A Justice for Restorative Justice

William Shakespeare (1564–1616) was an actor, poet and playwright who lived at the time when England was beginning to become a trading nation and a growing middle class could support a wide range of new institutions including a permanent theatre. His 39 plays are usually grouped into comedies, tragedies and histories and he drew many of his plots from ancient Rome and mediaeval Italy but then adapted them to his own dramatic purpose.

Two examples have a particular relevance to ideas of justice, The Merchant of Venice, written in the late 1590s, and Measure for measure, first staged in 1604; both contrast the justice of ‘procedural correctness’ with the justice of ‘consequences,’ a contrast also found in Hindu literature (Sen, 2009). (1) However, both plays present problems for modern audiences, The Merchant of Venice because of its apparent anti-semitism and Measure for measure because the timings of events do not add up. So the ideas of justice which both share are rarely explored.

While Shakespeare knew nothing of restorative justice, many aspects of Measure for measure will be familiar to restorative justice practitioners. The heart of the play is the soliloquies and conversations of the main characters and, as with all Shakespeare’s plays, there are many characters but, for the purpose of exploring ideas of justice, six are central to this exploration:

• the Duke
• Angelo, a man with high moral values
• Marianna, his former girlfriend
• Claudio, a young gentleman who has just got his fiancée, Juliet, pregnant
• Isabella, Claudio’s sister, who is about to take her vows as a nun
• Lucio, a ‘man about the town,’ who sometimes comments on the action and is sometimes the key to taking the drama forward.

The Duke says that he is going abroad and appoints Angelo as his deputy. But in fact he does not go abroad; he disguises himself as a wandering friar to find out what people really think of him in his absence. Angelo decides that the Duke has been too lax in enforcing the law and proceeds to tighten things up, including the law which says that anyone who has sex outside marriage will face the death penalty.

Claudio is arrested and asks Isabella to go to Angelo and plead for his life. Isabella does so and Angelo offers to spare Claudio if Isabella will sleep with him. When Isabella threatens to expose him, he asks her who is going to believe her given his reputation for high moral standards. Isabella returns to tell Claudio that she has failed and he implores her to sacrifice her virginity for his life. The wandering friar overhears of this and arranges for Marianna, Angelo’s former girlfriend whom Angelo had previously cast aside, to take Isabella’s place at the dark rendezvous which Angelo had proposed.

Everything goes to plan except that, after his night of pleasure with Marianna, Angelo reneges on his promise to Isabella and orders Claudio’s execution. The Duke returns and Isabella publicly confronts Angelo in front of the Duke but, as expected, Angelo is able to dismiss her allegations and the Duke appears to take his side. Isabella says that the wandering friar will support her allegations and Isabella is held pending the arrival of the wandering friar. Meanwhile, Marianna arrives to confront Angelo and her allegations are similarly dismissed by Angelo as all part of a conspiracy. The Duke contrives to leave the proceedings and return disguised as the wandering friar to be interrogated until Lucio takes it on himself to pull off the Duke’s disguise.

Angelo now has no answer and asks for immediate execution. The Duke proceeds down the route of ‘procedural correctness,’ ordering Angelo to marry Marianna so that she will inherit his property from him after his execution. Marianna pleads for his life and asks Isabella to join her in this plea, in spite of the fact that Angelo has ordered her brother’s execution, which Isabella does. The Duke then reveals that he had been able, as the wandering friar, to get another prisoner already on death row executed in place of Claudio and he pardons both Claudio and Angelo. Finally, the Duke confronts Lucio who had slandered the Duke to the wandering friar and orders him to marry the woman whom he had got pregnant and abandoned.

The failure of the three men, Angelo, Claudio and Lucio, to accept any responsibility for their actions and to expect the women to suffer as a result will be familiar to many restorative justice practitioners. Little has changed in the past four hundred years. Similarly, the arrogance of Angelo in believing that, as a man in a respected position, he will be able to get away with things, will be familiar to many people.

Many people today see restorative justice as a ‘soft’ option but Shakespeare shows Angelo choosing execution as a way of avoiding having to explain his behaviour to Marianna and rebuild a relationship.

From the point of view of Marianna and Isabella, they have now found

• a safe space to speak of their experience
• validation and vindication

but, if Angelo is to be executed, they will lose the opportunity to receive:

• answers to their questions
• genuine truth-telling
• empowerment
• restitution or reparation and
• hope of a better future (Marshall, 2005).

The route of ‘procedural correctness’ does not bring justice to any of the women in this play, only a justice of ‘consequences’ where those who have behaved badly take responsibility for the behaviour and its consequences and seek to ameliorate those consequences.

The law which Angelo sought to implement was presumably intended to prevent children being conceived out of marriage, something which the established church and the authorities, along with the puritan separatists who were increasing in number in England in Shakespeare’s time, would all have supported. In the end Shakespeare satisfies them because all the men are forced into accepting their responsibilities towards the women. But he demonstrates through the drama that only a justice of ‘consequences’ can achieve this.

A similar situation has arisen over the past two decades in many western countries which have increased the penalties for sexual abuse. In the 20th century the guilty plea rate in sexual abuse cases in England was the highest rate for all types of offence and so few victims had to appear in court to present their evidence. Since the imposition of tougher sanctions, the number of those accused willing to plead guilty has dropped significantly and many more victims are having to appear in court than previously as the accused take the chance of being acquitted if the victim cannot produce a sufficiently convincing case. The justice of ‘procedural correctness’ is failing sexual abuse victims. We therefore need a completely different approach to sexual abuse cases (Hulls, 2015).

The fact that Shakespeare twice fashioned plays around comparing ideas of ‘procedural correctness’ with ideas of ‘consequences’ suggests that these were ideas familiar to his audiences and that there may well have been debates about their relative merits at the time.

Yet Amartya Sen (2009), an Indian philosopher and Nobel Prize Laureate in Economic Science, argues that the English tradition from Hobbes and Locke in the 17th century — not long after Shakespeare died — to Rawls in the 20th has focused on arriving at ideas of justice through reasoning rather than emotion — hence the focus on ‘procedural correctness.’ But he does not argue for the substitution of one set of ideas for another but for an integration of those ideas. For example, restorative justice practitioners have developed a number of ideas around the ‘procedural correctness’ of preparing for a restorative event, managing that event and ensuring positive outcomes from the event. But ultimately both restorative justice practitioners and those involved will judge the success of restorative justice on the consequences which flow from it rather than on its ‘procedural correctness,’ unless they perceive the procedure itself to have been harmful.

Did the ideas disappear or were they below the surface all the time? Carol Gilligan (1982), psychologist and gender researcher, showed that, while boys sought logical solutions to decisions, girls sought solutions which did not hurt. Then again another psychologist, Nona P. Lyons (1988) showed that men overwhelmingly saw justice as objective and based on reciprocity whereas women overwhelmingly saw justice as a response based on relationships. Drawing from his extensive work on cross-cultural leadership issues, Michael H. Hoppe (1998) found that cultures which valued work more than family valued

• job centredness,
• performance centredness and
• results orientation

in organisational life whereas cultures which valued family more than work valued

• employee centredness,
• relationship centredness and
• people orientation

in organisational life.

In other words, abstract impersonal and responsive personal ideas seem to be present and expressed in various ways in modern cultures. So it seems reasonable to assume that they have been present in various ways in the west throughout the last 400 years in spite of the dominance of the abstract impersonal ideas of justice as ‘procedural correctness’ in western thought.

We do not know whether there was an ongoing debate on these ideas in Shakespeare’s time or whether the lack of serious debate prompted Shakespeare to air the issues on the stage. But in the end Measure for measure is a satisfying play because it takes us deep into human emotions in some of the most difficult situations which we can encounter and Shakespeare plots a tortuous route out of the situation which allows him to make further points in the debate before coming to a resolution which brings justice for the women and an acceptance of responsibility on the part of the men. Clearly, whatever the situation in his day, Shakespeare thought that it was important to use his art to make the argument for a justice of ‘consequences.’

Today the arguments for a justice of ‘consequences’ are just as strong as they were in Shakespeare’s day and such a justice would enable restorative justice to find its true place in today’s societies.

Robert Shaw is a retired management consultant.  
Contact: robert.shaw15@virginmedia.com

Note

1 See also ‘Restorative Shakespeare’(Shaw, 2020)

Gilligan, C. (1982). In a different voice: psychological theory and women’s development. Cambridge MA/London: Harvard University Press.

Hoppe, M.H. (1998). Validating the masculinity/femininity dimension on elites from 19 countries. In: G. Hofstede (ed.) Masculinity and femininity: the taboo dimension of national cultures, chap. 2, pp. 29–43. London: SAGE.

Hulls, R. (2015). From theory to practice: translating research on restorative justice and sexual violence into practical policy proposals. Newsletter of the European Forum for Restorative Justice 16(1):9–11.

Lyons, N.P. (1988). Two perspectives: on self, relationships, and morality. In: C. Gilligan, J.V. Ward and J.M. Taylor (eds.) Mapping the moral domain: a contribution of women’s thinking to psychological theory and education, chap. 2, pp. 21–45. London: Harvard University Press.

Marshall, C.D. (2005). Satisfying justice — victims, justice and the grain of the universe. Justice Reflections 10(69):1–19. Reprinted from Australian Theological Review May 2005.

Sen, A. (2009). The idea of justice. London: Allen Lane.

Shaw, R. (2020). Restorative Ideas in Shakespeare. In: H. Jokinen (ed.) EFRJ Jubilee Magazine, pp. 7–8. Leuven: European Forum for Restorative Justice.

Published on 31 December 2023.