Restorative justice: Sketching a new legal discourse
Apr 03, 2012
[T]he aim of this paper is not merely an exploration of the practice of restorative justice, but rather an examination of the radical re-visioning of criminal justice specifically and legal discourse generally which restorative justice gestures toward.
Restorative justice imagines, and seeks to bring about, a system of justice which is responsive to the vicissitudes and dynamism that characterize individual experiences of crime. In order to do this, it re-imagines what the priorities of a system of criminal justice should be by enacting an inversion of the priorities of traditional legal discourse.
Whereas the traditional Western legal discourses of justice theory and utilitarianism, or efficiency, emphasize the so-called public needs triggered by crime, restorative justice emphasizes the private needs which go largely unaddressed in the criminal justice system as it exists today.
The result of this inversion of the traditional concern of public over private is that neither of the traditional legal discourses can descriptively or normatively account for a restorative justice paradigm. In other words, restorative justice cannot be adequately explained using the vocabulary of either justice theory or utilitarianism/efficiency theory.
Since both these traditional theories make universal claims and tend toward totalizing theories of human behavior and justice, the fact that the dynamism of restorative justice is not fully exhausted by the vocabulary of either discourse indicates that perhaps the two traditional discourses have some common underlying tenet with which restorative justice is incompatible.
My suggestion in this paper is that restorative justice does not embrace the traditional Enlightenment notion that a universal and transcendent rationality or Reason frames and inflects the formation of individual subjects. Instead, restorative justice embraces an understanding of subject fo mation which is akin to, or at least parallel with, Michel Foucault’s notion of subjectivation; that is, restorative justice emphasizes the historical, social, institutional, cultural, and ultimately constructed and constructive nature of the individual subject as opposed to the universal and transcendent subject of traditional legal discourse, which is itself one of the historical legacies of the Enlightenment.
This kinship between restorative justice and Foucault’s philosophy, and the shift from Reason to ‘conditions of possibility’ which it entails, suggests the emergence of a new type of legal discourse, one that is less rigid in its formalism and more agile in its application, a legal discourse which can account for and respond to the lived needs and experiences of human beings, and a legal discourse which, unlike the traditional discourses, does not demand that all other truths be subsumed or ignored, but instead recognizes the value of alternatives and embraces multiplicity.