The Antinomies of Restorative Justice

• Jurisdiction: South Africa
• Pages: 247-271
• Published date: 30 August 2019
• Citation: 2007 Acta Juridica 247
• Author: Raymond Koen
• Date: 30 August 2019

The Antinomies of Restorative Justice

RAYMOND KOEN*

University of the Western Cape

I INTRODUCTION

Restorative justice is easily and indisputably the most exciting and

fascinating recent development in the criminological f‌ield. As a self-

consciously new way of doing justice, it is hardly more than 25 years old.

Yet, it has captured the imagination and won the approval of large

numbers of criminal justice analysts and practitioners who see in

restorative justice a practicable and promising solution to the interna-

tional crisis of criminality.

1

One discerns a collective sense of relief – and

belief – that f‌inally, after so many false starts and blind alleys, there is a real

possibility that the answer to one of the most intractable problems of

contemporary society has been discovered. Indeed, if the proponents of

the restorative justice are to be believed, their project may hold the key to

solving all the serious socio-economic problems of our time. Certainly,

restorative justice has rapidly acquired an imposing presence in and

dramatic inf‌luence upon the world of criminal justice, and demands to be

taken seriously. Whether we like it or not, this is the era of restorative

justice.

However, the growth and popularity of restorative justice have been

accompanied by a conspicuous dearth of critique. Despite the near surfeit

of literature on restorative justice, very little of it is properly critical.

2

Advocates outnumber critics manifold. Most of the literature tends to be

either expository or exhortatory. The bulk of whatever criticism is

contained in the literature tends to be of the ref‌lexive sort, in the sense

* BA (hons) LLB LLM Ph D (University of Cape Town); Lecturer in the Faculty of Law,

University of the WesternCape.

1

Following M Vermes The Fundamental Questions of Criminology (1978) 42–67, the notion

of a crisis of criminality used in this essay refers, essentially, to crime as a mass phenomenon. In

other words, a crisis of criminality exists when crime has risen to the level where it becomes a

generalised feature of social existence, and hence a serious social problem. Historically, the

emergence of crime as a mass phenomenon coincides, more or less, with the rise of the

capitalist mode of production. Pre-capitalist societies did not experience the kind of universal

criminality that characterises capitalism. It took a world-historic transformation of the scale

required for the installation of bourgeois society to engender a catholic criminality. And

contemporary capitalism is burdened by an unrelenting crisis of criminality. See also J Young

‘Writing on the cusp of change: a new criminology for an age of late modernity’ in PWalton

and J Young(eds) The New Criminology Revisited (1998) 260.

2

Thus, for example, of the 17 articles in E McLaughlin et al (eds) Restorative Justice: Critical

Issues (2003), only one (by Ashworth) may be classif‌ied readily as properly critical. Similarly,

the 31 articles in H Zehr and B Toews (eds) Critical Issues in Restorative Justice (2004) at vii are

authored, according to the editors, entirely by ‘long-term advocates and practitioners of

restorative justice’.

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2007 Acta Juridica 247

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that the critics are themselves committed to the success of the

restorationist project and are concerned about the negative impact which

restorationist excesses may have upon that success.

3

Restorative justice

gets very little bad press. Commentators generally do not engage its

precepts and presuppositions in any deep and sustained critical sense.

This essay is an exercise in ‘critical criticism’. It is a polemical

confrontation with the constitution of restorative justice. It is concerned

to identify and engage the antinomies of restorative justice, using the

analytical resources of classical Marxism.

4

The contemporary concept of

restorative justice was elaborated as a response to the worldwide capitalist

crisis of criminality. The epistemological starting point of a Marxist

analysis of the concept must be that it has no biography or history

separate from this crisis of criminality, which is itself one of the

expressions of the general structural crisis besetting the capitalist mode of

production. The point is that restorative justice cannot be analysed as a

concept on its own terms. It does not have a life of its own, and exists

only as one of the ‘celestialised forms’ of the ‘actual relations of life’.

5

Its

existence and career are essentially derivative. It must, therefore, be

comprehended materialistically, in relation to and as an aspect of the

social relations of production of the capitalist mode of production. It

remains to note that the object of the analysis undertaken here is

comprehensive restorative justice. This is the strong version, conceived

as a systemic alternative to criminal justice. The weak version, partial

restorative justice, is content to be an adjunct to criminal justice. The

former is abolitionist, the latter accommodationist. The partial version of

restorative justice holds negligible philosophical attraction and is of

minimal theoretical consequence. It is little more than a pragmatic

adaptation to the contradiction between criminal justice and comprehen-

sive restorative justice. Comprehensive restorative justice is engaging

analytically precisely because it entails a radical rejection of what is.

Partial restorative justice is not, precisely because it seeks a modus vivendi

with what is. It therefore does not demand sustained analytical attention.

6

In any event, it makes sense only in its relation of incompleteness to

comprehensive restorative justice. In this essay, then, any unqualif‌ied

reference to restorative justice means comprehensive restorative justice.

3

See, for example, K Daly ‘Mind the Gap: Restorative Justice in Theory and Practice’in A

VonHirsch et al (eds) Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms?

(2003); D Van Ness ‘NewWine and Old Wineskins: Four Challenges of Restorative Justice’

(1993) 4 Criminal Law Forum 251–76.

4

Constraints of space do not allow for a systematic exposition of the epistemology and

methodology of classical Marxism in this essay. See, in this regard, R Koen Restorative Justice: A

Marxist Analysis (2005) (unpublished PhD Thesis University of Cape Town).

5

K Marx Capital: Volume1 (1954) at 352 fn 2.

6

For the most part, the analysis of partial restorative justice is entailed in the analysis of

comprehensive restorative justice.

248 RESTORATIVE JUSTICE:POLITICS,POLICIES AND PROSPECTS

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