Page 1 of 8

Advances in Social Sciences Research Journal – Vol. 11, No. 10

Publication Date: October 25, 2024

DOI:10.14738/assrj.1110.17719.

Kashyap, R. (2024). Restorative Justice: An Idea Whose Time Has Come? Advances in Social Sciences Research Journal, 11(10). 167-

174.

Services for Science and Education – United Kingdom

Restorative Justice: An Idea Whose Time Has Come?

Rina Kashyap

Department of Political Science

Lady Shri Ram College for Women, New Delhi 110024

INTRODUCTION

‘In a relatively short time, the trickle has become a river’ (Zehr 2005).

‘Nevertheless, I do not imagine that such a change is likely to occur’ (Johnstone 2002).

These were the two extremes between which the pendulum of my thoughts swung as I began

to write this paper. Is restorative justice, an idea whose time has come? Or do we still await the

tipping point to arrive? This paper explores the relevance of restorative justice by engaging

with primarily three texts—Changing Lenses (Howard Zehr), Returning to the Teachings:

Exploring Aboriginal Justice (Rupert Ross), and The Expanding Prison (David Cayley)—on the

subject. While the texts are primarily an exploration of the concept of restorative justice in the

west. They also raise questions which are of universal concern. I subscribe to the standpoint of

universal values, with a qualification. It must be arrived at, by becoming conscious of the myriad

hues that characterize human life, by respecting and learning from differences; universalism is

not synonymous with homogenization. The idea of universal values has to be a result of a

conversation, a dialogue. It is with this perspective that I approach the readings. The first

section is the introduction. The second section explores the argument that restorative justice is

a way of life via a discussion of the significance of language in the aboriginal communities. The

third section is in an interview format where I share my conversation with a lawyer working in

the Supreme Court of India on a comparison between restorative and penal approaches to

justice. In the concluding section four, I discuss how to realize restorative justice.

There is a proliferation of literature on restorative justice in academic and policy worlds. The

concept has been applied to a spectrum of micro and macro levels—victim offender

conferencing (Amstutz & Zehr 1998), schools (Evans & Vaandering 2022), family group

conferencing (Frost, Abram & Burgess 2014), church, 1 circle processes (Pranis 2005), and

national truth and reconciliation commissions (Gutman & Thompson 2000; Llewellyn & Howse

1999). Claims to the concept have been made by many a departure (or attempts at departure)

from the dominant criminal justice institutions and approaches to resolve conflict. The South

African Truth and Reconciliation Commission, United Nations Office on Drugs and Crime (UN

2016, 2020), and the International Criminal Court (Garbett 2017, Gregoire 2024) 2 are all

examples of such claimants.

The recent currency of the concept belies its roots in indigenous community practices (Kashyap

2005). The need for restorative justice in recent times, in the west, arose as a response to the

1 https://www.crcna.org/SocialJustice/restorative-justice

2 https://www.euforumrj.org/en/icc-continued-space-restorative-justice-exploration

Page 2 of 8

168

Advances in Social Sciences Research Journal (ASSRJ) Vol. 11, Issue 10, October-2024

Services for Science and Education – United Kingdom

negative effects of the increasing individuation in an alienated society plagued by dysfunctional

relationships in society. Restorative justice is also an effort to re-humanize this increasingly

atomized society. It is an attempt to bring back the sense of responsibility and sensitivity of

individuals towards those around them. Optimism and hope are thus characteristics of a

restorative justice approach as it scouts for routes to change notions and practices of

(in)justice; of taking forward the claimed intention of the criminal justice system i.e., of

transforming3 the offender so as to prevent recidivism. The promise of restorative justice most

often requires labouring over a long process, it can rarely be realized over an event or via a

certain number of sessions. While the material dimension of that labour would include a

community’s investment of its resources such as time and a dedicated restorative justice

advocate’s fee, restorative justice also demands a mindful introspection that is simultaneously

also an outward gaze. The latter is necessary as restorative justice emphasizes relationships, is

contextual and its core values include respect and empathy. Restorative justice is informed by

a long-term vision and it jettisons quick fix solutions that are more often than not of cosmetic

value only. It is, by default, an inspection of structural causation.

THE LANGUAGE OF RESTORATIVE JUSTICE

This section at first glance may appear to be an interruption, but I believe that it serves as a

crucial segue between the preceding and following sections. Prominent advocates regard

restorative justice as a justice paradigm that will work smoothly if is accompanied by its

practice as a way of life.4 Endorsing such a view is Rupert Ross in his book Returning to the

Teachings: Exploring Aboriginal Justice in which he draws attention to the aboriginal way of life

and how its values, beliefs, and practices ensure a wholistic perspective that has a long term

positive and enduring just impact on the victim, offender, and the community. In all this

language too plays a crucial role, that is, the words which inform a community’s conversation

reflect its ethos.

In the revelations of the many wisdoms of aboriginal justice Rupert Ross exposes the flaws of

the retributive criminal justice system. One of the most fascinating chapters in the book is the

examination of the usage of language. The aboriginal treasure pun-like double meanings.

Double meanings, Ross explains reinforce the conviction that everything is still in the process

of transformation. Seemingly neutral words can be inherently violent.5 Such words can be a

barrier to communication. Lack of communication leads to stereotyping, which is exactly what

restorative justice seeks to shatter. The aboriginal language makes a minimal use of nouns. This

perhaps explains the reason, that it is a non-judgmental and non-argumentative language. In

my view this makes it a natural language of restorative justice.

3 There is a brief discussion in Zehr about a point of view which recommends that the nomenclature of restorative

justice be replaced by that of transformative justice.

4

‘Restorative justice philosophy is neither a solid perspective nor a global theory, Restorative justice philosophy how

and what to think, how and what to say, how to act. With a glance at the past, we live the present, looking to the

future. In other words, “fixing the past, into the focus of the present and to some extent with the future’ (Robert

Mackay in Gavrielides and Artinopoulou 2013: 337).

5

I recall here, how the colonial master everywhere takes away the identity of the colonized by replacing the name of

the colony with a new one. Therefore, the obsession in postcolonial society of renaming the country in the indigenous

language. I also remember as a child being taught to speak good (positive) words. My grandmother would tell me that

there is a great deal of power in the spoken word.

Page 3 of 8

169

Kashyap, R. (2024). Restorative Justice: An Idea Whose Time Has Come? Advances in Social Sciences Research Journal, 11(10). 167-174.

URL: http://dx.doi.org/10.14738/assrj.1110.17719

In the non-aboriginal context, being mindful about the choice of words can be a step towards

reaching the goals of restorative justice. But we can’t free ride all the way on the vehicle of a

peaceful language. It works for the aborigines because it is part of a world that is not a

throwaway society; it has a sensibility that respects nature; it does not believe in hierarchies;

it believes in sharing knowledge. It does not define ownership as appropriation of property to

the exclusion of others. In this world there is no room for patents and copyrights. This language

of dynamic peace is part of a package deal.

He argues that appearance must be distinguished from reality. He nuances the meaning of the

changing of lenses metaphor i.e., there are multiple ways of seeing and other ways of knowing.

To make a case for restorative justice it is crucial to recognize that crime and justice are not

natural but social constructions. This is important if the support constituency for restorative

justice is to be widened. Common sense perceptions about retributive justice must be

deconstructed so that restorative justice is not dismissed as a utopian ideal. The disclosure that

retributive justice is just another paradigm is a helpful tool in starting a public debate on

restorative justice.

THE FLAWS IN THE EXISTING CRIMINAL JUSTICE SYSTEM

There is a widespread acknowledgement that the current criminal justice system has failed or

is near collapse. The system’s emphasis on punishment has led to what David Cayley (1998)

refers to as the phenomenon of the ‘expanding prison.’ In the popular perception of the criminal

justice system punishment is deserved for commission of an offence, and prisons are in a sense

the site where punishment is operationalized. But this normative connotation of punishment is

of recent origin, there have been societies in history where punishment wasn’t the only form of

accountability of the offender: ‘The idea of proportionate punishment was an Enlightenment

invention which made punishment more rational and palatable...Prisons became popular as a

way to apply proportionate punishment. Prison sentences can be measured in lengths of time

and graded to fit the crime’ (Zehr 2005: 2). In most countries, particularly of the Global South,

the courts are overworked. The inordinate delay in the ‘dispensation of justice’ lengthens the

period of the victim’s public trauma. An accused from a socially and politically powerful

background is often known to intimidate the victim. Long delays in court hearings facilitate

bribery or intimidation of witnesses.

The criminal justice system punishes the offender and sends him to prison to be reformed

where he is expected to reflect and repent for his offence; the prison experience is expected to

deter the offender from committing crimes in the future. Yet recidivism has not ceased. The

prison system is regarded as an indispensable accompaniment of justice. However, we may

note that crime and punishment are not autonomous phenomena. David Cayley’s (1998)

writings demystify crime (and thereby the prisons). The structural logic of a certain society and

political economy veer responses of the individual and community into a particular direction.6

Crime control has become a self-justifying growth industry and the prison is an important

subsidiary of this mega enterprise. In the US, the circle of stakeholders in the prison-industrial

complex is enlarged beyond the state, the offender and the victim to include local inn-owners,

companies that provide technology to build high-tech prisons, transport agencies, and

restaurants in the prison towns. The logic of commerce views the prison-industrial complex as

6 The argument is very close to the justice paradigm perspective put forward by Zehr.