Monday, November 3, 2008

A comment on restorative justice

Here is a comment that a made in my “More on 'restorative justice'” post:


Mr. Redekop and Mr. Wright,

Thank you both for your comments.

Firstly, to address your points, Mr. Redekop:

1) When I said that justice is essentially about getting what one is owed, that was not just ‘my argument’—that’s what justice is! The first problem with restorative justice is that it tries to include something in the meaning of justice that is really external to it. Given that, strictly speaking, justice is a matter of reward and punishment, it is clear that to withhold either a due reward or due punishment would be an injustice in itself. Such an injustice would be permissible according to the criterion I mentioned in the original post, namely, the injustice may be permitted if, by doing so, one expects to avert a greater evil or bring forth a greater good.

2) As to the relationship between offender and offence, the only relationship that is directly relevant is whether or not the offender was morally responsible for the offence. If the (alleged) offender were “confused, disturbed, or mistaken”, then these are clearly circumstances that excuse from culpability.

3) As to the case of murder, the amount of time that the victim might have had left to live is totally irrelevant; what matters is that his life was taken, not the quality or quantity of his life remaining. This is a most curious objection for you to raise.

4) The different circumstances that you enumerate for consideration in sentencing—whether the offender is a hardened criminal, or how wealthy he is if the penalty is to be financial—merely show that sentencing is difficult. But difficulty is no reason to abandon justice.

5) The case of a young offender is a case where I would not necessarily have a problem with imprisonment being commuted to some lesser sentence, for the reason I have mentioned already—namely, that a greater good could be procured. All I am asking is that people recognise that withholding the due punishment is, by definition, an injustice in itself.

6) You appear to hold to the ‘integral humanist’ view of the State, in which the State has a very limited role. I, however, adhere to the traditional view of the State as having the common good as its proper end, and is therefore entitled to investigate into what you call “the true virtue and happiness of all the other persons involved”.

7) This point is really the most important one: “how can a second harm make up for the first?” If one adheres to the restorative justice ideology, than retribution clearly makes no sense in itself. But justice is a metaphysical concept, not at all a utilitarian, pragmatic one. It is undeniable that, metaphysically, a second harm balances a first harm, just as a just wage metaphysically balances an hour’s work. Your example of the broken arm is completely inappropriate, since it deals with an accident, and with two harms being inflicted on the same victim.

8) Your charge that “it is clear that efforts to define the right to punish in moral terms fail to identify clearly the criteria for this right” is completely unfounded; the criterion is simply the due relation between crime and punishment.

9) Powerlessness, poverty, class structure and so on are quite secondary circumstances. The poor and powerless are still responsible moral persons, and moral responsibility is the key criterion for determining culpability.

Now Mr. Wright,

1) You say that “In restorative justice it is reparation, not rehabilitation, that trumps punishment, altough many offenders have themselves been victims”. But I have to ask then: what is your idea of reparation? Reparation means satisfaction, expiation, atonement, and so on. Punishment is an excellent form of reparation.

2) You ask: “can the state be justified in causing deliberate harm to one of its members, even a wrongdoer”? The answer is yes, of course, since this harm is due to the offender because of his transgression.


Reginaldvs Cantvar
All Souls’ Day, 2008 A.D.

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