translated by Sara MacVane
Punishment as the proper form of justice is at the heart of our penal system, so much so that it would be difficult if not impossible to imagine any other system of justice. Most of us think that before the state administered justice, there was another kind of justice based on vengeance, the settling of scores, a savage and usually violent response to infractions.
The community and justice
However, history shows us that at that earlier stage, justice was informed by negotiation and mediation. This way of administering justice is called ‘community justice’, where the community itself regulated any internal disagreements. The aim of community justice was to preserve the ties between people and to bring about reconciliation. We might compare this early form of justice to medical practice; it was a duty to preserve the good health of the social body by reestablishing a balance between the adverse parties.
In addition to community justice, there was also a form of retributive justice with more formal legal rules, but this took very much second place. As societies became more complex, they sought rational foundations for their judicial decisions, and these foundations gave rise to the need to punish the perpetrator, independently of any ties he or she might have to the victim or to the community.
Howard Zehr ( 1 ) , a Mennonite criminologist (b. 1944) has been writing about community justice for the last 40 years in the USA. More recently his thinking has turned to “healing and revitalizing”. He has been inspired by historical models of private justice and the resolution of conflicts practiced among certain populations in New Zealand and Africa. Howard Zehr proposes a model which does not use retributive justice as the best way to respond to crime and to the rupture of social ties that it causes. In our Western societies, we consider retributive justice, that is to say punishment, as the only way to establish equity, to make “the punishment fit the crime”. Our system identifies reparation with punishment. We try to re-establish social equity by retribution against the perpetrator of the crime – by isolating him or her from the rest of society.
In contrast to this, restorative justice seeks to re-establish social equity through more effective means. Restorative justice requires a social dialogue in which the perpetrator, the victim and the community all take part, and it considers the needs for reparation of each one of these parties.
We shall take a look at two of those theories which advocate punishment as the way to bring about justice. For some people, punishment is necessary in and of itself; they understand punishment as expiation. For others, punishment is a social necessity; they see it as useful. Then we will also look at a third proposition: restorative justice which envisions the restoration of social harmony by reweaving the broken connections.
Expiation: an ontological necessity
St Anselm (1033 – 1109) developed the idea of expiation most completely, though it was already present in some earlier church fathers, especially in the work of St Augustin (400 CE).
According to Anselm, God created humankind for a life of eternal blessedness, and this blessed state implies that men and women freely submit to God’s will. But they chose to disobey God, and this sin of disobedience was transmitted to all humankind. Anselm distinguishes between original sin, from which we can be freed by baptism in Jesus Christ, and personal failings, a kind of secondary sin. For these personal sins divine justice demands punishment.
This reasoning stands behind civil punishment beginning in the 18th century. We slipped over from “ordinary sin” to “crime” in the judicial sense of the word, and then added that the victim must find personal satisfaction through civil justice, while the prince or society must impose criminal punishment in order to create order in the world, or “do justice”. For Anselm, God cannot simply forgive; he is obliged to punish sins in order to re-establish order and affirm his own proper righteousness. And so it becomes “divinely just that we pay for our crimes”. Punishment is defined as a form of dignity, and indeed this is how Kant and Hegel come to consider it.
We shall challenge this idea found in Anselm, and then in Kant and Hegel, that we are obliged to punish. It did of course become the paradigm of our own penal justice system and remains so right up to the present day. For Kant, any disobedience of criminal law is in some sense separate from the hurt caused to the particular victim, and only if the state (representing the law) punishes the offender, can we recognize that the crime has been “paid for”. The offender in and of himself can offer the victim nothing which has the power to reaffirm the value of the law transgressed. The only way to re-establish order is to punish the offender. Kant believes that the right to punish rests on the moral obligation to re-establish order by imposing suffering on the offender. This idea of justice as retribution, theorized by Anselm and brought into the civil state by Kant, departs from the idea that there is a natural ontological connection between a crime and its punishment. Indeed the complex question of responsibility is reduced to the idea of a free agent. That is, in order to decide a punishment, there is no need to know anything at all about the social history or the life of the individuals involved, nor indeed about any part that the community might have played. Kant correctly affirms that in apportioning moral judgements, we perforce consider individuals responsible for their acts.
The theory of retributive punishment stimulates a commitment to sacrificial expiation, and this is rather troublesome. It belongs to the same mind-set as the idea that God is punitive and that only the pain of punishment can expiate sin. According to the theory of retributive punishment, only criminal punishment by the state, in such a way as to inflict suffering, has the power to re-establish order and thus to accomplish justice.
The utilitarian idea of punishment
During the 18th century, Cesare Beccaria ( 2 ) and Jeremy Bentham ( 3 )developed a “utilitarian” idea about punishment. They held that above all else, any punishment should be useful to society; it should convince the guilty party to leave off crime. “The punishment, which is a vile means in and of itself and disgusts all our generous feelings, rises to the highest rank of public service when we envision it not as an act of anger or vengeance against a guilty party,[ … ] but as an indispensable sacrifice for the common good.” ( 4 ) According to this point of view, we cannot separate the pain caused by the punishment from its social usefulness in convincing the criminal to change his or her ways, in giving satisfaction to the victim, and in discouraging others from following suit. These three functions are not seen as separate, but as interconnected. Bentham suggests that we should not forget (although we often do) that the criminal is a member of the community, as is everyone else, as indeed is the victim, and therefore we have to hold his interests into account, just as we hold everyone else’s. ( 5 ) Therefore, the harm which the delinquent suffers must not exceed the benefit which accrues to society, to the community. For Bentham, punishment has an apparent value and a real value. The real value is the total harm of the punishment, everything experienced when it is inflicted. The apparent value is the harm as imagined by the community. Bentham does not deny that the delinquent should receive some harm, nor that this real harm should cause some loss to that person. However he believes that the apparent harm represents a profit, since it affects the whole community. He claims that it may perhaps be necessary to sacrifice some of the interest of the delinquent for the benefit of the community, but that the delinquent’s interest is not totally cancelled out. ( 6 ) Bentham believes that any punishment inflicted must be precisely tied to the benefit which society derives from it.
Autonomy and otherness
When we speak of punishment, we often situate it between two choices: expiation (penitence) or reparation (its expediency for society). So, from one point of view, punishment repairs a right of the individual, while from another point of view, it repairs something in the social structure.
Today, the justification given for punishment, particularly for prison sentences, is at the cross-over of these two ideas. On the one hand, the delinquent is condemned as an autonomous and responsible individual, on the other hand, the social structure makes use of the condemnation to affirm its own worth. The harm to the delinquent caused by the punishment indicates that this individual behaved freely, and yet at the same time, the punishment is defined as a service to the social structure. We assign the condemned person a rather delicate position in the tension between these two definitions: we hold that the delinquent is master of his or her fate and is quite capable of naturally and rationally adhering to the norms of our society, and yet we also recognize the weakness of human nature which is not necessarily able to act according to reason. We can summarize this tension as the conflict between moral freedom and the likelihood of crime.
However, when the judicial and penitentiary systems are unable to function coherently between these two poles, any rationale for the punishment is lost. As Christiane Taubira (the Attorney General of France) has said: “Our prisons are full, and empty of meaning.” In France, the philosophy behind punishment remains very dependent on Kant’s transcendental idea of the practical reason. That is, punishment is an anthropological necessity, which rests on an absolute moral principle. However, today we must acknowledge that a prison sentence is experienced by many as an abstraction, because the length of the sentence has no existential content.
Another idea of justice and punishment would be to recognize that society is not composed of individuals isolated from one another, quite divorced from any social concept of community. This would be a community instead where individuals have their own identity within the social fabric. In this case, delinquents would experience their punishments as a necessary social redressal, according to Zehr. ( 7 )
The philosopher Emmanuel Levinas (1905 – 1995) developed an anthropology which claims that nothing is less conditioned than humankind. He solves the dilemma just mentioned by defining the individual as an ethical subject which is entirely free-standing and self-contained. The individual cannot be summarized or compared, defined or understood; instead, any individual is unique and his or her responsibility is infinite.
For Levinas, it is not possible to conceive of the good starting from reason, because reason can only give rise to discourse about that which really exists. In his view, we must not start with a definition of the good and then seek rational ways of arriving at it; on the contrary, we perceive goodness in the face of another. “The face of the other signifies my incontestable responsibility, which takes precedence over any consent on my part, any agreement, any contract, […..] undressing a face reveals nakedness, not form.” ( 8 )
Levinas holds that the basis of morality resides in this unique encounter with others, in this moment when the other asks something of me and when it is urgent that I help and that I listen. The face of the other is like a commandment which teaches us ethical meaning. Autonomy is not the basis of human ethics. Responsibility is not something we can freely decide on; it imposes itself on us, and this movement begins from a passive state, which Levinas calls “the radical stillness of that which is acted upon.”
The most common definition connects responsibility to free will. To be held responsible for an act means that we are free to act or not act, as the case may be. In a departure from this however, Levinas proposes that we recognize expectation as a factor in our definition of responsibility, because it allows us to recognize social relationships as part of the equation. In this way he introduces a passive element as the necessary adjunct of freedom. We are responsible before we can be free, not the other way around. So the alternative to a rational construction of morality is a construction by awareness for others.
For Levinas, this awareness gives rise to morality and also legitimizes it. Our awareness arises from our encounter with the face of the other, and this is the basis of our morality. This idea of an “individualistic ethic” is particular to Levinas’ thought. Or we might put this idea another way: in the face of the other we find an individuality which cannot be reduced to the comprehension of, or the assimilation into a particular system. Reason is also involved, but only later, and there is a third element as well, which might be a person or an institution. Our encounter with the other gives rise to moral conviction, but the third party formalizes and specifies this encounter.
Our penal justice system is in error if it does not consider this encounter as fundamental. If the only relationship is institutional and divorced from the individual, it is counter-productive. As far as punishment goes, the state takes on both the face of the victim and that of society, but it would do well to take a couple of steps backwards before it reduces complex human situations to hard and fast words engraved in stone.
Restoring the link
How can we restore the social ties as a concrete, tangible relationship? Our object is to create new stability and new movement as well, and to do this we have to bring to bear the attractions and repulsions we feel. Stabilizing our passions allows us to see justice as an equilibrium, and mobility allows (the delinquent) a future in and for society. However (as things are now) the victim is always identified as such, and our prisons are totally ineffective. A simple encounter among the parties concerned would lighten the machinery of punishment. It would also considerably reduce collateral loss of time, space, or the desire to live fully, on the one side and on the other.
In our legal system, the state punishes whoever breaks the law and the state also administers the practical aspects of punishment in order to avoid vengeance by the injured party. Hegel explains it this way: We can distinguish vengeance from punishment, because vengeance is a reparation obtained by an act of the injured party, while punishment is decided by a judge. Therefore, reparation must be effected by punishment because in vengeance, passion always plays a role and the rule of law is disturbed. ( 9 )
This idea of law and modern justice slowly and surely removes the victim from the court proceedings, and the punishment inflicted refers more to the law code than to the act committed on a specific person. Hegel rightly warns us not to be too subjective in the administration of justice: In addition, vengeance is not a form of law; it is arbitrary, because the injured party always acts according to his feelings or a subjective motive. Also, when the law acts as vengeance, it constitutes a new offense; it is understood as the action of an individual, and so provokes one act of vengeance after another ad infinitum. ( 10 )
However, our identification of any subjective aspect of justice with arbitrary vengeance is in danger of turning punishment into an abstraction, which will be misunderstood by many people because there is no obvious connection to the victim. The mistake is to exchange one system for another. The victim’s place in the judicial process was effectively re-established in France by Robert Badinter in 1981 when he was Attorney General. It is calculated that today the time in a trial dedicated to the victim is about 10%. Since the 18th century, our legal system has cancelled the arbitrary quality of justice, but only by effectively blotting out the figure of the victim, which the state itself has now assumed. The process which has effected this change is well understand and largely justified in a democratic code applicable to everyone without distinction of class or economic means. However, it does not give meaning to the punishment, because it weakens any sense of responsibility. As Michel Foucault says: It presents the punishment to the offender, but not the offense. ( 11 )
Another way of proceeding would be to define a crime not as the transgression of a law, but as he breaking of social ties. This is the principle on which restorative justice is based. We live in a society where we are all connected. A crime or an offense disturbs that social relationship. Therefore society as a whole can only continue to live serenely, in peace if we identify the disturbance and re-establish communication between the various parties. We might translate this precept as “it is people who make anyone of us a person” or “my humanity is connected to yours”. If the human dimension of each one of us is connected to the human dimension of all the others, any wrong towards one of us is equally a damage for the others.
And so any infraction should cause us to identify the needs and obligations of each of the people involved. We try to repair the damage and remedy the wrong committed, because this is the only way to rectify the hurt experienced by the victim. Reparation requires us to pay attention to those who suffer, since it becomes impossible if any one part of the whole is damaged.
The process of restorative justice uses a particular event to bring to the fore all the parties involved. We might consider this a manifestation of the emphasis which restorative justice places on relationships and on the attempt to re-establish them. The parties would be the person who caused the infraction, the person who suffered it, or someone else who has suffered the same wrong, and the community touched by the conflict or the crime. The objective of these encounters is not necessarily to bring about an agreement on reparation for damage, and in this it differs from mediation. The objective is rather to allow everyone to speak openly, to help the victim answer the many questions arising to him or her, and to put the perpetrator face to face with his or her responsibilities.
Clearly the idea of restorative justice can take many different forms and have many very different results, depending on whether the insult was an offense or a crime, a disagreement within the family or violence at school. In France, since 2012 there have been indirect encounters between prisoners and victims at the prison in Poissy. The people involved are the perpetrators and victims of very serious crimes which necessarily took place ten or more years before. In this case, the objective is an open dialogue where each person involved can rethink his or place in society in relation to the crime suffered or committed. The discussion raised within the restorative group allows all the parties involved to renew their common humanity, whatever the individual label attached to each. The offender will not always be an offender, and the status of the victim is also in transition.
Since August 2014, restorative justice is part of French law and allows victims and perpetrators to choose volunteers to participate in a restorative process during all the stages of judicial procedure. Restorative justice is not a substitute for classical retributive justice, but it does help to off-set the weak points of that system. As we have seen, those weak points include the place accorded to the victim, his or questions and suffering, and the definition of the victim’s needs as strictly material. Another weakness relates to the punishment. A punishment inflicted for an action in the past, leaves little room for the future and fails to raise any real sense of responsibility in the perpetrator of the crime. On the contrary, the punishment often re-enforces his or her resistance and tendency to self-identify as a victim of the system. Yet another weakness of retributive justice is its failure to consider the inter-dependence of the individuals themselves. The last weakness is the exaggerated importance it gives to the penal institution and its relationship to the person punished, to the detriment of all the relationships that person may have.
We might summarize these weaknesses by saying how difficult it is to devise a punishment which is not simply inflicted to make the person who experiences it suffer. Studies show that different punishment system do not lower the rate of re-offense. Works on dissuasion do not demonstrate that more powerful police, more numerous prisons, and more severe and systematic punishments have any real effect on crime rates. ( 12 )
Although restorative justice alone will not resolve all of problems connected to crime and ordinary delinquency, it does have the very great merit of raising fundamental questions about the objectives of any juridical system. Amartya Sen ( 13 ) claims that a society should not be judged solely on its principles of justice, but also on what it achieves concretely, that is to say: how the men and women who make it up live together within these principles of justice. He gives the example of the abolition of slavery. Those who abolished slavery in the 17th and 19th centuries did not think that they could make the world perfectly just, but they did believe that any society which allows slavery is totally unjust. It was their diagnosis of an intolerable injustice which made the abolition of slavery an absolute priority. There was no need to claim that in and of itself abolition would create a perfectly just society.
The idea of justice then is not an abstraction, but a concrete achievement which the individual and society (or God) can judge as contributing to peace or not. Restorative justice is more concerned with the result of the process than with the mechanism itself, as Howard Zehr puts it. Restorative justice puts the restoration of relationships ahead of any particular format. Indeed, that need to restore relationships challenges the idea that depriving anyone of freedom should be an end in and of itself, as if prisons provided both punishment and rehabilitation.
If we hope that prisoners will be released, we really have to formulate a new juridical mechanism. First of all we have to put the various parties in contact right away. We also have to realize that, contrary to what some people would like us to believe, morality no longer rests on an absolute, transcendent, universal principle. It is rather the recognition that we are all individuals and belong to many different fractions, which means that we can only become a cohesive community when we are able to encounter the face of the other. The face as a commandment teaches us moral quality. In this face-to-face encounter the premises for rehabilitation become clear. Afterwards the judicial system and the state can bring in technical procedures. In this way prison becomes an interface where punishment and the conditions for rehabilitation can co-exist beneath the same roof.
( 1 ) See : Restorative Justice, 2002
( 2 ) Cesare Beccaria : an Italian jurist (1738 – 1832), author of Dei delitti e delle pene (On Crimes and Punishments), which had a decisive influence on the politics of punishment in Europe. When Beccaria first began to write, criminal justice in Europe was at its early stages. Punishments were atrocious. Capital punishment was handed out for most crimes and was often carried out by terrible torture. Judges had almost unlimited power to decide the punishment. There was no right to defense, and no proportion between a crime and the punishment imposed.
( 3 ) Jeremy Bentham : an English philosopher (1748 – 1832); with John Stuart Mill, he was a proponent of the philosophical position called ‘utilitarianism’.
( 4 ) Etienne Dumont, Théorie des peines et des récompenses, extraits des manuscrits de Jérémie Bentham, Tome 1, Bruxelles, 1840, p. 23.
( 5 ) Ibid. p. 26 (Translator’s note: I turned what was a direct quotation in the French into indirect discourse because I do not have Bentham’s original words in front of me.)
( 6 ) Ibid. p. 26
( 7 ) Howard Zehr, Changing Lenses, Herald Press, Scottsdale, 1990.
( 8 ) Emmanuel Levinas, Autrement qu’être ou au-delà de l’essence, Le Livre de Poche, Paris, 1978.
( 9 ) G W F Hegel, the quotation in French comes from the French edition of his work, Propédeutique philosophique, Les Editions de Minuit, Paris, 1963. (translator’s note: I translated from the French text.)
( 10 ) G W F Hegel, op. cit.
( 11 ) Michel Foucault, Surveiller et punir, Gallimard, Paris, 1975.
( 12 ) John Braithwaite and Philip Pettit, Not Just Desert: A Republican Theory of Criminal Justice, Clarendon, Oxford, 1990. (The translator translated from the version in French in the article).
( 13 ) Amartya Sen, The Idea of Justice, The Belnap Press of Harvard University, Cambridge, Massachusetts, 2009. See : Restorative Justice, 2002
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