Structuring the Landscape Of Restorative Justice Theory

WITH THE FINANCIAL SUPPORT OF:

COST – EUROPEAN COOPERATION IN THE FIELD OF SCIENTIFIC AND TECHNICAL RESEARCH (http://cost.cordis.lu)

UNIVERSITY OF MAASTRICHT, FACULTY OF LAW (http://www.unimaas.nl)


Object
A one-day workshop that will expand on the compilation and mapping of theoretical research on restorative justice in Europe. The contributions of foreign experts are to add more aspects to European vistas gained so far and enrich further debate in the COST A21 Working Group Theoretical Research. By organising this workshop, the initiators hope to meet the often formulated criticism that restorative justice is still missing a sound theoretical basis. This workshop can therefore be seen as a logical continuation and expansion of the COST workshop on ‘The institutionalisation of restorative justice’, organised in November 2004 at the Catholic University of Leuven.

Aim
The workshop aims to provide an opportunity for further theoretical analysis of the themes identified and elaborated during the last year and a half within the three sub-working groups of the Theoretical Research domain of the Action. These sub-working groups are dealing with the following broad topics: ‘Society and Restorative Justice’, ‘Restorative Justice and the Law’ and ‘The inner dynamics (micro-theories) of Restorative Justice’. The work of the Theoretical Research domain had started with defining and elaborating theoretical controversies relevant to the field of Restorative Justice. In the course of the meetings in Budapest and Ljubljana, these controversies were grouped together under the three topics mentioned above. Templates that attempt to bring the host of theories and ‘pieces of theory’ into perspective have been developed. They should be complemented and modified by the comments and the critical appraisal of eminent experts and scholars from outside the working group. In addition, we expect to be confronted with new theoretical aspects that will be integrated into the theoretical landscape. Fruitful debate and mutual enrichment is envisaged as the result of the workshop.


Framework of COST Action A21
The proposed workshop fits into the framework of COST Action A21. The main objective of this Action is to enhance and to deepen knowledge on theoretical and practical aspects of restorative justice in Europe, with a view to supporting implementation strategies in a scientifically sound way. In order to meet this objective, COST Action A21 has identified three domains: evaluative research on restorative justice practices; policy oriented research on restorative justice developments; and theoretical research. Even though the workshop is primarily concerned with theoretical research it will also inform the work done so far and the work scheduled for the future in the fields of evaluative and policy oriented research.
The preparation for and discussion at the workshop should provide a sound basis for placing restorative justice in the wider framework of societal institutions and arrangements that deal with conflict resolution and should define more clearly its place vis-à-vis the criminal justice system.


Date
Wednesday 26 October 2005, 9.00 – 18.00.


Local Organiser
Katrien Lauwaert, University of Maastricht, Faculty of Law (Member of the Management Committee (MC) of COST Action A21).


Organising Committee
- Ivo Aertsen – Chair of Management Committee (MC) COST Action A21, and professor at the Catholic University of Leuven;
- Marko Bošnjak - Researcher, University of Ljubljana, Faculty of Law, Institute of Criminology;
- Christa Pelikan - Researcher, Institute for the Sociology of Law and Criminology, Vienna;
- Sónia Sousa Pereira – Lawyer, Lisbon City Council;
- Bas van Stokkom – Researcher, Centre of Ethics, Radboud University, Nijmegen.


Participants
The workshop is open to COST Action A21 members and to other interested researchers (the latter are invited nominatim). Three experts/scholars are invited as commentators. Maximum number of participants: 40 (25 COST Action A21 members and 15 invited external participants).


Venue
Faculty of Law, University of Maastricht, Bouillonstraat 1-3, Maastricht, Netherlands.


Publication
The presentations of the sub-working groups, as well as the comments by the external experts and the summaries of the discussions taking place in the sessions of the workshop will be integrated as a specific chapter in the final COST Action A21-publication at the end of 2006.


How to register
Registrations (informal) are to be sent to: Sónia Sousa Pereira (soniasousapereira@gmail.com) and will be dealt with on a 'first come, first accepted' basis.
Together with the confirmation of your registration you will be provided with the necessary practical information concerning hotels and site maps.


No registration fee

SESSIONS

Session One: Restorative Justice and Society


Since so far theoretical thinking about Restorative Justice has been predominantly informed by Anglo-American scholars and by sociological, political and anthropological theories put forward in this tradition, we have come to place special emphasis on European continental traditions and especially on strands of political philosophy, of the sociology of law and of legal theory produced within the European context.

As a result of the debates in this sub-working group, we have come to concentrate on theories of conflict regulation, theories of the state and its role in conflict regulation, theories of the relation of society and the state, the state and community and again: the modes of conflict regulation in the community, or more generally: theories of promoting democratic participation in the processes of dealing with conflicts and of peace-making.

Democratic participation as one of the core elements of Restorative Justice brings into focus the relation between the concept of community and the ‘vision of Restorative Justice’. This becomes also visible in the template developed. The template attempts to depict the modes of conflict regulation to be found in the course of (European) history. The main differentiation to be observed is the one between egalitarian societies on the one hand and hierarchical societies on the other hand. Roughly spoken, state law ‘belongs’ to the constructions of hierarchical societies although modern positive law is superimposed and pretends (or contends?) to control the exercise of arbitrary state power (the relevant legal theory of continental European tradition will be dealt with in the session on ‘Restorative Justice and the Law’). Political theories, most important the critique of domination including the critique of market relations (and as a special strand: the dialectics of the enlightenment espoused by the Frankfurt school), have undertaken to grasp these phenomena. The system theory of Niklas Luhmann describes these developments and the structures and institutions that have emerged in highly abstract terms.

Turning to the present – and the future - we find the development that comes under the concept of ‘new governance’ highly pertinent to conflict regulation. There, community or the revival of the community plays a major role. Searching for a more adequate and a more concise conceptualisation of the vague and ever-elusive ‘community’, we have found Clifford Shearing’s concept of ‘nodal governance’ constituting a major innovative contribution. The latter refers to a theoretical concept that bears relevance for practical efforts in dealing with conflicts and in promoting active participation of people in societies ridden by conflict and by poverty.
Since this participatory element is of major relevance for the theory and the practice of Restorative Justice, we expect these ideas to be especially useful to become integrated into the landscape of theories outlined so far.

The work (the template) developed within this sub-working group will be presented by Christa Pelikan and Jan Froestad (a political scientist from Bergen, Norway, working in a team with Clifford Shearing in South Africa) will comment on this work from his theoretical background.


Session Two: Restorative Justice and the Law


Restorative Justice has often been promoted as an alternative mode of conflict resolution to the one offered by the law. Accordingly, questions are often raised concerning the relationship between Restorative Justice and the law. These questions are usually treated in an empirical or technical way. Instead, this sub-working group within the COST Action strives to develop a theoretical analysis of the relationship between Restorative Justice and the law. Within this analysis, the theory of criminal law is of pivotal importance, since a substantial body of (serious) conflicts is labelled as crimes and thus treated by criminal law.

For the purpose of the work of this sub-working group, a template and an explanatory memorandum have been developed in order to contrast the approach of Restorative Justice and that of criminal law regarding certain life events. The approach of criminal law and of Restorative Justice have been studied, especially the respective core elements (or steps) in the analysis of the life event. Further, relevant functions of both the criminal law and the Restorative Justice approach have been brought to light. The contrasting study is based upon theories of criminal law and Restorative Justice. A strong emphasis is put on European (continental) theory. As concerns the analytical approach of criminal law, the importance of the "Strafrechtsdogmatik" is stressed, which has always had a profound influence on continental criminal law and which is all too often neglected when the relationship between law and Restorative Justice is studied. The presentation of functions of criminal law also strives to be theoretically based and more balanced than common discussions on the relationship between law and Restorative Justice. It attempts to discuss when and where particular theories had an impact on the European theoretical landscape.

At the end of the template and of the explanatory memorandum, a first draft is presented to go beyond mere description of the theoretical relationship between Restorative Justice and criminal law in order to develop normative standards for Restorative Justice to act as an alternative (or partial alternative) to traditional criminal law.

The work accomplished by this sub-working group will be presented by Marko Bošnjak and will be commented upon by Professor Horst Schueler-Springorum, a highly distinguished German scholar in the field of criminal law.



Session Three: The internal dynamics of Restorative Justice


In this session, Professor Pompeu Casanovas, a Spanish expert on socio-linguistics and on legal culture, is asked to comment from his theoretical background on the presentations of the sub-working group ‘Restorative Justice and the Law’, with special reference to the comparison of communication with the legal (criminal) process and the restorative process.



Session Four: Summarising the pluralist nature of Restorative Justice theories


A diversity of theorists is working within the Restorative Justice movement, from radicals – sometimes embracing the abolitionist project (E. Fattah in Canada) – to pragmatics who favour peace-meal reforms (J. Dignan in the UK). Internal criticizing is part of restorative justice’s evolutionary process and must not be viewed as a lack of clarity or lack of maturity but of its ‘being on the way to maturity’.

Many concepts that are central in Restorative Justice theories function as icons. These concepts, like ‘community’, ‘reintegration’ and ‘healing’ appear as container-words: anybody can use them with his/her own meaning attached. Once they are defined and the associated values expressed, they are essentially contested. An inventory of main controversies within Restorative Justice may bring to the fore the political and ethical connotations of these concepts and reveal what is considered relevant. Which aspects are morally or politically deemed urgent, and what themes are actually at stake? Disputants are forced to explicate their norms and ideals so that theories get more profile.

Criminal justice and criminal policy is often considered as a patchwork that changes continuously, rejects practices e.g. corporal punishments as outdated and integrates new ones, e.g. community sanctions and pedagogical interventions. It combines perspectives that might seem contradictory as hard treatment on the one hand and rehabilitation on the other. The landscape of Restorative Justice theories can be viewed in the same way: an archipelago of theories that are guided by competing and sometimes contradictory values and aims (which refers to the ‘multi-functionality’ of criminal law in practice).

This session of the workshop is focussed on the main ‘dissimilarities’ within Restorative Justice theory. It aims to cover different strands of thought and attend to different types of questions: should Restorative Justice be perceived as a movement that strengthens autonomous decision making power for direct stakeholders, or as an alternative sanction system as part of state (government) criminal policy?
Purist and maximalist interpretations seem to dominate the debates within Restorative Justice. Purism limits Restorative Justice to restorative practices where parties with a direct stake in the offence try to come to a solution. Maximalism conceives a justice system in which Restorative Justice is not limited to these communication processes. It is admitted that not all crimes can be addressed by communication between victim and offender. Maximalism puts harm and restoration in the centre of the reaction towards a crime and it is thus not process- but rather outcome-oriented. By contrast, in the purist account the voluntary participation of all parties is central.


Related relevant questions are: Should crimes be conceptualised as conflicts which are the property of the parties involved? Are the victim’s needs the proper starting point? Or must this ‘privatising’ of the crime give way for approaches wherein the public interest (renunciation of the crime, norm confirmation, reduction of fear and feelings of social unrest) plays a dominant role?

This summarising session will bring together the theoretical contributions of the previous sessions, set them against the background of the diversity of the theoretical landscape outlined above and, finally, prepare the ground for a discussion on an overall meta-analytical framework.



PROGRAMME


Wednesday, October 26, 2005

9.00 Registration

9.20 Welcome by Rob Mackay (Chair of the theoretical working group of COST Action A21)

9.30 Session One: Restorative Justice and Society
Chair: Prof. Dr. Ivo Aertsen (K.U.Leuven)
Presentation from the sub-working group (Christa Pelikan)
Comment by Prof. Dr. Jan Froestad (University Bergen)
Plenary debate

11.00 Coffee break

11.30 Session Two: Restorative Justice and the Law
Chair: Joséphine Contu (Swiss Federal Criminal Court)
Presentation from the sub-working group (Marko Bošnjak)
Comment by Prof. (emeritus) Dr. Schueler-Springorum (München)
Plenary debate

13.00 Lunch

14.15 Session Three: The internal dynamics (micro-theories) of Restorative Justice
Chair: Katrien Lauwaert (Universiteit Maastricht)
Comment on the presentation from the sub-working group by Prof. Dr. Pompeu Casanovas (Universitat Autonoma de Barcelona)
Plenary debate

15.45 Coffee break

16.15 Session Four: Summarising - The pluralist nature of Restorative Justice theories
Chair: Martin Wright (UK)
Presentation of the summary account (Bas van Stokkom)
Comments of the external experts
Plenary debate

18.00 End – Cocktail drink

SSP