Legal Philosophy & Restorative Justice Punishment

Since my teenage years, I was drawn to philosophy especially as this was first articulated during the ancient Greek and Roman civilisations. I first started writing legal theory and philosophy in 2000 and published my first peer reviewed normative paper Gavrielides, T. (2005) “Some Meta-theoretical Questions for Restorative Justice”, 18:1 Ratio Juris, 84-106. 

My Aristotelian roots

My main focus has been the articulation of an alternative form of punishment. At the same time, I have been exploring the philosophical justification of restorative justice. To this end, I resorted to Classical Greek philosophy and Aristotle in particular. My approach to restorative justice is in line with a neo-Aristotelian wind that is currently blowing in the humanities, largely reflected in the revival of theories and concepts of virtue (Duff, 1991), ethics (Walker and Ivanhoe, 2007), and morality (Miller, 2003). My analysis involved the examination of Aristotle’s original work by reading his philosophy in Ancient Greek as much as possible.

Aristotle argues that specific justice is divided into distributive justice and restorative justice (επανορθωτικόν δίκαιον). Distributive justice is concerned with the distribution of wealth, goods and honours among the citizens of the polis. Restorative justice is applied in individual affairs. Aristotle distinguishes between affairs with the consent (εκούσιες) and without the consent (ακούσιες) of the affected parties. Aristotle also identified the acts, which without consent are included in the restorative justice category: homicide, theft, adultery, robbery, verbal abuse, mutilation and insult. These (kinds of) acts are threatening to social justice because of the lack of consent from one party (i.e. the victim). Restorative justice, according to Aristotle, aims to restore αγαθά (goods) to individuals. Consequently, restorative justice is seen as sitting between loss and gain. According to Irwin, corrective (for us restorative) justice “is restricted and retrospective; it considers only the harm that has been done and the means of restoring the status quo ante” (1988, p. 429). Therefore, I argue that the Anglo-Saxon term restorative justice is a direct translation of the Greek term “epanorthoticon dikaion” (επανορθωτικόν δίκαιον), as this was developed by Aristotle in his comprehensive theory on justice.

Restorative Justice is morally problematic

A leading proponent of restorative justice once asked me why one should need to know the philosophical foundations of a theory, whose central aim is repairing harm . Put another way, why should one worry for a philosophical justification of restorative justice when its central target is to promote good? Although this question might seem trivial, the very identity of restorative justice is dependent upon the answer we give.
My response to this question is simple: restorative justice is a powerful and painful tool that is morally problematic. For this reason, restorative justice cannot simply exist in the realm of practice and policy. This would be irresponsible and unethical. By engaging in a theoretical, metatheoretical and theosophical discussion on restorative justice, we can discover the normative framework that will then allow us to use it as a tool for countering power abuse. It is also difficult for me to justify any corrective or preventative practice if I am lacking a moral and philosophical justification for its tools and methods.
Duff and Garland’s explanation of what makes a practice in need for a justification is helpful. They said that such practice “involves doing things to people that seem morally wrong” (Duff and Garland, 1997, p. 2). For instance, if we accept that restorative justice involves coercion, then there can be no doubt that it can be morally problematic. Moreover, restorative justice can have moral implications on the lives of victims, offenders and their communities. Another reason that makes restorative practice ethically questionable relates to what Walgrave calls “burden of the restorative action” and concerns the nature of the restorative process (2001, p. 18). Most of the restorative programmes might be informal but this does not make them enjoyable or easy. On the contrary, for many offenders, the fact that they have to participate in a personal and direct communication with the victim or her family (or both) is a deeply touching burden. They are confronted with the suffering and harm they had caused, apologising in front of others. 

And there are a lot more reasons why restorative justice needs a philosophical justification. There is evidence (Gavrielides, 2018, 2020) that without a clear normative narrative, restorative justice is open to co-option by power and powerful institutions (including governmental bodies). Furthermore, well-intended policy-makers and people involved in the administration of justice will misapply and abuse the idea, and restorative justice will get mixed up with the punitive paradigm.

In 2000, the Hon Sir Anthony Mason warned that the contribution of restorative justice will remain limited until a more ambitious philosophical framework is pursued for its practices. “We cannot expect too much from a system of one-off conferencing … we should be looking to anchor the concept as an element in a more extensive culture shift” (Mason, 2000, p. 2). Haines reminds us of our responsibilities as theorists since “the failure to theoretically and practically operationalise the concept of restorative justice is an abrogation of responsibility on the part of those involved in promoting its concept and a serious weakness of the literature” (1998, p. 37).

Restorative Justice Punishment

I have always struggled with the central philosophical position of restorative justice and how this reconciles with key concepts such as punishment. As I explored the philosophical foundations of the restorative justice theory and sought for a justification of its practices, I asked: what is restorative justice offering that we don’t already know philosophically?

Many scholars have claimed that restorative justice is an alternative to punishment, as it moves away from State-inflicted retributive responses and the exclusion of affected parties in the decision-making process of justice. There have also been some views that restorative justice is an alternative punishment. Both positions suggest that restorative justice functions above or outside power structures that define punishment according to the needs and preferences of the sovereign.

I claim that the restorative justice experience offers something new. This is restorative justice pain. This pain has a dual impact. First, it causes restorative justice to be morally and ethically problematic. Second, it provides the foundations of its philosophical justification as a theory of ethics and a painful practice. More importantly, this restorative pain is where restorative justice draws its own power for restoring peace.

My notion of restorative justice pain sits outside of the current paradigm of viewing and dealing with wrongdoing, harm and power abuse. Therefore, in my understanding, restorative justice is neither punishment nor an alternative to punishment. I am conscious of the weight of this claim, as it suggests that restorative justice is potentially powerful enough to challenge the status quo.

This power comes from this restorative justice pain, which embraces both the retributive and rehabilitative elements and adds an additional burden on the parties involved and their community. Restorative justice pain serves as the trigger for restorative catharsis, a natural by-product of successful restorative processes (Gavrielides, 2012). This catharsis, however, should not be seen as a must but as a gift of restorative justice (Braithwaite, 2002a). I add that this gift is painful, retributive and dangerous but rehabilitative and constructive.

So, how is this painful gift of restorative pain through catharsis justified? To articulate the underpinning philosophy and justification of this painful theory and practice, I developed a new philosophy that is captured in the resources found on this page.