Foreword: Special Edition on Restorative Justice and Punishment

The discussion around the relationship between restorative justice and punishment is not a new one. Despite that, there has not yet been a settlement or agreement on the matter. To me, that serves as proof of the lack of a simple answer, highlighting the complexity of the question, and the need for an ongoing debate. In the October 2022 edition of the EFRJ Newsletter, we published an article by Christian Gade who argued for an understanding of restorative justice as a constructive form of punishment. The article was accompanied by a response from Tim Chapman who focused on the value base of restorative justice as a dialogical process and criticised Gade’s proposal of restorative processes as processes of punishment in order to enable a wider spread of restorative justice.

Christian’s and Tim’s newsletter and blog contributions have sparked the content of this special edition. The authors have used the arguments presented as staring points to sharpen, re-think and share their views on restorative justice and punishment. Extended versions of their articles were published in the Dutch-Flemish Tijdschrift voor Herstelrecht [Journal of Restorative Justice]. We are happy and honoured that they offered shortened and translated versions to be published by the EFRJ, so we can make their insights accessible to a wider audience. It is our aim to keep the discourse on the relationship between restorative justice and punishment — and ultimately — the relation of restorative justice and the criminal justice system open.

We all get an idea of the broad spectrum of possible perspectives on pursuing a discussion on punishment and restorative justice while reading the articles. Bas van Stokkom deals with the concept of punishment in criminal justice and enlarges the scope by looking at the meaning that punishment takes in other contexts. It is mainly the pedagogical contexts of child raising and education that he utilises to put forward his idea of a ‘restorative punishment’ that merely instils discomfort, but does not inflict pain.

In his piece Jacques Claessen introduces alternative definitions of punishment mainly by abolitionist thinkers and extensively deals with Gade’s as well as van Stokkom’s perspectives, rejecting a re-definition of punishment for as long as there is a punitive aspect, a retribution of ‘evil with evil’ in any reaction to crime. Drawing from philosophers like Kant, Hume and Schopenhauer, he suggests the fusion of deontological and consequentialist positions in that restorative justice is a good in and of itself, but is also applied because it leads to good results. He sees special prevention as the only legitimate reason to apply punishment. The aim here is not to harm the offender, but to prevent harm in the future.

The approach that Ivo Aertsen is taking is very different. He argues that in order to keep restorative justice processes free from punitive elements, it is necessary to develop a better understanding of the institutionalisation of restorative justice. To him, the best position for restorative justice is an intermediate one in which a certain degree of autonomy is kept while at the same time a dialogue at eye level between restorative and criminal justice is enabled that entails a debate about legal norms and life world meanings of justice, reactions to wrongdoing etc.

Vincent Geeraets’ article revolves around the consequentialist stance that Christian Gade had put forward. The former takes a philosophical point of view to establish that consequentialist thought doesn’t fit well with restorative justice. According to him restorative justice is primarily a humane response to crime in that it emphasises respect and is built on the foundation of decency and reconciliation, and thus should not mainly be evaluated as a means of crime control, or in relation to its effects on recidivism as well as its economic costs.

I feel enriched by reading each of the analyses. Yet, I haven’t found a definite formula for the relationship between restorative justice and punishment. To me, the great achievement of the authors is to visualise the various possible angles from which to look at the relation, and to spark more questions.

 I would like to share with you three directions my thoughts were heading to after reading them:

1. I was reminded of Nils Christie’s ‘Five dangers ahead’ in which he warned us not to narrowly assess restorative justice with the criteria usually applied to criminal justice processes (Christie, 2009).
2. I had to think of Hannah Arendt. Although she mainly contemplates the political sphere, her insights are transferable to the social sphere and restorative justice. She cautions that in politics one should never adopt a means-to-an-end way of thinking, because that would all too easily lead to the conclusion that all means are acceptable for as long as they’re effective in reaching the one good aim. Even if we make exceptions to what is unacceptable, political thinking would start with that aim and be dominated by it, which — to her — is a risk in and of itself. When entrusted with the lives of other human beings, she writes that it is indispensable to reflect on the values that guide a certain practice, and to focus on the uniqueness of each person and situation. The strength of restorative justice precisely lies in the recognition of individuality and an adjusting of the process accordingly. Simply adopting a new concept of punishment that would be in line with and effective in reaching the aim of e.g. reduced recidivism entails just that danger Arendt warns against — to over-emphasise the aim and to reduce restorative processes to a general technique that simply has to be applied (Arendt, 1958; Arendt, 1970).
3. I reasoned about the power of words. In Germany there has been a shift in language around punishment in the pedagogical context over the past 30 years. While the term punishment (Strafe) is nearly extinct in pedagogical publications, the term consequences (Konsequenz) is all the more popular. This change in wording comes with great danger as it disguises the seriousness and risks of such acts and secretly shifts responsibilities from pedagogical experts to children and juveniles (Magiera and Wilder, 2020).

Drawing on this last point, it makes me happy that in this special edition the authors openly write about punishment and invite us to reflect on its role in restorative justice.

Kim Magiera is the Editor of the Special Issue of the EFRJ Newsletter on restorative justice and punishment (Volume 25/Issue 1). She is a Mediator in penal matters and a Lecturer, University of Hamburg Researcher, Ulm University Medical Center. 
Contact: Kim.Magiera@uniklinik-ulm.de

Published on 29 February 2024. 

Arendt, H. (1958). The human condition. Charles R. Walgreen Foundation Lectures. Chicago: Chicago University Press.

Arendt, H. (1970). On violence. New York: Harcourt, Brace, Jovanovich.

Christie, N. (2009). Restorative justice: five dangers ahead. In: P. Knepper, J. Doak and J. Shapland

(eds.) Urban crime prevention, surveillance, and restorative justice: effects of social technologies, pp. 195–203. Boca Raton FL: CRC Press.

Magiera, K. and Wilder, N. (2020). Von der Strafe zur Konsequenz. Alter Wein in neuen Schläuchen? In: B. Rauh, N. Welter, M. Franzmann, K. Magiera, J. Schramm and N. Wilder (eds.) Emotion — Disziplinierung — Professionalisierung: Pädagogik im Spannungsfeld von Integration der Emotionen und ‚neuen‘ Disziplinierungstechniken, Schriftenreihe der DGfE-Kommission Psychoanalytische Pädagogik, pp. 49–66. Leverkusen: Verlag Barbara Budrich.