A New World Order: The Nail in the Coffin for Restorative Justice?

The dichotomy between the old and new world orders - perhaps most accurately distinguished by way of characterising the former as solidly grounded in liberal ideals and the latter as an aggregate project of revisionism, populism and empirical denialism - have invited swaths of commentary, academic insight and mainstream rhetoric into the temporal challenges that such a transformation engenders. Suffice to say that discussing a topic on a scale as large as this - i.e., from what is new, has changed, or been consigned to the bin labelled "obsolete" - gives rise to a remit unable to be defined in a single article. With that being said, however, the primary concern of this article is to consider the landscape of a project for change in an omnipresent institution: a restorative justice approach in the criminal justice system.

At first instance, restorative justice may be understood as a shining example of leniency. However, it must be noted that this would be a clear misconception to think in this way. Restorative justice - as a concept - is not synonymous with leniency. Truth be told, no clear consensus as to a definition is present. However, in both conceptual (as a body of principles) and practical (as a social movement) terms, it aims to find an alternative means to achieve justice, particularly in ways where parties are more involved in finding an agreement within a wider framework entrenched in ideals of healing and mutual reciprocation; a sort of antithesis to the traditional "retributive" justice (Cunneen et al., 2015)

A great way to conceptualise restorative justice would be found not in crime policy but stripping it down to rudimentary basics: a natural-artificial binary. ‘Conflicts as Property’ (Christie, 1977) describes, in one sense, how judicial involvement has gone too far. Conflict, as a natural human disposition, has been subsumed into punishment - a social construct. If you are a victim of crime, who is to act on your behalf? Probably the police and/or the prosecuting authority. When conflict arises, who is to be relied upon? A lawyer perhaps. This train of thought contends that whilst it may be good for societies to minimise conflict, the lack of it nevertheless remains problematic. These conflicts have thus either dissipated entirely or been transferred to someone else as property for their own (usually financial) benefit. Far from emphasising leniency, many may resonate with this – a denial to an intrinsic right to confront the wrongdoer in a way that seeks justice through the natural course of things.

Of course, many will consider a select number of crimes to be reserved for the full weight of the law. Anything less in their minds is injustice. It would be idealistic to think otherwise. Similarly, it would also be far-fetched or idealistic to suggest that most crimes can be resolved in compliance with due process and fundamental rights without an intervening authority for purposes of guaranteeing protection. Whilst it is not be possible to go through the minutiae as to which crime deserves what, a hypothetical could be of assistance: consider an insignificant crime. One that is relatively trivial or free from loss or harm. Do any come to mind where you would prefer to find a direct solution with the individual(s) responsible? Putting it another way: for many victims, the responsibility of holding a perpetrator to account is usually done through a prosecuting authority on your behalf, where the victim usually has little control over the situation. If a conviction is successful, for instance, the prosecuting authority may take it for their own; perhaps concerned more on reputation than the victim at the centre of concern. It would add yet another statistic to inform interested parties of their track record. This is not necessarily a bad thing. And sure, this may bring great satisfaction that justice has been served. But truthfully, is this invariably the case?

The call for restorative justice to be implemented in practice - i.e., through policies, programs and mechanisms - remains inconsistent across the Western world, no doubt a consequence of the absence of a clear definition. However, much prospect is to be stated. In an evidence finding, the UK College of Policing appears to confer with much scholarly observation towards its benefits: mitigating the psychological trauma from the impacts of crime, reduced rates of recidivism and the experiencing of a more authentic form of justice are but a few. Programs have also provided benefit to a large demographic; particularly for both youth and adult parties by way of out-of-court strategies. The same is true in the U.S., with success in enacting legislation, national efforts to change police-based modes of operation, and endorsements of restorative justice practices from bodies such as the National Bar Association (Sliva et al., 2015)

However, justice - once in an established liberal order where restoration was best positioned in a framework navigated by human rights and the rule of law - has now been shunted into a capricious recipe of revisionist populism and ultra-nationalism across the West. Contrary to popular opinion, however, this does not appear to be a temporary aberration. One only needs to look at Trump 2.0 Administration and its insatiable desire to assail political opponents, the dismantling of the once dominantly moderate European landscape, or the increasing factionist-like tendencies to conquer and divide on the international stage. Indeed, the constituent makeup of the G7 over the past decade reflects the ebbing away of centrist politics. Whilst at the time of writing both Donald Trump of the US and Georgia Meloni of Italy have dethroned their moderate predecessors, the elephant in the room is not hard to outline: in Germany, projections place the likes of the AfD in front of Scholz's SPD for upcoming elections, whilst the implications of France's snap election of last year can still be felt in the wake of a bolstered National Rally. Added to which, things are not looking great for the prospects of Labour in the UK (Reform has recently taken first place in opinion polls). Placing a lens on this ostensibly capricious and unsound political base in a new world order, does restorative justice have a place?

The instability today is not the same as that brought about from the Reagan-Thatcher era. Present-day neoliberal tendencies - such as indifference towards social welfarism - are accompanied by other factors: the regression of crucial legal protections (e.g. Roe v Wade on right to abortion), the criminalisation of migrants, the role of both disinformation and misinformation in shaping pro-punitive stances, or the flagrant withdrawal of an international rules-based order, to name but a few. But widening the net of criminalisation to capture a host of new activities, or indeed sharpening the blade of pre-existing offences, simply places restorative justice on the back burner. Moreover, populist political factions across the West have a tendency to induce some form of collective mob mentality when on the question of human rights. Rather than acknowledging its fundamental grounding as a mechanism to maintaining checks and balances on a state's power, they misguidedly diagnosis its teleological premise with visceral disdain.

So far, project restorative justice has demonstrated great potential, further complementing the intrinsic function that democracy seeks to play throughout wider society. It could also offer alternative avenues to dealing with justice for more prosperous results (in addition to the realised benefits mentioned above, another practical example could be the freeing up of prison spaces, for instance). But reality compels one to acknowledge that, in the face of a new world order, its progress is at stake. Perhaps a toast should be raised in the name of hope and optimism that a reversion to solid ground takes place. Or is that being somewhat quixotic? Who knows.

References

Cunneen, C., Goldson, B. (2015) ‘Restorative Justice? A critical Analysis’, Youth, Crime and Justice, 2nd edn, Sage London.

Christie, N. (1977) ‘Conflicts as Property’, The British Journal of Criminology, Vol. 17(1).

Sliva, S.M., Lambert, C.G. (2015) 'Restorative Justice Legislation in the American States: A Statutory Analysis of Emerging Legal Doctrine', Journel of Policy Practice, Vol. 14(2).