxis for an evolving theory and policy of social justice’.
From these modest, structural and expansive views of restorative justice, various elements can be discerned. Figure 3.1 displays some of the key elements found in the literature and at the same time serves as a heuristic device which provides an
intersectional understanding of the various factors that interact to produce crime. This display, although not exhaustive, contributes to a clearer understanding of what
restorative justice processing should ideally be responsive to if it is to be a tool for long- term peacebuilding in South Africa’s unequal, transitional context. That is, restorative justice practitioners should be open-minded about the interplay of individual and social factors that produce crime instead of limiting their constructions of crime and the criminal to a criminal law definition.
The elements included in constructions of crime and the criminal by different restorative justice positions, are depicted in the display. The vertical axis depicts factors from the individual level to the social structural level, and include intrapersonal, interpersonal and intra-community (relationship) levels, where the modest view of restorative justice limits the gaze. The display extends to allow for the group, national and international levels that are included in the expansive conceptions of restorative justice.
The horizontal axis ranges from backward- to forward-looking aspects of restorative justice. In a chapter titled Tapping indigenous knowledge: traditional conflict resolution, restorative justice and the denunciation of crime in South Africa’ Skelton (2008: 234) notes that ‘restorative justice is both backward-looking, in that it includes dealing with the ‘aftermath of the offence’, and forward-looking, in that it is a process that looks at the implications for the future’. Cross-cutting aspects depict socio-economic, socio-political
93 and socio-legal aspects at the macro-level, and psycho-dynamic and psycho-social
aspects on the micro level. These aspects are not exhaustive, but are the main elements that I discerned in the literature.
In sum, from this discussion and display of key themes in restorative justice, it is clear that the ambit of restorative justice is wider than the individual and relationship levels and that it includes all levels of society. On this view, restorative justice is not only confined to criminal justice, but includes various social phenomena within its area of practice. Similarly, victim offender mediation as a form of restorative justice, is applied within the criminal justice system (the focus of this research) and in non-criminal justice settings such as schools, communities, workplaces and other areas (which fall outside the scope of this research). It is important to note that victim offender mediation used for minor harms, does not always require mediators to raise structural issues.
MACRO LEVEL Structural factors
Socio-Economic Socio-political/socio-legal
Backward looking Forward looking
Psychological Psycho-social
Individual factors MICRO LEVEL Figure 3.1 Key themes in restorative justice literature
94 The next section discusses restorative justice and practices that foreshadowed restorative justice processing in South Africa.