Paradigms Lost: Repairing the Harm of Paradigm Discourse in Restorative Justice

Abstract

The promotion of restorative justice as a new ‘paradigm’ of criminal justice, while bringing attention to its originality, has also resulted in some unfortunate consequences, including the creation of unnecessary dichotomies.

Because restorative justice must retain reliance on the conventional system to achieve the essential goals of criminal justice, however, restorative justice does not manifest the ‘incommensurability’ with the prevailing model that would qualify it as a genuine ‘paradigm’ consistent with Kuhnian analysis.

Understood as a new criminal justice goal rather than as a new paradigm, however, restorative justice may fulfill its potential for significant change throughout the criminal justice system.

Keywords:

• Restorative Justice
• Paradigms
• Sentencing
• Criminal Justice

Notes

[1] Annalise Acorn, a law professor and former‐advocate‐turned‐critic of restorative justice, suggests that some researchers have deliberately avoided putting their claims of ‘healing’ to a test: ‘restorative justice advocates still hope to craft victim surveys that will yield favourable results so as to justify the allocation of greater resources to restorative justice programs. Though restorative justice promotes itself with the rhetoric of healing, questions about whether victims experienced healing are rarely present on victim satisfaction surveys intended for use in promoting restorative justice’ (Acorn, 2004, p. 70).

[2] Strang’s study of the Canberra RISE project, while commendably attempting random assignment, does not contrast victims’ reactions to punitive vs. non‐punitive sanctions, because the sample frame only includes cases that the police were willing to divert from criminal processing altogether (Strang, 2002, pp. 70–71). Since the question of punishment was not at issue, Strang’s study is evidential of victims’ satisfaction with the procedural fairness of the restorative justice approach rather than their greater satisfaction with a non‐punitive alternative.

[3] Zehr has increasingly come to view restorative justice as means of reforming, rather than superceding the existing criminal justice system, and has moved away from the espousal of restorative justice as a competing ‘paradigm’ (Zehr, 2002, pp. 13, 58–62).

[4] In this section, I place heavy reliance on the superb analysis and fine scholarship of Marc Groenhuijsen (Groenhuijsen, 2004). My theoretical quibbles are small but notable: where Groenhuijsen contends that a non‐punitive restorative justice paradigm, along the lines of Fattah, ‘is most certainly possible’ (p. 70), but that its limitations make it an unlikely candidate for paradigm shifts for the foreseeable future, I would maintain that its inability to function as a criminal justice system at all without reliance on the conventional system disqualify it as a paradigm ab initio.

[5] Others have noted that Christie himself did not advocate the complete privatization of the criminal justice system (Crawford, 2002, p. 106). But the claim that the state has stolen the conflict from the victim and the offender—a view ‘in keeping with the wider abolitionist agenda within which Christie’s work is situated’ (idem, p. 104)—has been embraced with such ardor by restorative justice advocates as to have become a ‘modern orthodoxy’ among restorative justice supporters (Ashworth, 2003, p. 171).