A Conservative Case for Restorative Justice | Mark Seymour
The great battle in judicial theory is between punitive justice and restorative justice. Punitive justice is focused on strict punishments for criminals so as to deter others from becoming criminals (for example, capital punishment would be an example of punitive justice), whereas restorative justice is focused less on the punishment and more the correction of the criminal (for example, apprenticeships within prison are a form of restorative justice as they’re oriented around bettering the criminal, as opposed to punishing them severely enough to dissuade others). The political lines are often drawn where the left are in favour of restorative, and the right punitive. This understanding of where political persuasions fall in regard to judicial theory seems to be incorrect however, and it seems most reasonable for conservatively minded people to be in favour of restorative justice over punitive.
The union between right-wing leanings and punitive justice has a complex history, but for a baseline we might like to note that punitive justice is very much in line with strands of social contract political philosophy, you are punished so severely because you’ve broken to social contract, and so you don’t deserve the luxuries afforded to you as a member of society. If you steal, then you’ve broken the laws of the society you’re in, and so you’ve broken the social contract of that society, and so you’ve forfeited your rights as a citizen, so under the social contract political philosophy it might be perfectly reasonable for the society you’re defying to cut your hands off for stealing, or worse, as you’re no longer an entity within that society. This is an extreme example, but this is still the understood judicial theory in many countries in the middle east.
The conservative issue here is that as soon as someone becomes a criminal, they cease to be a part of their community, and lose all autonomy as a member of society. We can go further to look at how autonomy is necessarily based within a wider social net, and so to be exiled from that the individual loses all autonomy. If you have no potential for constraints then you have no autonomy in the same way that something isn’t bright if there isn’t any darkness to give the brightness it’s value. The constraints on our autonomy is what enables us to be autonomous. When we commit a crime under the framework of punitive justice we are completely divorced from our communities and society, and as all conservatives know, this simply will not do. Community is the single most important conservative value, community comes before individual autonomy even- to function under a judicial system which forcibly removes community members from their communities is akin to dropping someone in the middle of the ocean, they’re completely ripped from their social fabric, which is not only catastrophic for them, but is damaging to the communities they belong to. When someone is imprisoned in such a way it is not merely that they’ve broken the social contract, but that every single person they know and interact with has been affected by their absence. There is little wonder why criminals reoffend when they have no support for their social fabric, as they’re forced to forge a new one, which, when you’re surrounded by criminals in a prison, isn’t going to be the best influence.
So now we come to restorative justice. When people commit crimes, it suggests that something has gone wrong with their connection with the community around them, you wouldn’t shoplift if you respected the shopkeeper, you wouldn’t act anti-social if you cared about your neighbour and so on. When people are arrested for whatever reason, under a restorative framework they’re given the opportunity to engage in their community in a more meaningful way. Of course, not everyone is going to be raised with a love of their community, and many of them won’t ever be equipped with skills which they can use to integrate into their community, so to provide this support through apprenticeships and socialisation groups (such as art club and so on) helps build these individuals up to a point where they can more easily engage with their community, and can more easily amend the issues which led to them taking up criminal acts in the first place.
Of course, this is all a very optimistic outlook, as a Christian I find an easy route towards believing that the social and psychological deprivations of an individual when engaging in their community can be remedied if we give them that extra love and support, but at the same time there’s no way in God’s good name that you’re going to get me to sit in the same room as Charles Bronson, no matter how many art classes he attends. In closing however, I think it’s a travesty that so many people have been denied a sufficient chance to engage meaningfully in their communities. When members of our community take a wrong step, we should work to help them correct their path, rather than pushing them down the ditch as a cautionary tale.