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RESTORATIVE JUSTICE

ACROSS THE EAST AND THE WEST

Edited by
KATHERINE VAN WORMER

CASA VERDE PUBLISHING


FOR THE ASIAN ASSOCIATION FOR SOCIAL WELFARE
Hong Kong Taipei Seoul New Dehli Manchester
Restorative Justice Across the East and the West / edited by Katherine Van Wormer.
Includes bibliographical references and index.
ISBN 978-986-80414-3-1
1. Social Work 2. Restorative Justice 3. Social Welfare
4. Empowerment 5. Confronting Oppression.
6. Criminal Justice 7. Social Services.

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Contents

Acknowledgments vii

PART I: Introduction
1 Restorative Justice: A Bridge Between East and West,
Katherine Van Wormer 1

PART II: The Micro Level


2 Advocating the Use of Restorative Justice for Misbehaving Students
and Juvenile Delinquents in Hong Kong, Dennis Wong 11
3 Youth Justice and Restorative Justice in Norway, Ida Hydle 33
4 Restorative Justice Principles in an Asian American Community,
JoAnn Lee and Rhodora Ursua 47
5 Restorative Justice and Offenses Against Women,
Katherine Van Wormer 63
PART III: The Macro (Community) Level
6 Vital Voice for Restorative Justice: The Community Members,
Mona Schatz 77
7 Community Reparations, Katherine Van Wormer 93
8 Restorative Justice Almost 50 Years Later: Japanese American
Redress for Exclusion, Restriction, and Incarceration, Rita Takahashi 103
9 Compatibility between Restorative Justice and Chinese Traditional
Legal Culture, Stephen Chi-Kong Lee 113
10 Working in the Mud: Community Reconciliation and Restorative
Justice in Timor Leste, David Androff 123
11 Ethnic Relations in East-West Perspective: A Case Study in
Restorative Justice, Peter Szto 145
12 Restorative Justice in International Relations: A Gandhian
Approach in the Post-Colonial Era, Vanmala Hiranandani 163

PART IV: Beyond the Macro Level


13 The Environmental Restoration Movement as an Issue of Justice,
Fred H. Besthorn 205
14 Restorative Justice, Empowerment Theory and Transformative
Spirituality: Searching for Authentic Strategies in China, Hong Kong,
India, and Korea, Marta Vides Saade 229
15 Spiritual Dimensions of Restorative Justice: Teachings of the
Dalai Lama, Wayne Evens 253

Index 267
About the Contributors 273
Acknowledgments

First of all, I would like to thank Christian Aspalter, President of the Asian
Association for Social Welfare, who helped conceiving the novel idea of a book
that would join Eastern and Western thought, concepts, and experiences in the
realm of restorative justice. Furthermore, my deepest appreciation is extended
to the numerous authors who have contributed to this exciting book project who
come from around the globe. The list of contributors includes authors from
India, Hong Kong, China, Japan, El Salvador, the United States, and Norway.
The authors have contributed their vast knowledge of restorative strategies to
this anthology. Last but not least, I would like to thank my very dear husband,
Robert van Wormer, for his great help in proofreading the manuscript for this
book.

Katherine van Wormer


University of Northern Iowa, Cedar Falls, IA
1
____________________________

Restorative Justice:
A Bridge Between East and West
KATHERINE VAN WORMER

In a moonlit night on a spring day,


the croak of a frog
pierces through the whole cosmos
and turns it into a single family!
Chang Chiu-Chen of the Tang Dynasty

How should our society (in whatever country) respond to wrongdoing?


Should we seek retribution or reconciliation? How can an offender find
redemption and be reintegrated into society? How can a victim’s woun-
dedness be healed? Can reparations be extended to a nation, to the na-
tural environment?
For social workers and students of social work, these questions are
paramount. As a profession, social work is at the intersection of private
troubles and public policy. The solutions focus of social work draws our
attention to strategies of peace building and peace making.
2 Restorative Justice Across the East and the West

At the micro level, restorative justice is played out as conferencing


between victims and offenders; the rituals take place in family groups
and healing circles. At the macro or societal level where the wrong-
doing has been on a global scale, restorative justice takes the form of
reparations or truth commissions to compensate for the harm that has
been done. Common to all these models, is restoring justice. The ma-
gnitude of the situations ranges from interpersonal violence to school
bullying to mass kidnappings to full-scale warfare.
Restorative justice is built on relationships; wrongdoing from this
perspective is conceived not as a violation against the state but as a vio-
lation against a person or a people. Restoring justice thus includes stra-
tegies to restore the balance in relationships.
Restorative Justice Across the East and the West is written as figh-
ting persists in Iraq, millions have taken to marching for peace across
the globe. This special issue is timely because the topic—restorative
justice—is about healing and reconciliation, often between warring for-
ces. Restoration is a form of peacemaking that is as old as history.
This collection of articles is timely, moreover, in light of the call
by the United Nations Commission on Criminal Justice and Crime Pre-
vention to put restorative justice on the international map. A UN resolu-
tion supports the establishment of restorative justice initiatives by the
member states. The UN recommends restorative justice as a potential
alternative to imprisonment, as both an alternative form of justice that
gives victims a central role, and as a necessary component of criminal
justice reform.
Significantly, participants at the UN conference discussed the im-
portance of adapting restorative models to fit their own cultural norms.
In Thailand, for example, the concept is called “harmony for social jus-
tice” (Porter, 2005). And the European Union previously had directed
members to provide victim/offender mediation in criminal cases.
Restorative justice, as readers will learn from this collection, is an
umbrella term for a wide variety of related activities. Common to all
these activities is a victim-oriented process to help offenders repair the
harm that was done and to find help for their problems. Restorative
justice, in short, is a set of principles about resolving disputes or reclai-
ming a balance in relationships.
Restorative Justice: A Bridge Between the East and the West 3

The articles in this collection cover a range of topics, all related to


community justice and to the redress for wrongs committed. Among the
areas covered are family violence, community policing, juvenile justice,
traditional Native forms of justice, community reparation, and environ-
mental restoration.
As a movement, restorative justice owes a great deal to earlier
movements and to a variety of cultural and religious traditions. Its roots
are in Native people’s traditions in North America and New Zealand
and in traditions of the Mennonites (a pacifist Christian sect) in Canada
and Indiana. As described by Howard Zehr in The Little Book of Re-
storative Justice (2002), restorative justice is about righting a wrong not
only for victims but also for offenders and communities. It is about ma-
king amends rather than punishment, restitution rather than retribution.
The teachings of restorative justice are consistent with those of the
world’s great religions, with the Jewish concept “tikkun”—to heal, re-
pair, and transform the world and with the Christian notion of forgive-
ness and belief in the duty to overcome evil with good. From the East,
Confucianism supports the theory that human nature is basically good.
Confucius taught his disciples the principle of ren or truthfulness and
kindness. Confucianism, according to Hui and Geng (2001), advocates a
restorative approach to matters of crime and justice. It assumes, first
and foremost, that the first victim of any criminal offense is the offender
himself or herself.
Although China today is a nation in which punishments are harsh
(both China and the United States have high execution rates—thousand
annually for China; 50 or so annually for the US), the spirit of restora-
tive justice, as Hui and Geng suggest, is present in Chinese culture. The
traditional Chinese emphasis is on harmony between persons and on the
unity of humanity with nature. Influenced by Confucian communitarian
ideology, the Chinese criminal justice system relies on grassroots com-
mittees to provide social control and to resolve conflict.
Religion can play a major role in instilling peace within and bet-
ween countries racked by violence. In post-apartheid South Africa, for
example, the Truth and Reconciliation Commission called on victims of
the previous regime to tell their stories while the perpetrators were for-
4 Restorative Justice Across the East and the West

ced to listen. Bishop Desmond Tutu was a key leader in this historic
process.
Central to Buddhism is compassion. Buddhist justice grows out of
a compassion for everyone involved when one person hurts another.
Loy (2001) contrasts Tibetan culture in which a citizen is seen as having
a legal duty to help others with the US legal tradition that the truth
emerges from a clash of opposing forces asserting their interests. In
contrast to Western justice, in Tibet, moreover, there is no clear division
between religion and the state. Such a judicial system would not be ac-
ceptable in most of the Western world.
Breton and Lehman (2001) contrast Western society’s focus on se-
parateness and individualism with the fundamental truth of universal
connectedness in the Buddha’s teaching. The most basic truth about
human nature, from this perspective, is our interrelatedness within the
whole and the infinitely diverse systems that are all linked to each other.
In China, social control is vested in the community, so intrusion into
other people’s lives is customary (Chen, 2004). Chinese crime control,
accordingly, often works not from the top down but from the bottom up.
The risk in such a pervasive informal system of social control, as Chen
indicates, is in shaming the individual in ways that may be personally
harmful and counterproductive (Westerners, in contrast, tolerate perso-
nal deviance to a larger extent and rely on the courts when serious devi-
ant behavior occurs).
Xinzhou Zhang (2004) agrees with this assessment of the Chinese
criminal justice system. He further asserts that victims do not get their
needs met within this system and that there is no incentive for offenders
to pay compensation for wrongs done.
Framed in a context of connectedness, justice at one level filters
down through all the levels, as does injustice. What is needed is a jus-
tice system that is responsive to the needs of people and that resolves
conflict among them. Today, experiments are taking place universally
to address wrongs that might have been ignored previously, experiments
that involve a new consciousness of the harm caused by individual
violations and historic traumas against whole populations. We need to
engage governments, communities and social institutions in healing
trauma from crime, war, and other violations. And instead of ostracizing
Restorative Justice: A Bridge Between the East and the West 5

the violators, we need to help them make amends so that they can rejoin
society. To achieve these ends, a major paradigm shift is required. At
the forefront of such a shift is the restorative justice movement. Law-
yers, judges, tribal members, and social workers are involved in such a
restorative movement.
Restoration of the physical environment due to our exploitation of
natural resources is a matter of urgency for the planet. Uniquely, Fred H.
Besthorn, in his chapter on the restorative justice philosophy, which is
included in this book in Part IV, demonstrates an appropriate model for
environmental justice. Because we depend on nature we must work
toward restoring a harmonious balance between our lifestyles and our
natural resources.

Restoring Our Natural Habitat


If we conceive of the earth as a living organism that should be respected
and not defiled, and if we recognize the need to connect with nature on
a spiritual, intuitive level, then we will see that much of what passes for
progress plays havoc with the elements. The soil, water, and the air are
all contaminated through our increasingly unsustainable industrial agri--
cultural system. Nitrogen-based fertilizers have polluted the groundwa-
ter and killed off aquatic life in the waterways.
China is expected one day to surpass the US as the globe’s leading
emitter of greenhouse gases. Coal-burning power plants and intense
traffic congestion spell out the possibility of staggering environmental
degradation in China (MacLeod, 2007). Half the cities are choked by
hazardous air, and acid rain falls on a third of the country’s land mass.
Fortunately, the Chinese government is taking some positive steps, for
example, in encouraging the use of public transportation and the closing
of the nation’s smaller coal-fired power plants. Learn about these
initiatives at the new Beijing-based Global Environmental Institute
which is joined by the Worldwatch Institute to produce the newsletter
China Watch at www.worldwatch.org.
On the path to environmental restoration, Fred H. Besthorn urges
that we listen to the voice of the earth and heed its call. The calling of
nature takes us beyond the physical, into the spiritual realm. Restorative
6 Restorative Justice Across the East and the West

justice, the subject of this book also relates to restoring the balance to
the earth, helping the earth heal after it has been violated. “If we let the
earth heal itself, it will”—so says Native American commentator, Jerry
Young Bear Jr. (2007).

Purpose of the Book


The purpose of this book is twofold. The first and primary purpose is to
introduce readers to restorative justice as a form of conflict resolution
with practical applications for work with individuals as victims or
offenders. Advocacy for social policy change in the criminal justice sys-
tem is a second part of this mission; the goal here is to ensure that the
interests of victims are met and that offenders, where appropriate, have
the option of making restitution.
The second major goal in assembling this collection is to propose
restorative justice as a bridge between East and West, as a force that can
transcend cultural and religious differences. The values on which re-
storative justice is based are universal even as the principles of social
work, the helping profession, are universal. Studying restorative strate-
gies across various levels of society and cross-culturally holds promise
for a coming together of social work East and West.

Organization of the Book


Restorative Justice East and West begins with writings that are the most
directly relevant to the practice side of social work. Dennis Wong, for
example, takes us into the realm of work with youth. A pioneer in trans-
lating restorative concepts from New Zealand and Australia into Hong
Kong’s criminal justice systems and schools, Wong shows us how con-
ferencing can empower both social workers and clients in Chapter 2.
The anti-bullying work that Wong has done in Hong Kong is truly
amazing; we are honored that he agreed to write a chapter describing his
innovative work for this book. The research which he has directed truly
demonstrates how the implementation of restorative approaches can
transform student behavior and build a healthy school community.
Restorative Justice: A Bridge Between the East and the West 7

Next we turn to Norway. Because there is much we can learn from


Norway, a nation ranked as the number one nation in human develop-
ment by the United Nations, I invited Ida Hydle, Professor at the Center
for Peace Studies at the University of Tromsø, to describe some of the
innovative work that is done in her country. Her description of youth
justice in Norway in Chapter 3 draws our attention to a model that can
be used throughout the world.
In Chapter 4, JoAnn Lee and Rhodora Ursua take us to San Jose,
California, in the description of their work at the Asian Restorative Jus-
tice Project. Theirs is an example of restorative social work in action.
What is the relevance of restorative justice strategies to women’s
issues, to such situations as rape, child abuse and neglect and, more
controversially, domestic violence? These are the issues I tackle in
Chapter 5. Taken together these chapters comprise Part II, Micro Level
Strategies.
Part III, Macro Level Strategies, introduces us to restorative justice
in the community. Mona Schatz provides a general overview of com-
munity restorative work. Expanding to the global arena, I provide an
overview of community reparations as the subject of Chapter 7. Then,
more specifically, Rita Takahashi in the following chapter provides a
detailed account of the belated decision by the United States, after
almost 50 years, to help compensate surviving Japanese American citi-
zens for the gross violation of their human rights when they were
confined in prison camps during World War II. Chapter 9, by prison
reformer Stephen Chi-Kong Lee, shows us how restorative justice prin-
ciples and ancient Chinese law are compatible and can be further inte-
grated: Both have as their goal the making of a more harmonized so-
ciety.
Next we learn of the important contribution of truth and reconci-
liation commissions in the case history of East Timor, now Timor Leste.
The author, David Androff has done exhaustive research on the work of
the Truth and Reconciliation Commission in Timor Leste, a country
ravaged by foreign occupation by Indonesia. Androff shows how social
work values of self determination are represented in cultural deter-
mination through building on indigenous traditions of justice as forms
of reconciliation. Thereafter, the chapter by Peter Szto focuses on the
8 Restorative Justice Across the East and the West

construct of “race,” its repercussions on inter-ethnic relations, and the


possible application of restorative justice. This section of the book ends
with a unique discussion by Vanmala Hiranandani on the relevance of
the teachings of Mahatma Gandhi to the situation in the world today in
which gross economic wrongs are inflicted upon poor nations by rich,
imperialistic nations. As Hiranandani eloquently argues, restorative jus-
tice alone is not enough to end violence in world affairs because restora-
tive practices fail to get at the root cause of much of the violence; the
seeds for mass violence including war and genocide often lie in the
destruction of the nation-state through exploitative demands by global
market economics.
Part IV, Beyond the Macro Level, moves us into the natural and
spiritual realms. The person-in-the-environment concept of social work
is especially relevant to Chapter 13 by Fred H. Besthorn who leads us
into an examination of the impact of rapidly deteriorating natural ele-
ments and their impact on the world’s ecosystems. From Marta Vides
Saade, who is a member of the El Salvador truth commission and who
has dual qualifications in theology and law, we learn of transformative
spiritualities in China, India, and Korea. There is also information in her
chapter (Chapter 14) on Native American rituals for settling disputes
and promoting healing. Finally, in Chapter 15, Wayne Evens draws on
the teachings of the Dalai Lama to reveal the spiritual dimension of
restorative justice in that great spiritual leader’s work.

REFERENCES
Breton, D. and Lehman, S. (2001), The Mystic Heart of Justice: Restoring
Wholeness in a Broken World, Chrysalis: West Chester, PA.
Chen, X. (2004), Social and Legal Control in China: A Comparative Perspec-
tive, International Journal of Offender and Comparative Criminology, Vol.
48, pp. 523-36.
Hui, E.C. and Geng, K. (2001), The Spirit and Practice of Restorative Justice in
Chinese Culture, in M. Hadley (ed.), The Spiritual Roots of Restorative
Justice, State University of New York Press: Albany, NY.
Loy, D. (2001), Healing Justice: A Buddhist Perspective, in M. Hadley (ed.),
The Spiritual Roots of Restorative Justice, State University of New York
Press: Albany, NY.
Restorative Justice: A Bridge Between the East and the West 9

MacLeod, C. (2007), China Envisions Environmentally Friendly Eco-City, USA


Today, usatoday.
Porter, A. (2005), Restorative Justice Takes the World Stage at United Nations
Crime Congress, International Institute for Restorative Practices, Restora-
tive Practices E Forum, pp. 1-2.
Young Bear, J. (2007), Iowa Roots, Iowa Public Radio, February, 21.
Zehr, H. (2002), The Little Book of Restorative Justice, Good Books: Inter-
course, PA.
Zhang, X. (2004), A Restorative Justice Audit of the Chinese Criminal Justice
System, dissertation, London School of Economics and Political Science.
2
____________________________

Advocating the Use of Restorative


Justice for Misbehaving Students
and Juvenile Delinquents
in Hong Kong
DENNIS WONG

Over the last twenty years since graduating, I have endeavored both as a
social work practitioner and as an academic, to find answers to two
questions: (1) Are there ways of holding badly behaving students and
young people accountable to victims for offending and anti-social beha-
vior while at the same time leave them the opportunity to be rehabili-
tated?, and (2) If restorative justice is a “balanced” strategy, how can it
be implemented, particularly as an alternative to punishing misbehav-
ing students or prosecuting juvenile offenders?
I find that the ideas underpinning restorative justice (RJ) provide an
appropriate answer to my first question. I believe that RJ is a near-to-
perfect strategy for meeting the three major missions of a fair juvenile
12 Restorative Justice Across the East and the West

justice system: sanctioning juvenile offenders through accountability,


rehabilitating offenders through empowerment, and building a safe com-
munity through interdependency. I have also found that RJ can be ef-
fectively put into practice through various conferencing and mediation
techniques (cf Zehr, 1990; Bazemore and Umbreit, 1997; Wachtel, 1997;
Van Ness et al., 2003). As Bazemore and Umbreit (1997) have argued,
the balanced mission of restorative justice specifies clear goals for juve-
nile justice directed at meeting the traditional needs for sanctioning, re-
habilitation, and increased public safety, while at the same time this
form of justice serves the overarching goal of restoration of victims and
victimized communities.
In this chapter, I first describe how it was that I became interested
in delinquency study and restorative practices. Then, I will share with
readers my results in advocating the use of RJ in schools in tackling
school bullying problems. Finally, I describe future options for the deve-
lopment of RJ in Hong Kong. Throughout the study, I draw parallels
with restorative initiatives and traditional Chinese cultural values.

Personal Background
Unwittingly, I had my first experience of practicing RJ when I was very
young. I was born in a working-class family with five siblings in late
1950s in Hong Kong, a British Colony at that time. My father was a
porter, and my mother was a cleansing lady at the same building. At
primary school, my classmates were also from working class families.
Every day after school we fooled around together until dinner time. We
all shared a rather similar belief, perhaps an irrational one: “Despite how
hard we try, working class boys will not have a bright future anyway.”
When we were eleven to twelve, we occasionally shoplifted snacks
from a shopkeeper who sold icecream and snacks with a motorcycle.
This motorcycle was always parked outside the front door of our pri-
mary school. As an adolescent, I was on the verge of delinquency and
did not do well at school. During the first and second years of secondary
school education, I became addicted to gambling. My friends and I used
foul language frequently and sometimes played truant to go out gamb-
ling. Deep down in my heart, I did respect my parents and wanted to
Misbehaving Students and Juvenile Delinquents 13

keep a good relationship with my family members. Nevertheless, I was


rebellious at that time and was greatly influenced by peers who also
came from frustrated and alienated working-class backgrounds.
In engaging in unruly behavior, one is torn between two Chinese
salient values, “filial piety—respect parents” and “gang brotherhood.” It
was not until my first year in high school that, with the help of a pastor
and some Christian Brothers and Sisters in the church, I became aware
of the importance of academic performance for one’s future career. I
then decided to start a new life and stopped gambling and fooling
around. Advised by my pastor, I took the lead in restoring my relation-
ship with my parents and siblings, then with my teachers, and with the
motorcycle ice-cream shopkeeper. To recover from the guilty feeling of
hurting others and to show my repentance, I wrote letters of apology to
my parents and teachers. Most important of all, I tried to make amends
to the motorcycle shopkeeper by buying five or more ice-creams at a
time even though I did not intend to eat them all. By doing so, I felt
much better—as if I had repaired the harm I had done. In hindsight I
now see these actions as examples of restorative practices.
During the seventh year of my secondary school life, I barely pas-
sed the Hong Kong Advanced-level Examination and was not offered a
place because of the shortfall of university places. So I worked as a
youth worker for a year before getting into a college to study at a social
work program. After graduation, I became a social worker, committed
myself to delinquent youth work and eventually became the super-
intendent of a boy’s home. In those years, I tried my best to empower
youth gang members and to restore their relationship with their family
members, school teachers and the community. I frequently was involved
in resolving conflicts between antagonistic gangs and acted as a medi-
ator to settle disputes among different “triad” societies. Those contacts
gave me valuable insights into the complex process of becoming a delin-
quent. This provided a solid foundation for my later studies on delin-
quency and mediation tactics.
When I was studying for a master’s degree in social policy at the
University of York (UK) in 1985/1986, I witnessed the detrimental
effects of negative labeling. Reflecting on my experience with the kids
on streets when I was a social worker, I found that some youngsters
14 Restorative Justice Across the East and the West

picked out by the criminal justice personnel had gone to the way of no
return under a retributive justice system. I was lucky not to have been
picked up when I was young. If these youths had been given a chance to
restore relationships with relevant social authorities and to be forgiven
under a restorative process, they would have been empowered. These
experiences with youth have further reinforced my belief that punish-
ment alone is not effective in changing human behavior, and that this
approach is, in fact, disruptive to community harmony.

Restorative Practices are Compatible to Chinese Culture


I joined the City University of Hong Kong as a lecturer in 1989. Since
then, I have endeavored to explore the nature and extent of a wide range
of youth misbehaviors and delinquency in Hong Kong and South China.
A theoretical model, which integrated several major criminological the-
ories to explain the onset and continuation of delinquency, was derived
from my research (Wong, 1996, 2001). In this study, a total of 63 male
youngsters were interviewed in Hong Kong and Guangzhou (South
China). Half of them had committed crimes; another half had not. The
results indicated that, upon each individual’s sequence of significant life
events, their pathway to delinquency could be identified. It was found
that each individual went through a number of different stages before
becoming a persistent delinquent. Perceptions and responses to life
events or experiences of frustration encountered by each individual at
each stage affected their perceptions and experiences in subsequent sta-
ges, whether or not the result was a continuation of earlier rule-breaking
or delinquent behavior.
The findings further suggest that there is no single theory or model,
which can explain the complicated pathways to delinquency for the Chi-
nese youths I interviewed. Although the research shows that some ele-
ments of Chinese culture are crucial to the initiation and continuation of
delinquency (such as filial piety), the major criminogenic factors that
relate to delinquency were shown to involve an interaction between
political and economic factors and social variables. Furthermore, nega-
tive shaming practices pushed some youngsters towards more serious
offending and thus to experience more serious penalties in the criminal
Misbehaving Students and Juvenile Delinquents 15

justice system and so to increase the likelihood of a criminal career. In


contrast, nearly all the non-delinquent respondents did not experience
stigmatizing shaming by social authorities and experienced a happy fa-
mily and school life during their childhood and adolescence.
The key ideas underlying the protective factors that are crucial to
restraining youngsters from the onset of delinquency are the attitude of
continued forgiveness by social authorities and the respect which ado-
lescents developed for their parents or teachers. Forgiveness is the cen-
tral theme of reintegrative shaming practices (Braithwaite, 1989). This
involves the adults in a child’s life showing tolerance and acceptance
together with appropriate social disapproval of delinquency. It seems
that mutual respect between adults and children, or older and younger
people in general, can act as a device for ‘saving face’ and delinquency
prevention—something which is very important in the Chinese culture.
To prevent the onset of delinquency, I suggest that, if we could
cultivate the adolescent’s filial piety toward parents or mutual respect
between adults and youngsters in the form of “respect with love,”
adolescents will be socialized or resocialized as inner-directed people
whose values effectively prevent them from engaging in law-breaking
behaviors. To cultivate an adolescent’s ability to exercise self-control
requires both the cooperation of the social authorities and changes in the
criminal justice system and its procedures. If youngsters feel cared for
and understood by adults, they are likely to react to an elder’s or other
authority figure’s caring attitudes in an appropriate way. A restorative
approach, therefore, deserves consideration as it emphasizes the concept
of Chinese collective responsibility toward crime control (interdepen-
dency) and is consistent with the values of forgiveness, interpersonal
harmony and the centrality of family which are at the heart of Chinese
culture.

Advocating the Use of RJ in Hong Kong


Since 1996, I have been suggesting a reform of juvenile justice system
to allow family group conferencing (FGC) to be used for holding delin-
quents accountable but at the same time reintegrating them into the
community. I started my work by calling reporters or feature writers to
16 Restorative Justice Across the East and the West

publicize the restorative ideas in mass media. Additionally, I submitted


articles of my own. Despite devoting much effort, only two of my ar-
ticles were published in local journals and six pieces of media coverage
were seen in newspapers.
Having devoted time and effort for a few years and getting no
positive result, I was disappointed. By now, I knew that there were in
fact political and social factors hindering RJ’s development. These fac-
tors included:

1. Lack of knowledge by legal, social work, and criminal justice pro-


fessionals of the modern concepts of RJ at that time. Hong Kong
people had grown accustomed to the British criminal justice system
and tended to think that RJ was closely related to mediation.
People’s mediation committees had been adopted by the mainland
Chinese government just after 1949. The Communists had used
various local committees as part of their ongoing effort to monitor
the society and mobilize support for Party policies. The informal
network of control such as security mediation committees were set
up to closely monitor the activities of individuals since the post-
revolutionary period in early 1950s.
2. Worry by Hong Kong residents about whether “real” justice could
be achieved outside the court system and that resolution might be
influenced by party-line politics within the communist China. There
was widespread concern about the spread of ambiguous criminal
practices in Hong Kong, just after the handover of Hong Kong in
1997, and as a consequence, legal justice professionals had a very
negative view of any proposals that endorsed an informal model of
social control.
3. The absence of a “presumption of innocence” concept in the Chi-
nese judicial system. The legal professionals and politicians in Hong
Kong have expressed concern that RJ may render the criminal
justice system ineffective, nourish abuse of power, encourage false
restoration or even create greater injustice.
4. The absence in Hong Kong of a legislative basis for using restora-
tive procedures to respond to offending (compare for example the
Misbehaving Students and Juvenile Delinquents 17

Children, Young Persons and Their Families Act, 1989 in New


Zealand). Nor do we have well trained conference facilitators.

As the Hong Kong government has so far been reluctant to reform the
traditional retributive system of responding to young people who offend,
I have re-orientated my work direction to focus on advocating the use of
restorative practices outside the judicial system and promoting RJ con-
cepts to teachers. I started to train social workers to run restorative
conferences or victim-offender mediation (VOM) so that juvenile delin-
quents might have the chance to repair harm they caused to victims the
community, and at the same time, to find a way of providing improved
arrangements for the guardianship of juveniles who were not receiving
appropriate support from their families. Since mid-1997, I have been
working closely with a team of social workers to conduct victim-offen-
der mediation for juveniles involved in minor crimes. The forum for me-
diation is a voluntary one.
The social workers work in a “Juvenile Self-Strengthening Team”
of a non-governmental organization (NGO). Clients are normally aged
under 18, have committed minor crimes such as shoplifting and com-
mon assault in the local neighborhood, and been placed under the Police
Superintendent Discretionary Scheme. The Scheme provides community
support services to those who are diverted from prosecution to the police
cautioning project. As the consultant of this project, I have taught the
social workers to run conferences. Having connected with a TV program
producer, one TV production team followed my working schedule for a
month and had eventually documented a true case of a restorative con-
ference that I conducted. This was the first restorative conference that
ever appeared in a TV program (Wednesday Report, Hong Kong TVB,
21 July 1999). From then on, more and more restorative confer-ences or
VOMs have been tried and more people had heard of the term “fuk he”
(restoration).
18 Restorative Justice Across the East and the West

School Bullying, Blaming, and Restorative Practices


Hong Kong is a highly competitive society in all aspects—politically,
economically, and academically. In a densely populated city like Hong
Kong, schools have been putting a lot of emphasis on boosting up aca-
demic results instead of focusing on personality development. In order
to achieve a good academic reputation, teachers are always busy in
teaching, running supplementary classes and marking assignments. They
feel they have little time to give to counseling and student guidance. In
most circumstances, juvenile gangs that bully others may be treated as
playing “bullying games” and teachers do not have time or skill to deal
with them. If teachers do intervene, a blaming, admonishing approach is
commonly adopted.
In 1997, when a skinny 14-year old boy named Luk was tortured to
death and burned as a result of group bullying, people began to be aware
of the detrimental effect of bullying (Apple Daily, 1999). In 1999, 13
teenagers were convicted and sentenced. Four were sentenced to “life
imprisonment” and all others received a heavy penalty ranging from 23
to 27 years of imprisonment (Oriental Daily, 1999). A detailed analysis
of the case indicated that Luk, without friends and not doing well in
school, often wandered in the streets with a group of neighborhood chil-
dren. The group was generally seen as a gang in the eyes of residents
since they were school dropouts. Although Luk was continuously bul-
lied by a number of group leaders, he never told anyone about it or
thought of leaving the group, because he was afraid of revenge and the
loss of his “friends.” Having encountered little resistance, the group
leaders stepped up their bullying acts and began the vicious cycle of
bullying (Wong, 2004). Subsequently, more and more incidents of
school violence were brought to the attention of the public. In 1999, a
group of secondary students were reported for fighting each other out-
side the school and a teenage girl was sexually harassed by a group of
her classmates on the stairs of a housing estate near the school (The Sun,
1999; Ming Pao Daily, 1999). In 2001, a boy hurt his classmate with a
chopping knife during the school recess after being verbal bullied for
several months (Ming Pao Daily, 2001). All these events caused alarm.
There is no denying that a victim of repeated bullying, especially
physical bullying, can be abused to the point of death, that a bully will
Misbehaving Students and Juvenile Delinquents 19

get used to maltreating the others without any sense of remorse if such
behavior goes unchecked, and that bystanders can be inhibited from
taking the right action if intimidated by the bully. The process by which
school bullying is learned is circular: a victim becomes a bully, and, in
turn, creates more victims and more bullies. As teenagers enmesh them-
selves in bullying subcultures, they become insensitive to others’ feel-
ings. So, instead of harsh disciplinary action, I favor the restorative
practices of mediation and of mending broken relationships in tackling
bullying.
After joining the 1st International Forum on Initiatives for Safe
School in South Korea in June 1999, I became aware of the importance
of evidence-based intervention strategies. I obtained several research
grants to continue research on the impact of restorative practices, and, in
particular, to experiment with anti-bullying programs.
In 2002, my associates and I published results of the first compre-
hensive survey on school bullying (Wong et al., 2002). This study of a
sample of 7,025 Chinese primary schoolchildren found that over half of
the sample had witnessed physical bullying and social exclusion in the
last six months. About a quarter (24 percent) reported that they had phy-
sically bullied another child during the preceding six months. Nearly a
third (32 percent) reported that they had been the victims of physical
bullying at some time. The prevalence of school bullying was particu-
larly high in senior primary school classes. These figures of physical
bullying reflect a relatively high prevalence of school violence com-
pared with those found in Norway, US, and UK (Wong, 2004).
In 2002, a survey on teachers’ perceptions towards school bullying
in secondary schools showed that over 80 percent respondents said that
anti-bullying programs had never been organized in their schools
(Wong and Lo, 2002). Nor had peace education courses, anger manage-
ment workshops, or anti-bullying seminars been offered.

A Pilot Anti-Bullying Program—A Whole-School


Restorative Approach
Few school systems in Hong Kong were aware of the use of a whole-
school restorative approach for tackling or preventing the problem of
20 Restorative Justice Across the East and the West

bullying. As part of our research, we worked with a group of teachers


and a social worker to try out the “Whole-School Restorative Appro-
ach” in a secondary school in Taipo district in Hong Kong from 2000 to
2001. The objectives of the project were to create: a peaceful and happy
learning culture among pupils; to decrease the number of bullying in-
cidents; and to enhance pupils’ intra-personal as well as inter-personal
skills.
Based on our experience of restorative practices, we organized a
series of activities for parents to encourage their participation in the
program. At the beginning of the academic year, our team used the
orientation weeks to provide information to parents about the preva-
lence and causes of bullying. We publicly invited parents to join in the
anti-bullying movement in order to respond to the problem of bullying
proactively and restoratively. As well as giving mini-lectures, a group of
social workers provided training to parents on communication skills,
and on the ways of building a rapport between parents and children
using role-plays and demonstrations. The program also effectively told
parents that the school is taking bullying very seriously but at the same
time adopting a restorative approach to actual instances of bullying
rather than relying on punishment or exclusion. Thus, when the school
finds that a child is being bullied, parents will be formally invited to
attend conferences together with the children involved.
In the second month of the program, we organized a staff deve-
lopment day for the school principal, teachers and social worker staff of
the school where I shared information on recent overseas and local
research findings in bullying and the use of restorative methods for
preventing and tackling bullying. During this training workshop, a clear
message was passed to the teachers: “Bullying can grow to become very
serious or it can be nipped in the bud” (Sullivan, 2000). If teachers
know of bullying or suspect that it is occurring, they should deal with it
in a systematic manner. At the end of the workshop, participants were
asked to plan policies and procedures for counselling bullies, assisting
victims and educating bystanders in their school. They were also en-
couraged to run a series of peace education curriculum for students.
After the staff development day, the school authority decided to set
aside 90 minutes of class time each week to run a peace education
Misbehaving Students and Juvenile Delinquents 21

course for all form one, two, and three students within the regular time
of formal curriculum. In this way, each student will receive a total of 21
hours of peace education in the academic year, a first for Hong Kong.
Table 2.1 shows the outline of the peace education curricula. The pro-
gram consists of four major parts such as self-understanding, emotional
control, problem-solving skills, and interpersonal communication skills
(Wong and Lee, 2005).
In summary, our works have involved a number of steps aimed at
promoting restorative justice in Hong Kong. Aside from publishing re-
search results, we have:

1. Published a number of academic articles, research monographs and


text-books in the field of RJ and school bullying and at least five
sets of restorative practice packages for social workers and teachers.
2. Trained a number of social work students to provide RJ in schools
and promote restorative practices. Three of these students eventually
have become key staff of the Center for Restoration of Human
Relationships described below.

The First Center for Restoration in Hong Kong


In August 2000, with the support from a group of dedicated school prin-
cipals, social workers and social work scholars, I set up the Center for
Restoration of Human Relationships, a voluntary organization commit-
ted to promoting harmony in human relationships.
The center has been actively involved with restorative practices in
schools, providing professional support in mediation, and other activi-
ties such as publications, seminars and workshops related to restoring
harmony in human relationships. With limited resources, the Center was
run by three part-time staff in its first year of service. As the Chairman
of the Center, I frequently went to schools to conduct conferences when
there were serious conflicts between students. This also provided an op-
portunity to demonstrate for teachers the relevant skills for running a
conference. During 2000 to 2002, I facilitated at least 10 conferences in
schools.
22 Restorative Justice Across the East and the West

Table 2.1: Summary Content of the Peace Education Curricula


Session Theme Objective Content

1. Introduction • Introduction • Ice-breaking games


• Norms setting • Setting group norms
• Ice-breaking • Signing group contract
2. Self- • Recognizing personality • Making a passport
understanding individual uniqueness • The Bingo Game: Knowing others
3. Emotion • Understanding the existence of • Worksheet 1: Drawing your face
Control, emotions • Worksheet 2: Finding words
Anger • Familiarizing with different about emotion
Management emotional states • Worksheet 3: Differentiating positive
• Knowing emotional behavior negative emotions
4. Mid-Term • Knowing about how to express • Game: Mood matching cards
Evaluation control emotion • Worksheet 4: Self-reflection on
emotion state
5. • Knowing about how to be a • Game: Mood One-Two-Three
congruent individual • Worksheet 5: Emotion thermometer
• Learning the relationship • Game: Listening to songs
between emotion action
6. • Understanding the belief system • Video show: Belief system
of human being • Role-play: Belief emotion matching
• Teaching skills in anger • Worksheet 6: Goodbye to
management irrational beliefs
• Reflecting what we have learnt • Filling in the mid-term evaluation
questionnaire
7. Problem • Knowing about perception • Picture show: Observation
Solving • Learning creativity perception
Skills • Knowing steps for solving • Mini-lecture: Different perceptions
problems • Game: Unlimited creativity
8. • Learning how to set goals for • Game: Blind searching in the sea
problem-solving • Game: Where are the alphabets?
• Understanding EQ problem • Game: Building a bridge
solving abilities
9. • Exploring priority of values • Video show: “The Boss up there”
• Learning inter-personal • Group discussion:
communication skills Communication thinking
Misbehaving Students and Juvenile Delinquents 23

Table 2.1 (continued)


Session Theme Objective Content

10. Positive • Knowing relationships between • Mass program: In the society


Values values and society • Group discussion: Self values
11. Interpersonal • Teaching listening • Game: A big television
Communi- concentration skills • Game: Blinder drawing
cation Skills
12. • Teaching verbal expression • Game: An advertisement show
presentation skills
13. • Enhancing non-verbal • Game: Who is the leader?
communication skills • Game: A silent mouth
• Learning active listening skills • Worksheet 7: Non-verbal skills

14. Conclusion • Understanding life challenges • Mini-lecture on life challenge


Final • Evaluating the effectiveness • Evaluation: Filling in the final
Evaluation evaluation questionnaire

Before each conference, separate meetings were organized for offenders


and their supporters as well as for victims and their supporters respec-
tively. The model adopted was based on “Victim Offender Mediation
Deepening Our Practice Manual” (Mediation Services, 2001).
Conferencing is a delicate process critical to the outcome of resto-
ration. To be a good mediator or facilitator, one has to be genuine, im-
partial, speak less and listen more. Moreover, a mediator or facilitator
has to be able to apply the reframing technique to facilitate understan-
ding of the conflicting positions and interests of the parties involved.
Furthermore, a mediator should know how to induce forgiveness and
acceptance of the conflicting parties, healing both the bully and the
victim. This is the most difficult part.
To help teachers to grasp the idea of mediation, the Center for
Restoration has translated the VOM Manual (Mediation Services, 2001)
into Chinese. With the addition of some local experiences and examples,
the first Chinese VOM manual was eventually published in April 2004
(Wong et al., 2004). So far, this book is well received in Hong Kong.
24 Restorative Justice Across the East and the West

In January, 2003, I took a group of social workers to receive a five-


day intensive training as a conference facilitator in Bethlehem, Pennsyl-
vania with Ted Watchel, the Chairman of International Institute for Re-
storative Practices. Thereafter, the Center for Restoration, signed a con-
tract with the International Institute for Restorative Practices (the IIRP)
in December, 2003. This contract allows us to conduct “Restorative
Conferences Facilitator Training” in Hong Kong, Taiwan, Macau, and
mainland China. So far, over 400 teachers, social workers, psychologists,
and pastors have been trained since January 2005. By now, more Chi-
nese teachers have understood the user-friendly Real Justice Approach
(O’Connell et al., 1999). The Center had provided more than 2,000
workshops to social work and teaching professionals, student mentors,
and parents in Hong Kong since 2000. With the help of mass media,
more and more people now know what RJ is. To reiterate, being a social
work scholar, the most rewarding thing is not about receiving research
grant money or having a product successfully commercialized. The most
important thing of all is to see positive change in people and society.

Effectiveness of Restorative Whole-School Approach in


Tackling Bullying
Research literature has shown that some whole-school anti-bullying pro-
grams might create a counter culture to school violence and break the
vicious cycle of bullying (Arora, 1994; Hopkins, 2004; Limper, 2000;
Rigby, 1996; Rol, 2000; Suckling and Temple, 2002; Thompson et al.,
2002). Based on their intervention procedures and practice wisdom, I
have continued to investigate the effectiveness of restorative approach in
tackling bullying in Hong Kong. From 2004 to 2006, with the support
by a grant from the Research Grants Council of the Government of
Hong Kong, I worked with a group of scholars to conduct a two-year
longitudinal study researching the effectiveness of Restorative Whole-
School Approach (RWSA) in four government-aided schools in both
experimental and control conditions (Wong et al., 2007).
The study consisted of an orchestrated intervention program and a
range of research studies aiming at investigating the bullying conditions.
An intervention team was set up to implement the RWSA program,
Misbehaving Students and Juvenile Delinquents 25

while the research team focused on the scientific investigation of bul-


lying conditions and related factors. Four schools participated in the
study. Based on qualitative and quantitative assessments including field
observation, documentary analysis, focus group interviews, and objec-
tive assessments, one school (School A) was assessed to have adopted
full implementation of the RWSA; two schools were assessed to have
partial implementation (Schools B,C), and one school did not implement
RWSA so was taken as the control group (School D).
Surveys were administered to collect students’ (N=1,480) ratings on
bullying behaviors and other student behaviors. Three rounds of student
surveys were conducted, namely before, during, and after the RWSA
program. A total of 1,480 Secondary 1 (Form one) to Secondary 3 (Form
three) students participated in the survey, in which 1,176 participants
were successfully matched for within-subject analysis. Students’ bully-
ing behaviors, self-esteem, caring behavior, inappropriate assertiveness,
lack of empathy, and their ratings on quality of school life (sense of be-
longing and perception towards teachers) were measured.
In general, the pre-study baselines of bullying behavior were more
or less similar among the four participating schools (p>0.01). Regarding
the post-study between-group comparison, School D (control group) in
comparison with the experimental groups (Schools A,B,C) was found to
have more negative behaviors (hurting others, bullying, lack of empathy)
but less positive behaviors (caring behavior, harmony in school, positive
perception, and sense of belonging) (all p<0.001). No significant dif-
ference was found on self-esteem among the four schools. Regarding
pre-/post-study comparison (within-subject design), School A showed
significant decrease in bullying behavior (p<0.001) and higher self-
esteem (p<0.001) after the study. No difference was found in other do-
mains at 0.01 levels. This suggests that the RWSA program was signi-
ficant on combating bullying behavior, as well as enhancing student’s
self-esteem at the same time. Mixed results were found in partial imple-
mentation schools (School B and C). No significant effects were found
in self-esteem, lack of empathy, and harmony, while caring behavior as
well as positive perception was significantly lowered. Harmful behavior
continued to be a problem in both schools. Inconsistent results were
found in bullying and sense of belonging. It was evident that without
26 Restorative Justice Across the East and the West

whole-school participation, the effects of intervention program were re-


duced markedly. For the control group (School D), bullying was getting
worse (p<0.01) and all positive behaviors (except caring behavior) were
significantly lowered in the post-study measurement (p<0.001). No sig-
nificant pre-/post-differences were found in self-esteem, lack of empa-
thy, and hurting others. It was clear that without any RWSA implemen-
tation the situation was deteriorating and much worse over time.
To summarize, the evaluation findings of the present project show a
significant marked reduction of bullying behavior and lack of empa-
thetic attitudes in the experimental group as compared with that in the
control group. Bearing in mind that a heightened awareness of bullying
and bullying behavior among students might have led to an elevation in
levels of reporting (Smith and Sharp, 1994; O’Moore and Minton, 2005),
the major finding of the present project clearly indicates a measurable
level of success of the RWSA. When we examined the actual implemen-
tation of the RWSA programs, we have identified key elements that
were highly related to the program success. These include:

(1) School management, esp. the principal, having a positive at-


titude in adopting the RWSA for dealing with bullying.
(2) School having a restorative goal and guidelines in dealing
with bullying.
(3) Collegiality among teachers and staff in school in building a
harmonious school.
(4) Organizing training for teachers.
(5) Involving parents in promoting school harmony.
(6) Making use of external resources/manpower to conduct a
peace education curriculum.
(7) Organizing weekly assemblies talking about mutual respect,
school harmony and restorative practices.
(8) Training students as peer mediators.
(9) Educating bystanders to take appropriate responsibility.
(10) Providing training to students through restorative education
curriculum.
(11) Enhancing teachers’ knowledge and skills in restorative prac-
tices.
Misbehaving Students and Juvenile Delinquents 27

Integrating Restorative Justice Into Juvenile Justice:


The Way Ahead
Back to the period from 2002 to 2004, I was also involved in a project
commissioned by the Government of Hong Kong which investigated
alternative measures for treating juvenile offenders in Hong Kong (Lo et
al., 2005). The research team identified six jurisdictions representing a
variety of alternative practices in their juvenile justice system as the
samples of the study. They were England and Wales, Singapore, Canada,
Belgium, New Zealand and Queensland, Australia. Subsequent to identi-
fying jurisdictions for study, the research team visited some of these
countries to obtain relevant materials and to seek collaborating experts
for this research. A seminar brought these experts together in Hong
Kong in 2002 and enabled relevant government officials and others
involved in working in the area of juvenile justice to hear and discuss
the experience of these various jurisdictions. In submitting our report
and recommendations to the Hong Kong Government, we proposed a
number of pre-court restorative options including the use of family
group conferences for developing restorative plans to respond to ju-
venile offending. Our suggestions are currently under discussion in the
Legislative Council. It is hoped that subsequent law reform procedures
and related restorative options will be introduced.
Despite the efforts of the past 10 years, I am aware that RJ is not a
finished project in Hong Kong. In the words of Lode Walgrave:

“To actualize its potential fully, a maximalist version of RJ must be


developed with the aim of providing restorative outcomes to a maxi-
mum number of crimes in a maximum number of possible situations
and contexts, including those where voluntary agreements are not
possible and coercion is needed. However, RJ must predominantly
remain a model in which voluntary settlements between victims, offen-
ders, and communities are based on free agreements between the par-
ties concerned. But if RJ was limited o such processes, it would be
condemned to stay at the margins of the criminal justice system,
probably leaving majority of offenders to this very problematic
punitive system and denying the victims of the most serious offenses
the benefits of restoration” (Walgrave, 2003: 34).
28 Restorative Justice Across the East and the West

I understand that it may take years to reform an established legal


system in any stable society. However, I think, we should not be in a
hurry to actualize RJ’s potential fully. Even if we might be condemned
for moving too slowly, we have to make sure that RJ must be imple-
mented in an open, fair, and just manner. For example, RJ practices
were being operated in Communist China long before the concept was
articulated in the Western world. The Chinese preference for mediation
is deeply rooted in Confucian philosophy, which sees social conflict as
disrupting the natural order of life.
To conclude, in Hong Kong and mainland China, Van Ness’s idea
about building a RJ City (a research and design project to conceive what
a jurisdiction might look like that responded to all crimes, criminals
victims as restoratively as possible) seems at present to be a dream,
especially to those who have experienced more than 40 years of the
informal, unregulated and often arbitrary social control system currently
operating in communist China. There is certainly a need for a more
inclusive form of RJ in Hong Kong. Perhaps this is possible as Hong
Kong is a more open judicially-based international region than the
mainland. Though I do not believe RJ is a complete answer to effec-
tively dealing with all conflicts, I am sure that it deserves to become an
integrated part of the practice in relation to both school-discipline and
juvenile justice systems. For the present, we need to continue to develop
more examples of good practice and carry out research to ensure that our
strategies are demonstrably effective before incorporating RJ as a statu-
tory method of dealing with offenders of all ages for all offenses.
Misbehaving Students and Juvenile Delinquents 29

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3
____________________________

Youth Justice and


Restorative Justice in Norway
IDA HYDLE

In this chapter I will examine some historical traits of Norwegian Youth


Justice, especially from the 19th century onwards, with an emphasis on
the last two decades. This investigation will be based upon a particular
societal perspective and will consider the question: How can we provide
justice for youth who get into trouble in today’s society?
A partial answer comes in the form of restorative justice as a recent
innovation that avoids many of the problems of the traditional criminal
justice system.

Introduction
“They are too young,” exclaimed a prisoner, not too old himself, as I
visited the inmates (18 altogether) in the local prison, and we all had
coffee and cakes together.
34 Restorative Justice Across the East and the West

“Young people should never be in prison, they learn how to be-


come criminals.” In introducing this “criminal” concern I shall present a
case:
He is the child of a father who was diagnosed as a schizophrenic
and who sexually abused his children. His mother tried to survive in a
difficult social and emotional state—before her husband died of cancer.
The boy was persecuted at school by his fellow pupils and started
drug use at an early age. He was expelled from secondary school and
soon after was imprisoned because of drug use (and some dealing?). In
prison he was suicidal and self-destructive, hurting himself in various
ways. One episode, as my friend told me, may illustrate: once he was
released from prison, against his will, in thirteen degrees below zero, in
track shoes and light clothing with 350 Norwegian kroner ($50 US) in
his pocket. The prison personnel did not inform the health services nor
his mother. She strived to search for him and found him together with
my friend. The ins and outs of prisons, psychiatric hospitals, and other
health and social institutions are numerous, all of them marked by un-
systematic, unplanned emergency solutions. He has never received pro-
per or planned care, including mental health care, in spite of his and his
mother’s appeals or demands. My friend did a rapid calculation and
found that the public costs amount to 200,000 Norwegian kroner per
month in what she calls fire extinction.
In light of the GERN project, a European scientific research project
on crime and prevention, with an emphasis on the historical and ideo-
logical changes in European juvenile justice, there are a number of ques-
tions that I want to raise regarding this case. The first task is defining
what is considered crime or juvenile delinquency within the Norwegian
context. For comparison purposes: Norway has one of the highest in-
comes per capita in the world, has 4.5 million inhabitants, 12 years of
obligatory state paid schooling, has been a modern welfare state for the
last four, five decades and has one of the lowest crime rates in Europe.
Youth or juvenile justice is not a term in Norwegian language; nei-
ther does one such public body exist to take care of juveniles commit-
ting crimes, but two: the criminal justice system, which is for every-
body over the age of fifteen and the Child Protective Services, which is
for everybody under the age of eighteen. The interrelationship between
Youth Justice and Restorative Justice in Norway 35

the two bodies emerges as a partly unexplored and contested complex of


ideologies, knowledge fields and practices.
Secondly, we need to face and analyze the Norwegian child protec-
tive and crime control policies. How have the Norwegian medico-legal
frames for the handling of this case been constructed? What contem-
porary governing principles by the Norwegian state may be traced in the
case and how did they emerge throughout the last centuries and with a
closer look, throughout the last two decades?
Thirdly, we will explore the practices of the established services
and the professionals working with juvenile delinquents. In my investi-
gation I will shed light on the changes in the formation of the juris-
diction of the Norwegian state and its more or less visible traits and con-
sequences concerning youth justice.
My perspective and position are influenced by my background as a
medical doctor and social anthropologist, having conducted research and
pondered such phenomena as “truth,” “deviance,” “normality,” “crime”
and “violence” for decades.

History of Juvenile Justice in Norway


The Norwegian nation state saw close relations between the emerging
medical, legal, economic, and science fields with the aim of building a
strong state, based upon a law-abiding, healthy and educated population
(Newman and Sending, 2003).
A significant struggle has emerged throughout the era from the end
of the 18th through the 20th century; namely the struggle of the believers
of education against the believers of punishment. The literary historian
Yngvar Ustvedt (2000) has documented from the end of the 18th century
the cruel conditions under which young offenders down to the age of ten
suffered in Norway. The ideological struggle between the educationa-
lists and those of a punitive mindset does, however, seem to have gelled
into one.
The sensational aspect of this history of systematic cruelty against
very young, mostly poor sick boys (i.e., under 18), is not that it existed
but that their poor, illegal and state-acknowledged conditions were
brought to light decade after decade from various sources (parents, tea-
36 Restorative Justice Across the East and the West

chers, and the boys themselves by uproar, fires, suicides or runaways),


without any significant change. It is especially noteworthy that despite
the emerging manifestations of a comprehensive welfare system, there
were some groups which were systematically left out, such as the “bad”
boys, the “travelling people,” persons with mental retardation, and most-
ly poor people.
The history of Norwegian “school homes” is horrifying reading. It
concerns prison-like conditions with overfilled sleeping halls, miserable
food, and the most monstrous punishment methods, where whipping
until bleeding was an everyday occurrence for the most trivial error. But
worst of all was perhaps how the torture was mixed with religiosity,
how the belief in the whip and the belief in Jesus went hand in hand in
the education of the children. Two remarkable women stood up through
decades as significant defenders for the rights of these children, the
journalist and author, Gerd Benneche (1967, 1979) and the rector of
school of social work in Oslo, Gerd Hagen (2001).
The Norwegian history of the fates of “bad” ( mostly poor) boys up
to the 1980s is a sad history of a particular yet significant part of the
development of Norwegian social conditions in the broader sense. This
history is the basis upon which present day ideologies, knowledge and
practices are resting. My aim here is to refer with a broad pencil to some
features in this history up to the last two decades.

Norwegian “Youth Justice”


There never was, and still is, no such thing as “youth justice” in Norway
(or in the Nordic countries as a whole) in the legal sense of the term.
There are neither juvenile courts, nor juvenile judges nor juvenile pri-
sons. The criminal legal procedure is in principle the same for every-
body above the age of fifteen. The criminal court proceedings are the
strictest of all rituals in Norwegian society, and the ritual starts long
before the opening of the case. When somebody offends against the
criminal code, and the police start the investigation, a long chain of
strictly formalized events are set in motion.
Legislation and the administration of justice have long-standing
traditions in Norway. Long before King Harald Hårfagre united the
Youth Justice and Restorative Justice in Norway 37

country at the end of the 9th century, an organized administration of


justice had taken place at the alltingene (assemblies convened for the
purpose of deciding matters of common interest and making laws). As
the well-known 12th century quotation from the code of the Frostating
jurisdiction puts it: “Our country shall be built on law and not by law-
lessness laid waste” (Winsvold, 1996: 1). The current criminal proce-
dure including the jury system in cases before the Court of Appeal was
founded by the Criminal Procedure Act of 1887, although some legal
replacements have taken place lately. A fundamental change was imple-
mentted in 1995 concerning the appeals system. The current penal code
dates back to 1902, but is continuously revised. A significant social trait
of Norway for several centuries is the gradual emergence of legal codi-
fication of one social area after another. For instance, Norway was the
first country in the world to forbid by law the hitting, smacking or
clipping (etc.) of children, (there is even a law which requires munici-
palities to organize music education for children, although not in the
Criminal Procedure Act). A key principle of the Norwegian legal system
is that the politicians in the parliament (Storting) pass most laws as
opposed to case law as in Britain, although there are examples of legal
rules based upon judge-made law as well.
Courts at three levels handle criminal cases: the District Courts, the
Courts of Appeal and the Supreme Court with its independent Appeals
Committee. A fundamental principle in the administration of justice is
the independence of the courts as the third organ of constitutional power
(alongside the legislative (Storting) and the executive (government)
branches). The Ministry of Justice administers the courts, whereas the
Constitution guarantees the independence of the judiciary. All courts on
all three levels hear all types of cases, and there are few examples of
specialized tribunals (e.g., such as juvenile courts as in Italy or Spain).
The criminal court ritual is the visible part of the whole chain of
events. The courts are open to the public and the trials often reported in
the media. These events can be studied as any other ritual with its
technical and symbolic aspects. The other links in the chain of events
can be discovered through the narratives of defendants, victims, (expert)
witnesses and legal professionals (Hydle, 2001).
38 Restorative Justice Across the East and the West

However, these rules and laws do not normally or often apply to


children under the age of eighteen, caught for having committed a cri-
minal offense. There are some practices which are entirely different. If a
person is less than eighteen and the crime sufficiently serious, the police
shall report to the Child Protective Services, CPS, but this is not always
the case, depending upon internal routines, personnel, and priorities at
police headquarters. The CPS in such cases was a public body at the
county level, a child welfare committee, the so-called Barnevernsnemnd,
consisting of a legal professional (as the head), another professional
(often social worker) and one local politically-appointed lay person,
according to rules of court. The CPS may, if necessary, take respon-
sibility for the child and move him/her to a foster home or an open or
closed institution. Such moves may be coercive, if the child or its
parents refuse, that is, the police evidence is turned over to the CPS, not
for prosecution, but for treatment. Older teenagers who commit serious
crimes may be tried in ordinary courts of law and sentenced to prison.
For the year 2004, 61 children were sentenced to ordinary prison as
custodian prisoners, some of them in total isolation, while the case was
under police investigation (Storberget, 2004).
In an article from 1990 called “The Hidden Juvenile Justice System
in Norway: A Journey Back in Time,” the American social work re-
searcher, Katherine van Wormer, described her fieldwork from a “ju-
venile justice” context:

“Norway is the model: Ask about health, child care, social equality,
and Norway leads the world. Ask about juvenile justice, and much
of the world leads Norway. As a practicing social worker in Nor-
way, I set out to discover progressive treatment of children in
trouble by a progressive country. My journey at first led me no-
where, for I was told there was no mechanism for controlling young
lawbreakers’ behavior. This system was so progressive that there
was no system at all. Then some social workers from the “social
office” introduced me to a world hidden from public view, to a pro-
cess that is punitive, arbitrary, and an instrument of social control. It
is a process that has largely gone unexamined, either by foreign or
native observers” (Van Wormer, 1990: 57).
Youth Justice and Restorative Justice in Norway 39

Van Wormer’s concern was with the legal protection of children


within the CPS: “The concern (of the CPS) is not with evidence about
the crimes but, rather, with appropriate treatment for the child” (1990:
58). She questioned the “treatment” practice of the CPS as being a hid-
den punitive practice not exposed to democratic, judicial control: “The
condition of being a child, as a former Supreme Court Justice once
stated, “does not justify a kangaroo court.” The condition of being a
child does not justify years of confinement where an adult, for the same
offense, would receive a suspended sentence, if anything at all” (1990:
60).
Thus, in current Norwegian legal practice young people are to a
certain extent supposedly treated differently from adults. There are
complex reasons and explanations for this double-bind situation. First of
all, the view about age limits concerning “children,” “adolescence” or
“youth” and “adult” have changed during the last two centuries, caused
by changes both in ideologies and practices. Currently the age of cri-
minal liability is fifteen. It was raised from fourteen in 1990, and there is
a constant political pressure from the right wing, populist party poli-
ticians to reinstall the age of fourteen again. Secondly there has been
shifting in strategies concerning the definitions and practices of punish-
ment versus treatment and education, and certainly a mixture of the
three, especially related to children and adolescent persons not comply-
ing with the “normal.” Like van Wormer, Norwegian sociologists have
described how the coercive means in “youth justice” are handled by the
CPS (Falck, 1998, 1999).
Van Wormer claims that the statute in the Norwegian Constitution
of 1814, “No one can be punished except after a Judgement at law” does
not apply to the handling of Norwegian children, e.g. committing cri-
minal acts: “By conceiving of the loss of freedom for a child as treat-
ment rather that punishment, the right of habeas corpus is circumven-
ted,” she maintains. The problem is that even if the child is tried in an
ordinary court, the case is the turned over to the Barnevernsnemnd. Thus
the child will in reality be tried twice by two different legal bodies. “The
system of justice for children accused of crimes or behavioral problems
is therefore often very harsh in Norway. This is in sharp contrast to the
40 Restorative Justice Across the East and the West

criminal justice system in general, which is strikingly lenient … Social


workers helped bring about this system in the first place. The system
which set out to prevent child abuse had now become a key instrument
of child abuse” (1990: 60). At the end of the article van Wormer advised
abolition of the Barnevernsnemd altogether and the introduction of an
independent juvenile or family court.
What has happened with this juvenile justice system after 1990?
First of all van Wormer described a system and its practicing bodies and
actors (she did fieldwork in them) from the 1980s. Secondly, did van
Wormer’s investigation have some relevance or even parallels described
by Norwegians? My concern is to trace three such shifts and investigate
whether they are related to other societal changes in governance, i.e. to
find possible governmental instruments.

1. The New Problem-Oriented Investigations Procedures by the Police


from 2000

The Ministry of Justice’s part of the plan of action for fighting


criminality among children and juveniles delineates the following tasks
for the police:

(1) to use restorative justice as a supplement or an alternative to pu-


nishment
(2) to develop the so-called “concern conversation” (or dialogue), a
structured tool for the police to talk with young people and their
parents about risk behavior related to criminality
(3) to use “youth contracts” as an alternative to incarceration: The
young person agrees with the parents on the one side and with the
police and the municipality on the other to carry out specific
activities such as restitution/compensation for the harm done and
mediation—in addition to the continuing of education, work, and
drug abuse treatment, etc.

Special measures for young persons in prison include a tight relationship


to probation and aftercare services (Kriminalomsorg i frihet) normally
cooperating with the parent(s), CPS, and the school authorities. The
Youth Justice and Restorative Justice in Norway 41

prison rules normally open up for young persons to stay in so-called


“open” prisons which include schooling, preferably close to the inmate’s
home.
Special care in the aftermath of incarceration: This is the task of the
probation authorities, creating a public and a private network for/with
young people. Coordination and cooperation are additionally empha-
sized in order to enhance dialogue and responsibility—between the pri-
son authorities and the municipal services, (such as health, social, hou-
sing, education, and employment).
In short, the police seem to have changed from taking a traditio-
nally past-oriented to a future-oriented approach towards criminality, i.e.
emphasizing risk as the entry to prevention in what the police call “pro-
active and problem-oriented police work situational prevention.”

3. The Use of Mediation as Part of the Criminal Justice Process


from 1991
The National Mediation Service (NMS) has its legal basis in the sepa-
rate Act on Mediation, passed in 1991. The Act, regulations stipulated
by Royal Decree, and particular paragraphs in the Criminal Code and
the Circular Letter of the Director General of Public Prosecution make
up the legal basis of the mediation and reconciliation services. The NMS
is available for free in all Norwegian municipalities. The NMS coor-
dinators are trained as social workers, probation officers, teachers, etc.,
and the mediators are local lay people, representing the community.
Victim-offender mediation has been generally available as part of
the public mediation service since 1994. More and more family group
conferencing is merging into the ordinary mediation services. In addi-
tion, school mediation that partly can be defined as a criminal preventive
measure, is partly available in primary school, and is now also spreading
in secondary school.
The NMS may be regarded as a hybrid between criminal and civil
justice. Although constructed and existing as a legal provision under the
Criminal Legal Act, it serves the rationale for dispute resolution in both
criminal and civil cases. And it certainly breaches with fundamental
criminal legal ideas, such as objective facts, guilt, and punishment. The
42 Restorative Justice Across the East and the West

aim of the NMS is to bring the disputant parties together in order for
them to express emotions and narrate the act or case of dispute once
more in order to come to a common conclusion on their own premises—
whatever that may be. Thus they are their own problem-solvers without
the help of experts on legal or criminal or youth matters. In cases of
juvenile delinquency of a minor nature, as determined by the police, the
agreement between the parties may cause the police to withdraw the
legal claim. Thus the juvenile may solve his or her problem himself or
herself by good conduct, i.e. self-governance.
Criminologist Sturla Falck warns of an unintended consequence of
restorative justice: the use of the NMS does not prejudice the right of the
state to prosecute alleged offenders. This might open “the way for
twofold criminal prosecution for the same offense” (Falck, 2004: 8).
My own research interests lie in this field of restorative justice as a
new and possibly more democratic solution to the contemporary cre-
dibility problems of the criminal justice system. The linguist Hasund
and I are working on a research project called “Conflict Regimes” based
upon a trial project launched by the Ministry of Justice, “mediation as
supplement to punishment in serious cases of violence” (Hydle, 2004;
Hydle and Hasund, 2003). Our findings up to now are that parties in
dispute may reach a considerable degree of satisfaction and improve-
ment in self-esteem and vitality. The dialogues that they develop during
meetings may change their views about themselves and others. This has
happened even in prisons. There is reason to believe that NMS used in
prison may improve the possibilities for a successful rehabilitation, i.e.,
the NMS may function as a supplementary punishment for some, and for
others it may be a way to improve their living conditions on their own
premises.

3. The Implementation of UN Convention on the Rights of the Child


The UN Convention on children’s rights, enacted in 1990, is particularly
relevant for our discussion with regard to Articles 25 and 37 which give
children “who have been placed by the competent authorities for the
purposes of care, protection or treatment of his or her physical or mental
health, to a periodic review of the treatment … ensures that no child
Youth Justice and Restorative Justice in Norway 43

shall be subjected to torture or other cruel, inhuman or degrading treat-


ment or punishment … or deprived of his or her liberty unlawfully or
arbitrarily. The arrest, detention or imprisonment of a child shall be in
conformity with the law and shall be used only as a measure of last
resort for the shortest appropriate period of time.” Article 40 “recog-
nizes the right of every child alleged as, accused of, or recognized as
having infringed the penal law to have the normal legal guarantee, such
as presumed innocence until proven guilty according to law; to be
informed promptly and directly of the charges against him or her, to
have the matter determined without delay by a competent, independent
and impartial authority or judicial body in a fair hearing according to
law, in the presence of legal or other appropriate assistance … to have
the free assistance of an interpreter, to have his or her privacy fully
respected at all stages of the proceedings” (UN, 2000).
These articles emphasize the rights of the child as an individual
with certain claims on the state. The Norwegian legal provisions for the
CPS as well as the criminal justice system have both during the last
decade been adjusted to the UN Convention. In a thorough investigation
and analysis of CPS, the experts came to the same conclusion as van
Wormer (NOU, 2000: 12).

Future Trends
In this chapter my aim has been to trace the changes in governmental
tasks and principles constructed during the last two decades in Nor-
wegian juvenile justice practices. Such practices include medical—
psychiatric measures, schooling, child protective care, police practices,
and criminal legal procedures, punitive procedures—or the lack of such
practices. I have here emphasized just a few of these measures, proce-
dures and practices. One issue which needs more emphasis in particular
is the intersection between the CPS, the prison services and the psy-
chiatric care for juveniles. The Child Care Expert Committee (NOU,
2000: 12) describes this intersection as particularly problematic in Nor-
way, the case which I have described in the beginning of the chapter
may serve as a general and typical example.
44 Restorative Justice Across the East and the West

How did the emphasis on “criminal act” shift into “risk of criminal
act”—in what practices may this shift be observed? In general, especi-
ally within certain state policy practices such as medical care, education,
immigration policy or poverty policy (Sending, 2002), we may trace the
contemporary Norwegian “reform-state” emerging from the nation-state
in the 19th century, through the intermediary “planning-state” in the 20th
century (Newman and Sending, 2003). New public management and
risk control are supposed to be forceful tools for guiding the population
in the reform-state—or rather, that each individual governs him/herself.
There are important tasks ahead for researchers as well as for policy
planners in order to draw careful social, cultural and political charts of
juvenile justice. Practices should be followed carefully in order to eva-
luate the foreseen as well as unforeseen consequences of reforms. Such
reforms, as well as the results thereof, should be seen against the pers-
pective of the UN convention on children’s rights as a new cornerstone
in the Norwegian society.
The punitive, treatment-oriented, and educational caring practices
have emerged to dominate during different periods in the 20th century,
especially with regard to those practices called crime prevention, devi-
ance prevention or sickness prevention. The ideologies of punishment
were overthrown by pedagogical ideas. The professionals were first and
foremost concerned with the pedagogical treatment of the criminal
within the person. The focus upon crime control is to a certain extent
displaced from the states’ punishment of the deviant to what every sin-
gle citizen may do in order to free him/her-self from criminality. Today
offenders are offered courses in managing stress, violence and unac-
ceptable sexual desires as well as courses in self-recognition within the
prison walls. Correspondingly the focus within medical fields is dis-
placed from hygiene where the categories are bacteria, virus contami-
nation to risk where the categories are lifestyle, predispositions and
genes. These strands of thought are spreading to other societal sectors,
e.g. the criminal justice system and the psychiatric system, where one
kind of therapy is a bed in a more-or-less locked room, and the admi-
nistration of narcoleptics or sedatives or both. (I watch the prison guards
distribute such every night to their young and healthy, but diagnosed as
sick, inmates).
Youth Justice and Restorative Justice in Norway 45

Today there is a steady increase in prisons and in the numbers of


inmates, particularly among the young that is disturbing. The incarcer-
ation of youths combined with their exclusion from society is an effect-
tive exclusion from developing and leading a self-reliant life with work
and income, a decent place to live, a family, and a social life. The hope
is that the trend toward restorative justice practices, which reconcile
offenders with the community, will continue with the effect of helping
more troubled youth remain within the community rather than being ex-
cluded from it.

REFERENCES
Benneche, G. (1967), Rettssikkerheten i Barnevernet [The Legal Protection in
the Child Care Services], Universitetsforlaget: Oslo.
———(1979), Taushet: Vern eller Maktmiddel [Silence: Care or Tool of Coer-
cion], Institutt for Journalistikk: Oslo.
Falck, S. (1998), Juvenile Delinquency in Norway. Three Papers on: Sanctions,
Alternatives, Age of Criminal Responsibility and Crime Trends, NOVA
Skriftserie, January.
———(1999), Barnevernet Mellom Hjelp, Straff og Hjelpeløshet [The Child
Protective Services between Aid, Punishment, and Helplessness], Scan-
dinavian Research Council for Criminology: Copenhagen.
———(2004), Restorative Justice: A Giant Leap or Just Another Tool for the
Criminal Justice System? Paper presented at the European Forum for
Victim-Offender Mediation and Restorative Justice, 3rd Bi-Annual Con-
ference on Restorative Justice in Europe, Budapest, Hungary, October 14-
16.
Hagen, G. (2001), Barnevernets Historie: Om Makt og Avmakt i det 20. Århun-
dre [The History of the Child Care Services: On Power and Powerlessness
in the 20th Century], Acribe Forlag: Oslo.
———(2001), Murder Without Motive. An Anthropological Study of a
Criminal Case, disseration, Department of Social Anthropology, Faculty
of Social Sciences, University of Oslo.
Hydle, I. (2004), Prosjektet Megling i Voldssaker ved Konfliktrådet for Hordal,
Evalueringsrapport, Høgskolen i Agder, Oslo.
Hydle, I. and Hasund, K. (2004), Evaluating a Norwegian Restorative Justice
Project: Mediation as Supplement to Punishment in Serious Violence
46 Restorative Justice Across the East and the West

Cases, Newsletter of the European Forum for Victim-Offender Mediation


Restorative Justice, www.euforumrj.org/html/news.newsletter.asp.
Neuman, I. and Sending, O.J. (2003), Regjering i Norge [Government in Nor-
way], PAX Forlag: Oslo.
NOU, Norwegian Official Report (2000), Barnevernet i Norge Tilstsvurde-
ringer, Nye Perspektiver og Forslag til Reformer [Child Protective Ser-
vices in Norway: Assessments, New Perspectives and Reform Proposals],
Oslo, December.
Sending, O.J. (2003), Fattigdom og Politisk Rasjonalitet [Poverty and Political
Rationality], in I. Neuman and O.J. Sending (eds.), Regjering i Norge
[Government in Norway], PAX Forlag: Oslo.
Storberget, K. (2004, December 28), Barn i Fengsel [Children in Prison], Dag-
bladet, p. 42.
UN, United Nations (2000), United Nations Convention on the Rights of the
Child, Adopted by the General Assembly, 1989, www.unhchr.ch.
Ustvedt, Y. (2000), Djeveløya I Oslofjorden. Hitorien om Bastøy og re Straffe-
anstalter for Slemme Gutter [The History of Bastöy and Other Penal Insti-
tutions for Misbehaving Boys], Oslo.
Van Wormer, K. (1990), The Hidden Juvenile Justice System in Norway: A
Journey Back in Time, Federal Probation, Vol. 54, No. 1, pp. 57-61.
Winsvold, L. (1996, July), The Courts and the Administration of Justice in Nor-
way, Information produced for the Ministry of Foreign Affairs, Nytt for
Norge, UDA 138.
4
____________________________

Restorative Justice Principles in


an Asian American Community
JOANN LEE and RHODORA URSUA

In early 2000, the authors worked as Youth Workers for a Restorative


Justice Project focused in neighborhoods with predominately Asian
American families. This chapter will share challenges and lessons lear-
ned of implementing restorative justice in an Asian American commu-
nity in Northern California. The Project was successful because it was a
colla-borative effort with a focus on cultural competency. However, the
pro-ject faced a number of challenges, several of which were specific
issues of serving a population with an Asian heritage. Most notably,
Asian families preferred to interact with the Youth Workers as an autho-
rity figure, not as a collaborator. Also, there was a tension between pub-
lic discussions of family affairs, and the stigma and loss of face associa-
ted. The authors will discuss how these challenges were addressed and
the types of trainings needed to build their capacity to do so as an
attempt to help other youth workers apply these lessons learned to their
own youth communities.
48 Restorative Justice Across the East and the West

Background
In the wake of the dot-com boom at the end of the 1990s, a local go-
vernment in Silicon Valley found themselves with enough money to
experiment on a new program they had heard about called Restorative
Justice. Funding was provided for a few selected neighborhoods to
create the Restorative Justice Project (RJP), a collaborative between
community-based organizations (CBO) and the Santa Clara County
probation department. RJP was successful, and later expanded to more
neighborhoods. One of the initial grants was awarded to an Asian
American CBO in Santa Clara County, serving predominately Asian
neighborhoods in East San Jose and Milpitas.

The Community
In East San Jose, there was a high concentration of young Asian Ameri-
cans. According to the US Census Bureau, in 2000, 26 percent of Santa
Clara County residents were Asian American. In fact, San Jose has one
of the highest proportions in the nation of Asian residents (29 percent)
(Barnes and Bennett, 2002). This concentration of Asian American
youth translated to a number of juvenile offenses. For example, Asian
gang violence plagued the neighborhoods: the local high school had
experienced such a stabbing in the summer of 1999. Also unique to the
area was C-Town, short for Cambodia Town because of the high con-
centration of Cambodian refugees. Milpitas, a neighboring city, is a
diverse community wherein Asians constituted 52 percent of the popu-
lation (Census 2000). The Filipino population was the largest Asian
group at 15 percent. Youth served by this project lived in suburban
communities which lacked resources and activities for young people.
Youth reported that they engaged in certain risky activities (e.g., mari-
juana use, and graffiti) because they were bored.
Understanding that each community was unique, Santa Clara Coun-
ty selected CBOs based on their knowledge and ability to serve the
selected communities. The Asian American agency (referred to as the
Agency) selected to implement RJP in these two locales was a substance
abuse agency. RJP was an intervention effort the Agency provided
alongside other prevention, intervention and treatment efforts for youth
Restorative Justice Principles in an Asian American Community 49

and adults. Although the program was designed to address the justice
issues that arose with each youth, the Agency offered an expertise in
substance use that played an important role in serving many of the RJP
youth. Even a large portion of the youth receiving non-substance cita-
tions reported experimentation with illicit substances.
In 1997, when this agency began implementing RJP, the Santa
Clara County Public Health Department reported high rates of alcohol,
tobacco, and other drug usage among Asian American and Pacific
Islander (AAPI) youth. They reported that 15 percent of females, and 19
percent of males among AAPI high school students in Santa Clara
County were regular smokers. Nearly half of AAPI high school students
and over a quarter of middle school students had tried smoking. More
than one in ten AAPI middle school boys, and 6 percent of AAPI middle
school girls in Santa Clara County were smokers. In spite of state laws
prohibiting the sale of tobacco to anyone under the age of 18, 17 percent
of AAPI students bought their cigarettes at a store, more than any other
racial/ethnic group (Santa Clara County Public Health Department,
1999). Over half of AAPI Santa Clara County high school students had
tried at least one alcoholic drink, and almost a quarter were current
alcohol users. Among AAPI middle school students, 28 percent of girls,
and 45 percent of boys had tried alcohol (Santa Clara County Public
Health Department, 1997). While AAPI youth in Santa Clara County are
generally less likely to use illegal drugs than other groups, 16 percent of
AAPI high school females and 28 percent of AAPI males had tried
smoking marijuana. These high rates of usage reflected the need for
intervention services in Santa Clara County.

Program Design
This implementation of RJP was founded on restorative justice princi-
ples of community protection, competency development and accoun-
tability. RJP worked to balance these three elements. Community pro-
tection occurred because these juveniles were carefully monitored.
Competency development took into account an asset-building
approach, with the goal of changing behaviors by improving functional
skills. Finally, accountability was an important element, ensuring that
50 Restorative Justice Across the East and the West

the youth and community were able to make amends. In this way, offen-
ders, victims, and communities worked together to restore justice (Van
Ness and Strong, 1997).
Consistent with the Restorative Justice framework, RJP adopted a
Positive Youth Development (PYD) approach to building competencies
among the youth. Using the 40 Developmental Assets defined by the
Search Institute (Search Institute), RJP focused on the existing strength
of each youth, while working toward increasing the number of assets
possessed by each youth. By engaging youth in positive activities, youth
had less time to engage in drugs and criminal activities. Meanwhile, by
building their confidence abilities, each youth was more likely to de-
velop productive habits and make a valuable contribution to the com-
munity, thereby reducing the likelihood that they would re-offend (Butts
et al., 2005).
Youth cited for nonviolent offenses were diverted into the project
with the promise that the citation would be erased from their record. The
condition was that they admitted their guilt and waived their right to a
trial. Common offenses included possession of marijuana, graffiti, and
petty theft. Youth and their parents would present themselves before a
Neighborhood Accountability Board (NAB), a rotating group of neigh-
borhood volunteers. These NAB meetings were central to the Project.
The NAB meetings enabled the youth, the community, and when-
ever possible the victims, to begin the restorative work necessary to
ensure justice while providing an opportunity for youth development
and community empowerment. The final outcome of the meetings was a
contract, developed with the input of the youth, their families, and NAB
members. In the process, youth were provided the opportunity to tell
their story, and were expected to listen and learn how their actions may
have affected their victim and the community. In many cases, such as
graffiti, the community was considered the victim. The NAB members
spent time learning about the youth’s strengths and interests so that the
team could develop an individualized contract. The contracts balanced
two objectives: ensuring that the youth pay reparation for their crime
while also developing the youth’s talents and assets to prevent future
crimes.
Restorative Justice Principles in an Asian American Community 51

Initially, contracts were managed by the Youth Intervention Worker,


who facilitated these NAB meetings and provided creative contract
requirements when appropriate. Many of the youth were referred to the
competency building group led by the Youth Intervention Specialist.
Eventually, with increasing caseloads, the implementation of the project
was restructured so that the roles of the Youth Intervention Workers and
Specialists were merged, wherein case management and facilitation of
the life-skills groups would be conducted by each. This enabled the staff
to divide work more equally, improving the manageability of the case-
loads. Contracts were expected to be completed in 4 months. After the
youths met their contract requirements, the youths met with the NAB
again to talk about their experiences and to close their cases.
RJP met with success, which was underscored when it became a
“Program” rather than a “Project,” and when it expanded to involve over
eight more localities within the county. Program evaluations conducted
by outside evaluators indicated successful outcomes. According to one
evaluation, 85 percent of RJP youth received no new arrests 6 months
after completion of the RJP intervention. Youth also completed a survey
at baseline and post-intervention to assess change in developmental
assets. Youth participants showed a statistically significant growth in
risk avoidance, and resiliency.
For instance, RJP youth reported an increase in the number of
caring adults in the youth’s lives with a 50 percent increase in the com-
munity, 32 percent increase at school, and 7 percent increase at home. In
addition, RJP youth increased their participation in school (25 percent),
home (15 percent), and the community (40 percent). 93 percent of NAB
members surveyed said that RJP had either a lot or some impact on the
youth’s ability to live respectfully in the community (Tulare County
Probation Department Tulare County Juvenile Justice Coordinating
Council, 2007). It was only a lack of funding following the dot-com bust
that ended the program.

Strengths of the Project


This implementation of restorative justice was successful for several
reasons, including the collaborative approach among agencies, the focus
52 Restorative Justice Across the East and the West

on cultural competency and youth development, and capacity building


trainings for youth workers. The collaborative approach enabled the
Probation department to work with local agencies with strong know-
ledge of the communities. Probation provided authority so that the youth
workers could focus on their role as collaborator with the youth, their
families and their communities. Moreover, these community agencies
had an established presence in the neighborhoods, providing other ser-
vices through other funding streams. In the case of youth served at this
Asian American agency, in addition to cultural competency, clients were
able to receive substance abuse specialty knowledge. These agency re-
sources were available to the youth, who sometimes were referred to
other services following their completion of their contract.
Collaboration occurred with other widely-known agencies, which
brought their own specialty knowledge and resources to the table. The
collaboration was successful because of regular meetings, and the sha-
ring of local community support and resources. The Agency also wor-
ked in close collaboration with schools. School administrators were
aware of the work of the RJP workers; when strong relationships were
formed, administrators and workers collaborated to hold each youth
fully accountable while building on their strengths. Most importantly,
schools provided attendance records for the youth workers, who would
then contact parents and youth as relevant. While some schools granted
office space, all provided classrooms for the after-school empowerment
classes. The collaboration was able to take advantage of all the strengths
and resources of the community.
When the funders awarded the grant to an Asian American agency
with youth expertise, they publicly acknowledged their prioritization of
cultural competency. In a city with 26.9 percent individuals of Asian
descent (Barnes and Bennett, 2002), and even more in the relevant
neighborhoods, they recognized the unique needs of the Asian Ameri-
can youth the importance of serving them well. What made this Agency
a leader in serving Asian American youth who engaged in risky be-
havior was its consistent effort in hiring staff who could provide
culturally and linguistically appropriate services. For instance, having
Youth Workers who spoke Asian languages was a necessity when
serving limited English proficient families. Youth Workers who could
Restorative Justice Principles in an Asian American Community 53

speak Vietnamese, Marin, Korean, and Tagalog helped to break down


the language barriers immediately, thereby enabling the youth and their
parents to improve the RJP process. With a better understanding of the
process, the families could fully participate in the NAB meetings and
interact with the youth worker regarding the progress of their child in
the program. If a youth worker assigned to a case did not speak the
language, he or she would call upon another staff member who did, or
made arrangements for an interpreter. Youth workers often advocated
for an appropriate person to provide this interpretation, since the youth
themselves or other relatives were sometimes expected by the NAB or
probation officer to translate for the parents, which was inappropriate to
place the youth in that position.
Culturally competent services extended beyond language, although
language is the most easily identifiable aspect. Youth workers who
shared similar cultural backgrounds with the families had personal
experiences with the unwritten rules of cultural interaction, and could
quickly and instinctively respond to these differences. Not only did the
language commonalities enable the families to feel more comfortable in
the process, but these other intangible expressions of culture also assis-
ted in the process.
The agency also acknowledged the need to be sensitive to the youth
subculture, in addition to their ethnic culture. Thus, staff for their pro-
grams were usually current college students or recent college graduates,
most of whom were of Asian descent and children of immigrants them-
selves. Many had even resided and grown up in the very neighborhoods
in which the youth clients lived, and were alumni of the schools where
they would now work. One RJP youth worker was a former youth client
of the agency; his leadership skills grew as he stayed involved with the
agency, enabling him to become a staff member. This served as a
strength, since many youth reported feeling comfortable working with
the staff whom they could relate to more easily. The youth workers
could be considered community health workers who possess a unique
understanding of the norms, attitudes, values, and strengths of commu-
nity members, since they are ethnically, linguistically, and experientially
indigenous to the community in which they work (Love et al., 1997).
These youth workers helped provide cultural linkages, overcome distrust,
54 Restorative Justice Across the East and the West

contributed to building the communication between the youth and their


probation officer. Through these connections, the youth worker increa-
sed the likelihood that the participants would successfully complete their
contract.
To further build the capacity of the staff, the agency provided regu-
lar clinical supervision sessions with a licensed clinician, along with
ongoing trainings and in-service workshops. Cultural competency trai-
nings enabled youth workers to become familiar with various ethnic
(primarily Asian) groups’ values other than their own. PYD trainings
stressed the importance of truly partnering with the youth. Youth wor-
kers learned about the continuum of youth development and were en-
couraged to assess where the organization stood on the continuum. With
respect to RJP, youth workers would ask the questions, “How involved
are the youth in shaping their own contracts? Are they merely outsiders
to the process determined by adult community members whom they
have no relationship with? Or did the community members on the NAB
truly engage the youth to build on their assets to create a meaningful
project to build restitution?” The youth workers also received trainings
to build their competencies in counseling and educating the youth and
their families. These trainings covered topics such as motivational inter-
viewing, group process and substance abuse groups, art therapy, harm
reduction, domestic violence, suicide prevention, gang prevention, men-
tal health, and sexual health.
Youth workers sought to practice the lessons they learned in trai-
nings. Throughout RJP, workers sought to empower the youth through
their involvement in the program. Examples of youth playing more
active roles includes leading a competency development session, facili-
tating check-in process, and taking a lead in coordinating group com-
munity service projects.
In addition, prior to working with youth, staff were required to
complete site visits to the collaborating and sister organizations. This
served several purposes:

(1) the youth workers became familiar with the different social services
they would refer their youth and families to,
Restorative Justice Principles in an Asian American Community 55

(2) the staff at these sites would become familiar with the new youth
workers and the Restorative Justice Project, and
(3) the youth workers also learned about the strengths and challenges
faced by these other model programs that served Asian and other
immigrant youth families.

RJP was a successful project, which was evident in its expansion to


eight localities. This success was due, in large part, to the collaborative
nature of the work, and the attention the funders gave to providing
culturally competent services. However, there remained challenges to
the program. Some of these challenges were common to all eight loca-
lities, while the challenges more specific to serving Asian American
clients were most apparent in the two localities served by the agency.

Challenges of the Project


General Challenges
The Project faced several challenges common to the general population.
These challenges were related to the role of the youth worker, and the
restrictions set on the contracts. Establishing a clear understanding of
the roles and responsibilities of the youth worker was an ongoing
balancing process between efficiency and restorative justice theory in
serving the local community. There was an ongoing dialogue between
the agency and the Probation Department as both constantly improved
their understanding of the others’ perspectives. The Probation Depart-
ment perceived the RJP Workers as their assistants, expecting them to
function in much the same way as the Probation Officers with smaller
caseloads. Consequently, caseloads which originally were meant to
consist of 15 to 20 youth were quickly pushed up to 30. The Probation
Department was in control of the flow of youth as well as the type and
number of cases referred. Moreover, the Probation Department often
expected the worker to take a punitive approach to the youth, while the
agency worked from a PYD frame. A frequent refrain among workers
from multiple locales was, “We’re not mini Probation Officers!” As a
56 Restorative Justice Across the East and the West

new program, there was work in clearly establishing the role of the
worker as distinct from that of Probation Officer.
A second challenge was that, while meant to produce individua-
lized contracts based on the strengths and interests of each youth, many
were often plagued by generic requirements. The time constraint of the
NAB meetings (i.e., an hour) only allowed the community volunteers a
shallow grasp of each youth before negotiating the contract. Minimum
requirements for certain citations were imposed. For example, graffiti
cases were automatically required a minimum number of hours of
graffiti clean-up with the same community program. There were other
common elements, such as referral to the empowerment class, and com-
munity service completed at the same community center. The Probation
Department was faced with many competing obligations. They imposed
these requirements with the intention of achieving fairness by standar-
dizing contract requirement. However, this standardization directly con-
tradicted with the PYD and RJP principles of tailoring each contract to
the unique needs and strengths of each youth.
Finally, work was severely limited by the amount of time allocated
for each youth to complete their contract. This time limit began with six
months, but was revised to take into account the time it took Probation
to process the paperwork for each youth. Youths were expected to com-
plete contracts in four months. Again, this ran counter to the purpose of
RJP and to the goal to understand and create individualized contracts
through a personal understanding of each youth. With mandatory mini-
mums and a very short time to work with each youth, the ability of RJP
workers to effectively intervene with the youth was seriously hampered.
For instance, with the limit of 3 to 4 months to encourage youth to fulfill
their contract by building on their strengths, at times it became difficult
or unrealistic for a contract to be fulfilled. Although youth workers
moved as quickly as possible to assist each client in meeting their re-
quirements, it often took up to a month to help each youth establish the
relationships with community organizations and programs necessary to
meet contract requirements. Additionally, using a Stages of Change
framework for behavior change, the youth were often only in the pre-
contemplation or contemplation stage, and were not always prepared to
change his or her behavior (MacMaster, 2004). If services could not be
Restorative Justice Principles in an Asian American Community 57

extended long enough for each youth to move beyond the contemplation
stage of change, the likelihood that they would re-offend was increased.
These limitations often constrained the work of the youth worker,
but also reflected the struggle to balance the realities of the Probation
Department with the philosophy of restorative justice. While the youth
workers were able to implement RJP principles successfully, they were
constantly working against these limitations.

Culturally Specific Challenges


In addition to the general challenges the Project faced, there were chal-
lenges in working with clients of Asian descent. These challenges were
related to the family’s relationship to authority and definitions of
community. Asian cultures are highly hierarchical, where individuals are
defined by where they stand in relation to one another. Rank matters in
Asian culture, and as such, there are highly defined rules for commu-
nication and interaction. The Asian families and youths treated the
Youth Worker with the utmost regard and respect: the Youth Worker
was a source of authority to them. This runs counter to PYD and RJP
principles which prescribed the youth worker role as collaborator with
the family. At the same time, acknowledging that many recent Asian
immigrants come from countries where police or law enforcers were
perceived as completely corrupt or ineffective, it became crucial for the
Youth Worker to establish trust with the Asian parents and stress that
the probation officer, youth worker, and NAB members were there to
help more so than punish the youth for their actions.
The relationship with authority was further exemplified through the
dynamics of NAB meetings. These meetings were meant to include the
opinion of the Asian families youth, providing them with opportunity to
dialogue and discuss with the community as to what they believed was
best for the youth. Asian families often did not understand this oppor-
tunity to voice their opinions, but instead, expressed gratitude and
agreed with the suggestions made by the NAB. Although other families
often agreed with whatever suggestions the NAB made, only Asian
families went so far as to express appreciation for whatever justice they
perceived as being meted out. In the cases where the families took ad-
58 Restorative Justice Across the East and the West

vantage of expressing their opinions, some expressed a sense that more


should be demanded of their children. They did not feel it important for
their child to say anything other than what was expected and appropriate:
an apology and an expressed desire to do whatever the NAB dictated.
Often, allowing the youth worker and NAB members to emphasize their
position of authority facilitated the RJP process with these Asian
families.
A second challenge to implementing RJP with the Asian population
was related to the definition of community. Many of the Asian families
did not perceive the NAB members as part of their community. RJP
defined community geographically, by zip code. Any adult who lived in
the neighborhood was given the opportunity to serve on the NAB. For
many of the Asian immigrants and refugees in the neighborhood,
community was not defined geographically, but ethnically. While there
were Mexican immigrants participating in the NAB, there was none of
Asian descent. Although Asian community members who were eligible
were encouraged to participate, many declined to participate. Beyond
the larger community, many families only considered their own family
as the community of importance. Possibly because of the traumatic ex-
periences they suffered in their refugee experiences, many parents
worked hard and kept to themselves. Although the program was de-
signed around community building, many of these families emerged
only long enough for their children to appear before the NAB, but did
not perceive the NAB nor the neighborhood as their community. This
posed an ongoing challenge for a program that promoted community
participation and development.
Although the families often did not identify with the NAB as their
community, this was often a positive for the family experience to the
contrary of RJP principles. In a culture with such strong mores about
shame and loss of face, it was difficult for many parents to come before
a group of strangers and discuss their children. Children are considered a
reflection of their parents, and their appearance before the NAB was a
public announcement of their failure as parents. . It was often challen-
ging to assess the degree to which parents could publicly engage in a
dialogue about their children, and to what degree that would improve or
harm family relationships. Had they encountered others from their own
Restorative Justice Principles in an Asian American Community 59

community, the challenges may have been greater. The shame played a
role in the parents’ inability to collaborate, and their adherence to power
dynamics where the youth worker was the authority figure. Consequen-
tly, there was in inherent tension between RJP and Asian cultures. Had
the project been able to successfully recruit more Asian members, it may
have created more initial tension and stress between the youth and
parent, consequently exacerbating any strains already present in their
parent-child relationships.

Conclusion
Cultural competency is an elusive skill. Identifying and cataloguing va-
lues and scripts for the Asian culture and comparing how those differ
from American culture is nearly impossible; many of these values and
scripts are followed subconsciously and operate almost invisibly. The
agency serving East San Jose and Milpitas was able to hire young youth
workers of Asian descent who could instinctively react to Asian families
appropriately. For example, these individuals knew to remove shoes
when entering the home, and could find the appropriate balance between
deferring to elders while still playing the role of authority. However,
there are several ways in which RJP principles and Asian cultural values
appear to contradict.
First, in implementing future RJP models with Asian clients, at-
tention should be paid to the power dynamics between youth workers
and families. Although the worker was prescribed as a collaborator for
this project, it was the role of authority figure that often enabled parents
to respond in a more productive manner. It was helpful prior to NAB
meetings for the youth workers to meet with and empower both the
youth and the parent(s) by fully explaining the process, and encouraging
them to think of meaningful ways for the youth to build restitution in a
manner that builds upon their strengths.
A second issue at hand is the concern of publicly airing what is a
private family matter. Efforts to understand the youth can come dan-
gerously close to criticizing parents in public. Attention needs to be paid
to the sensitive situation and the sensitive ego of the parents during these
NAB meetings. Educating NAB members about this would be crucial in
60 Restorative Justice Across the East and the West

order to build their ability to be culturally sensitive to the parents. In-


stilling the importance of empathy among the NAB members is key to
avoiding shameful questioning of parents. It was helpful to also recruit
NAB members who were parents of youth who were former RJP partici-
pants. This enabled them to speak from their own experience and to help
normalize the feelings of shame experienced by the parents of a youth
entering the program.
Finally, it would also be helpful to assess the 42 developmental
assets that is a part of Positive Youth Development through the lens of
the ethnic group to which it is being applied (Search Institute). For
instance, the issues of saving face and stigma mentioned earlier should
be taken into account when assessing the youth’s external assets of
“caring neighborhood.” The asset of “positive family communication”
should take into account that certain topics such as sex and substance
use are taboo topics in Asian (as in other ethnic) communities. The
difficulty of building the asset of “parent involvement in schooling”
could stem from the fact that the parents of Asian American youth often
worked multiple jobs to support their family in the US as well as abroad
in their home countries. In addition, with the high value Asians place on
education, the asset of “high expectations” wherein both parent(s) tea-
chers encourage the young person to do well, can also be seen as a risk
factor if high stress is placed upon youth to excel, and strengths are
overlooked, leading to the youth response of acting out, or engaging in
risky behaviors.
The Restorative Justice Project in Santa Clara County provided va-
luable opportunities for community building, family building, and youth
development. Through the collaboration of multiple CBOs, youth and
their families were able to quickly access multiple resources available.
Moreover, the NAB meetings allowed community members to be em-
powered in youth development efforts, while families were given
opportunities to enhance their relationships with one another. Because
youth were held accountable while the community focused on building
competencies, they were able to understand the consequences of their
actions. By engaging youth in positive activities, recidivism was de-
creased. Although RJP experienced a number of challenges, the project
itself remains a success.
Restorative Justice Principles in an Asian American Community 61

REFERENCES
Barnes, J.S. and Bennett, C. (2002), The Asian Population: 2000, US Census
Bureau: Washington, D.C.
Butts, J.; Mayer, S., and Ruth, G. (2005), Focusing Juvenile Justice on Positive
Youth Development, Chapin Hall Center for Children: Chicago, IL.
Love, M.B.; Gardner, K., and Legion, V. (1997), Community Health Workers:
Who They Are and What They Do, Health Education Behavior, Vol. 24,
No. 4, pp. 510-22.
MacMaster, S.A. (2004), Harm Reduction: A New Perspective on Substance
Abuse Services, Social Work, Vol. 49, No. 3.
Santa Clara County Public Health Department (1997), Health Status Report: A
Platform for Action for the Year 2000, Santa Clara County Public Health
Department: Santa Clara, CA.
———(1999), Santa Clara County’s Children Youth: Key Indicators of Well-
Being, Search Institute, 40 Developmental Assets for Adolescents, Santa
Clara County Public Health Department: Santa Clara, CA.
Tulare County Probation Department, Tulare County Juvenile Justice Coordina-
ting Council (2007), Comprehensive Multi-Agency Juvenile Justice Plan,
Tulare County Probation Department: Tulare, CA.
Van Ness, D. and Strong, K.H. (1997), Restoring Justice, Anderson: Cincinnati,
OH.
5
____________________________

Restorative Justice and Offenses


Against Women
KATHERINE VAN WORMER

In recent years, practitioners have found themselves being asked to


bring together victims or survivors of severe forms of violence such as
murder of one’s family member. Such cases, as Umbreit et al. (2003)
suggest, require longer case preparation of all participants with special
attention paid to their expectations and feelings about the encounter,
greater professional skills of facilitators, negotiation with correctional
officials, and clarification of boundary issues.
The failure of the criminal justice system in meeting the needs of
victims of crime and in providing an atmosphere in which the offender
is rewarded for expressing remorse are common themes in the literature
(cf Rozee and Koss, 2001; Van Wormer, 2004). With regard to intimate
partner violence, for example, as Frisch (2003) indicates, the law which
was framed to protect citizens from violence by strangers who are
unlikely to ever see each other again, does not easily lend itself to the
64 Restorative Justice Across the East and the West

demands of interpersonal situations. Victims of crime are often re-vic-


timized as they seek justice through the criminal justice system. Forced
public testimony of the victim at a trial, if it comes to that, may com-
promise her safety. Moreover, child protective services may start inves-
tigating her for her failure to protect the children.
In a similar vein, Rozee and Koss (2001: 306) criticize the handling
and outcomes of acquaintance rape at every level of the criminal justice
system from police officer’s treatment to the prosecutor’s reluctance to
take the case to court to courtroom antics. If there is a trial at all, the
defense attorney is geared to demolish the credibility of the victim who
is the chief witness for the prosecution. “Racial”-ethnic differences bet-
ween state officials and the victim compound the lack of consideration
and respect. Additionally, as Rozee and Koss further suggest, adver-
sarial justice is experienced as “White imposed;” women of color must
contend with tension between their needs for justice and felt obligations
to buffer “racism” in the criminal justice system. Black and Latina
women may avoid seeking help from the criminal justice system or
women’s shelters to protect the image held of minority groups in a racist
society (Presser and Gaarder, 2004). Women of color are well aware of
the brutal and prejudicial treatment inflicted upon their men folk by the
criminal justice system so they might not want to turn to that system for
justice.
In summary, the patriarchal, Anglo-American adversary/plea bar-
gaining system fails to meet the needs of victims in many instances, and
of offenders in many others. Even in cases where justice is instituted
successfully, for example, where a murderer is given an appropriately
lengthy sentence, there is often much business left unfinished. The cri-
minal justice system, in short, is criticized as being ineffective in dealing
with crime, the needs of the victim, and the rehabilitation of the offender.
Like many discussions in the field of restorative and criminal jus-
tice, researchers stress the importance of a generic rather than gendered
equality between the sexes, and the special needs of the girls and women
are not taken into account. When we treat female offenders generically,
we often confuse equality with sameness. Gender-blind treatment of
girls and women in the criminal justice system subjects them to disci-
pline designed for antisocial men, without making allowance either for
Restorative Justice and Offenses Against Women 65

the role of motherhood or for a history of personal victimization. Psy-


chological dependency on drug-using and often violent men is another
female-specific theme.
To help meet the special needs of female offenders, I (Van Wormer,
2001) introduced a strengths-restorative approach to work with this po-
pulation. The theoretical model joins a strengths-based feminist per-
spective with principles of restorative justice.
The finding of distinct gender differences in pathways to lawbrea-
king is a focus of contemporary studies on female offenders (Belknap
and Holsinger, 1997; Chesney-Lind, 1997). Drawing on the empirical
finding that there is a disproportionately high rate of multiple victimi-
zation for female compared to male offenders, Chesney-Lind describes
the pathway that often leads a girl, desperate to escape sexual and phy-
sical abuse at home to run away, seek solace in drugs and “bad com-
pany,” and survive on the streets through prostitution. Some end up in
prison, mostly as a result of incarceration secondary to drug involve-
ment. In their path to the streets and imprisonment, they have victimized
others as well—their family members, community, and sometimes stran-
gers—through theft and robbery.
One aspect of victim offender conferencing that closely relates to
women’s issues is the use of victim panels. Members of these panels
share their personal stories of victimization with an audience composed
offenders who have committed similar crimes. Often the speakers are
survivors of crimes like rape, robbery, and attempted murder. Members
of the panel are not the victims of the particular offenders in the audi-
ence.
Victim-offender panels are used as a means of getting male abu-
sers to feel the victims’ pain and to feel remorse for the harm they have
done. In hearing the stories of pain and suffering that the crimes of
violence engendered, offenders typically not only feel for the victims as
people who were hurt by the careless or cruel behavior of others, but
often they get in tune with their own past victimization. Getting in touch
with their own feelings may prepare them for the humanizing/reha-
bilitation process. In short, two themes—offender accountability and the
empowerment of crime victims—ideally come together in the victim/
offender initiatives. Just as offenders, in these encounters, see the human
66 Restorative Justice Across the East and the West

face of victims, so the survivors come to see the human face of offen-
ders.
Minnesota has infused gender-specific programming within its
juvenile and adult institutions, programming that is built on restorative
justice principles. The Minnesota Department of Corrections further-
more employs restorative justice planners to train people at the county
level for diversionary conferencing, emphasizing above all a spirit of
dialogue and healing. Burns (2001), a researcher at the Center for Resto-
rative Justice and Peacemaking, describes a process that is a combi-
nation of victim-offender conferencing, panels, and healing circles.
Meetings held in a circle format at the women’s prison at Shakopee
were conducted with five crime victims, members of the Parents of
Murdered Children support group, six inmates, two facilitators, a neutral
advocate, and an observer. Participants who did not know each other
before the meetings signed up for certain nights when they would tell
their personal stories. Before the conferencing, the victims had favored
harsh penalties for such female offenders, but afterwards they saw them
as persons who too had been victimized in their own way. A great deal
of empathy and remorse was expressed in these exchanges.

In Battering Situations
Restorative practices in the realm of domestic violence have always
started at the grass roots level; it is time argue Grauwiler and Mills
(2004) to expand our efforts to include the needs of women who avoid
the criminal justice system. Community-based interventions are required
that rely on community support of the survivor rather than do on cri-
minal prosecution of the victimizer.
A postmodern view of justice has developed which, according to
Presser and Gaarder (2004), has called into question the ideology of
absolute justice, and policies such as forcing the victim to testify in open
court against her partner or spouse who assaulted her. Research in the
1990s, as these writers further inform us, found that battering victims
who have a say in legal or less formal proceedings may feel more em-
powered to get help, if not to terminate the abusive relationship. Women
of color often see both the courts and social services as adversaries ra-
Restorative Justice and Offenses Against Women 67

ther than allies, so an emphasis on judicial intervention may turn them


away.
One approach to the prevention of domestic violence is the require-
ment that battering men receive treatment. The aim is to teach offenders
new ways of viewing relationships and manhood, and new ways of
handling stress and feelings of insecurity. Restorative justice here often
takes the form of teaching empathy by having a group of survivors of
domestic violence tell their stories, relating what it feels like to be
violently victimized by one’s spouse or partner. In hearing the stories of
pain and suffering that the crimes of violence have engendered, those
offenders who can be reached will not only feel for the survivors as
people who were hurt by the careless or cruel behavior of others, but
often will get in tune with their own past victimization. Getting in touch
with their own feelings may prepare them for the humanizing/rehabili-
tation process.
In short, two themes—offender accountability and the empower-
ment of crime victims—ideally come together in the victim/offender
initiatives. Just as offenders, in these encounters, see the human face of
victims, so the survivors come to see the human face of offenders.
An important research question that has not been adequately ex-
plored is this: For whom, for which type of batterers, would a restorative
justice approach be effective? More precise knowledge of batterer
typologies may ultimately be used to discriminate between offenders
who might reasonably be expected to benefit from a restorative ap-
proach and those who are unlikely to benefit, or who pose too great a
safety threat.
Although batterer typology systems currently have limited clinical
utility (Langhunrichsen-Rohling et al., 2000), we are able through psy-
chological testing to screen out those who show antisocial tendencies,
severe depression, or who have a history of violence directed toward
others outside the family, and other men for whom restorative processes
would be unsuitable.
The process of community conferencing as a way of effecting jus-
tice for victims of rape and battering is practiced in New Zealand with
favorable results (Braithwaite and Daly, 1998). Sentencing in such a
system is handled by community groups that include the victim and her
68 Restorative Justice Across the East and the West

family, as well as the offender and individuals from his support system.
Power imbalances are addressed in various ways, such as limiting the
right of the offender to speak on his own behalf, and including com-
munity members in a sort of surveillance team to monitor the offender’s
compliance. Braithwaite and Daly see the potential to use such methods
safely by including them in a “regulatory pyramid,” utilizing intervene-
tions of escalating intensity in refractory cases.
While more conventional interventions such as imprisonment may
still be used for offenders who do not respond, these researchers see
community involvement in decisionmaking, as well as in rituals invol-
ving expressions of remorse and ultimate community reintegration, as
potentially more beneficial. The survivor and other members of the com-
munity are given voice, and are able collectively to bring social pres-
sures to bear on the offender to change his behavior. In this way, the
community is both protecting the victim and offering the option of reha-
bilitation to the offender.
Other reports involving successful community conferencing in ca-
ses of severe family violence have come from traditional Canadian
Native community ceremonies. These are unlike traditional mediation
methods used with divorcing couples in that community involvement
changes the balance of power. Griffiths (1999), for example, presents
the case of a Canadian aboriginal sentencing circle which took up the
case of a man who, when drunk, beat his wife. Seated in a circle, the
victim and her family told of their distress, and a young man spoke of
the contributions the offender had made to the community. The judge
suspended sentencing until the offender entered alcoholism treatment
and fulfilled the expectations of the victim and of her support group.
The ceremony concluded with a prayer and a shared meal. After a
period of time, the woman who had been victimized voiced her satisfac-
tion with the process.
This case, as Griffiths explains, was clearly linked to the criminal
justice system. Others may be handled more quietly, by tribal members.
Griffiths concludes on a note of caution: victims must play a key role
throughout the process to ensure that their needs are met and that they
are not re-victimized. This is a process we can expect to be hearing
much more about in the future. The emphasis on restoration rather than
Restorative Justice and Offenses Against Women 69

retribution can be empowering to all parties involved (cf Hatch Cun-


ningham and Giffiths, 1999).
Feminist researcher Mary Koss (2000) advocates what she terms
communitarian justice, a victim-sensitive model derived from the com-
munity-based approaches of New Zealand’s Maori people. Such me-
thods are apt to be effective, notes Koss, because they draw on sanctions
that abusive men fear most: family stigma and broad social disapproval.
Such conferencing, as Koss further indicates, is recommended for young
offenders without extensive histories of violence.
The goal of such an approach is to help violence-prone men take
responsibility for their actions while at the same time developing em-
pathy for their victims. Like restorative justice, the aim is to build on
positives so as to facilitate the offender’s restoration to the community
rather than their further estrangement from it.
In ongoing relationships, an end to the violence is of course crucial.
Treatment coupled with close supervision of men who have engaged in
battering are important elements in curbing further family violence.
Sometimes restorative justice initiatives at the community level take the
form of community conferencing, as discussed in the previous section.
Participation by all parties is strictly voluntary and intensive preparation
precedes all such conferencing. Issues of power and control for the
victim must be addressed (Umbreit, 2000).
Hearing directly from the offender of his guilt and remorse while
receiving support from family members can help the victim heal while
reducing feelings of self-blame. In contrast, few traditional programs
address the psychological needs of victims in any meaningful way. Even
in situations of violent crime, community conferencing can help victims
by bringing the gravity of the violence that they have experienced out
into the open.
The message to all concerned is that any form of family violence is
unacceptable. Such conferencing can attend to the psychological as well
as the physical abuse that a survivor has experienced and counter her
sense of help-lessness by involving her as an active participant in the
process (Koss, 2000). Measures can be taken, moreover, to reduce the
survivor’s vulnerability such as in providing access to an individual
bank account or transportation, for example.
70 Restorative Justice Across the East and the West

Rashmi Goel (2005) believes that restorative justice options are ill-
suited to application among immigrant South Asian communities for
domestic violence cases. Her reasoning is that women from South Asian
culture might be placated by the familiar values of community, cooper-
ation, and forgiveness into seeking restorative justice solutions and ulti-
mately into staying in an abusive situation. Restorative justice is based
on the premise that participants are equal and can speak freely in a con-
sensus-based proceeding.
But in the South Asian (Indian) cultural tradition, such an assump-
tion cannot be made. Tradition portrays the husband as the sole source
of status and support; and Indian women are apt to feel responsible for
pain inflicted by the husband. The exact opposite argument is made by
Grauwiler and Mills (2004). Their recommendation is for what they call
Intimate Abuse Circles as a culturally sensitive alternative to the crimi-
nal justice system’s response to domestic violence. Such Circles are
especially helpful, they suggest, to immigrant, minority, and religious
families where it is more likely that the family will remain intact. This
model acknowledges that many people seek to end the violence but not
the relationship. Such restorative processes help partners as well who
would like to separate in a more amicable fashion than through standard
avenues.

In Situations of Rape
If criminal justice treatment of victims of crime in general leaves much
to be desired, treatment of rape victims is unconscionable. Three main
failings of the conventional system are discussed by Braithwaite and
Daly (1998). The first of these is the low rate of accountability in the
system due to a lack of reporting by victim-survivors, and the low
prosecution rate even when a charge is filed related to perceived lack of
credibility of victims of any crime involving sex. In addition, there is the
awareness by authorities of the low conviction rate in rape cases even if
the case does come to trial. Secondly, rapists who are sentenced to
prison are often guilty of repeated offenses that they got away with;
these habitual rapists are highly likely to re-offend upon release. Third,
women are re-victimized under cross-examination by defense attorneys
Restorative Justice and Offenses Against Women 71

in the courtroom, especially if they were drinking at the time of the


offense, in an unsafe place late at night, or if anything could be un-
covered from their past that would seem to shed light on their truth-
fulness.
Within this context, Rozee and Koss (2001) describe an American
project based on community conferencing principles designed to redress
the harm to the victim-survivor in rape cases. A major focus of this
project is on restoring justice to the community. Only then do offender-
focused goals of rehabilitation and reintegration come into play. The
project was introduced experimentally at the University of Arizona to
handle several categories of rape and sexual assault, those for which the
standard system of justice were the least able or willing to deal with—
sexual intercourse between a young woman 16-18 years old and a young
man slightly older; alcohol-related rape; date acquaintance rape; and
sexual offenses not involving penetration.
Law enforcement is involved initially in the reporting of the crime;
the County Attorney in cases appropriate for conferencing meets sepa-
rately with accuser and the accused to inform each party of the benefits
and risks of the community justice model and to gain consent to refer
the case. Next, the facilitator meets with the parties and family members
if desired to arrange for a conference and for the participation of support
systems from each side. A trained male advocate may attend on behalf
of either the victim or offender.
The conference is led by a facilitator, generally, a mental health
professional, who is trained in restorative justice strategies. The offender
begins by describing what he did; the victim-survivor speaks next about
her experiences while family and friends on both sides express the im-
pact of the offense on them. The perpetrator admits to the violation and
responds to what he has heard, often with an apology.
Options include a formal apology, payment of expenses including
counseling for the victim, substance abuse /or sex offender treatment for
the offender, and community service. A written record of the procee-
dings is provided which includes plans for follow-up accountability. The
matter is confidential but only as long as there is no re-offense, in which
case, the results of the conference can be used as evidence in any future
adjudication.
72 Restorative Justice Across the East and the West

Advantages of this format as indicated by Rozee and Koss (2001)


are: the strengthening of community trust; the instituting of trust; release
of legal authorities from pressure to take action under difficult cir-
cumstances; volunteer advocates gain a forum from which to offer anti-
rape messages; and a student has a chance to avoid a stigma that could
follow him for life. Community conferencing provides a platform for
describing a background of “racial”/economic oppression without fra-
ming such issues as excuses for the bad behavior. Above all, the woman
has been listened to, been given community support, and has received
justice.
As with all forms of restorative justice, truth-telling rather than
denial of the truth is encouraged in the process. Although this innovative
university program is too new for the long-term results to be clear, the
prospects are good in light of the proven effectiveness of similar pro-
gramming in New Zealand. Presumably, also the university has leverage
here in as much as the perpetrator is a student enrolled in studies and
wishing a clean record whether to remain at this institution or to transfer.
For all parties involved, this process should be empowering.
Canadian attorney, Ross Green (1998) in his book Justice in Abo-
riginal Communities conducted research on sentencing practices in cases
that are sometimes considered too serious for handling outside the
normal judicial route. And yet, we could equally argue that such situ-
ations are of too great a magnitude for ordinary adversarial methods,
especially when members of Indian tribes are involved. The clash
between the Anglo-Saxon way of handling criminal matters and abori-
ginal values is palpable. Photographs provided in Green’s book show
large numbers of people seated in a circle at one gathering concerning
parents who pleaded guilty to incest. Part I of the book focuses on the
conventional Canadian justice system and the clash between this formal
adversarial system and Aboriginal values. In contrast to modern Euro-
American forms of justice, Aboriginal justice is about restoring balance
to the community. Native peoples have difficulty in standard procee-
dings as they are apt to feel intimidated and to lack remorse if found
guilty. The victim plays a limited role in the formal process as well.
One of the most effective and striking uses of circle conferencing
occurred in the Hollow Water (Manitoba) community. In this commu-
Restorative Justice and Offenses Against Women 73

nity, a cycle of sexual abuse had been perpetuated for generations. Be-
cause the problem was community wide, if the victims had gone through
normal channels, virtually all the male members of the community
would have been removed. The process of circle sentencing was thus
chosen as the pragmatic and culturally sensitive approach to an almost
overwhelming situation. In the circle, offenders acknowledged the truth
of their behavior.
Healing Contracts and a concluding Cleansing Ceremony provided
a spiritual dimension to the proceedings. Strong community pressures
followed the sessions to keep the offenders in treatment. The process
was empowering for all the parties involved, and instead of being divi-
sive, pulled the community together for concerted action toward social
change.
Sometimes there is not satisfaction, however, following the hand-
ling of serious cases through circles, as Ross (1998) suggests. Com-
plaints have come from women that Aboriginal justice had been too
lenient in a number of cases and that the victims’ interests had not been
represented in the decisions that were reached.
It is for this reason that Rubin (2003), in her examination of wo-
men’s experiences in restorative processes in Nova Scotia, cautions
critics from being overly positive in assessing these alternative forms of
justice, in ignoring family and community roles in the reinforcement of
male control of women. Her recommendations include close attention to
women’s safety concerns and guarantees for their safety in domestic
violence situations.
74 Restorative Justice Across the East and the West

REFERENCES
Belknap, J. and Holsinger, K. (1997), Understanding Incarcerated Girls: The
Results of a Focus Group Study, Prison Journal, Vol. 77, pp. 381-405.
Braithwaite, J. and Daly, K. (1998), Masculinity, Violence and Communitarian
Control, in S. Miller (ed.), Crime Control and Women, Sage: Thousand
Oaks, CA.
Burns, H. (2001), Citizens, Victims, and Offenders: A Restoring Justice Project,
Center for Restorative Justice and Peacemaking: St. Paul, MN.
Chesney-Lind, M. (1997), The Female Offender: Girls Women and Crime,
Sage: Thousand Oaks, CA.
Frisch, L. (2003), The Justice Response to Woman Battering, in A. Roberts
(ed.), Critical Issues in Crime and Justice, Sage: Thousand Oaks, CA.
Goel, R. (2005, May), Sita’s Trousseau: Restorative Justice, Domestic Violence,
and South Asian Culture, Violence Against Women, Vol. 11, No. 5, pp.
639-65.
Grauwiler, P. and Mills, L. (2004), Moving Beyond the Criminal Justice Para-
digm: A Radical Restorative Justice Approach to Intimate Abuse, Journal
of Sociology Social Welfare, Vol. 31, No. 1, 49-62.
Green, Ross G. (1998), Justice in Aboriginal Communities: Sentencing Alterna-
tives, Purich: Saskatoon, Canada.
Griffiths, Curt T. (1999), The Victims of Crime and Restorative Justice: The
Canadian Experience, International Review of Victimology, Vol. 6, pp.
279-94.
Hatch Cunningham, Alison and Griffiths, Curt T. (1999), Canadian Criminal
Justice, Harcourt: Oxford, UK.
Koss, M. (2000), Blame, Shame, and Community: Justice Responses to Vio-
lence Against Women, American Psychologist, Vol. 55, No.11, pp. 1332-
43.
Langhunrichsen-Rohling, J.; Huss, M.T., and Ramsey, S. (2000), The Clinical
Utility of Batterer Typologies, Journal of Family Violence, Vol. 15, No.1,
pp. 37-53.
Presser, L. and Gaarder, E. (2004), Can Restorative Justice Reduce Battering?,
in B. Price and N. Sokoloff (eds.), The Criminal Justice System Women:
Offenders, Prisoners, Victims, Workers, McGraw Hill: New York.
Ross, R. (2000), Searching for the Roots of Conferencing, in G. Burford and J.
Hudson (eds.), Family Group Conferencing: New Directions in Commu-
nity-Centered Child Family Practice, Aldine de Gruyter: New York.
Restorative Justice and Offenses Against Women 75

Rozee, P. and Koss, M. (2001), Rape: A Century of Resistance, Psychology of


Women Quarterly, Vol. 25, pp. 295-311.
Rubin, P. (2003), Restorative Justice in Nova Scotia: Women’s Experience
Recommendations for Positive Policy Development and Implementation,
Report Recommendations, Ottawa, National Association of Women and
the Law, www.restorativejustice.org.
Umbreit, M. (2000), Family Group Conferencing: Implications for Crime Vic-
tims, US Department of Justice: Washington, D.C.
Umbreit, M.; Vos, B.; Coates, R., and Brown, K. (2003), Facing Violence: The
Path of Restorative Justice and Dialogue, Criminal Justice: Monsey, NY.
Van Wormer, K. (2001), Counseling Female Offenders Victims: A Strengths-
Restorative Approach, Springer: New York.
———(2004), Confronting Oppression, Restoring Justice: From Policy Ana-
lysis to Social Action, Council on Social Work Education: Alexandria, VA.
6
____________________________

Vital Voice for Restorative Justice:


The Community Members
MONA SCHATZ

Over the last 20 years, many communities in the United States have
initiated a restorative justice approach. Restorative justice is being used
in misdemeanor and criminal proceedings, as an alternative for youth in
the juvenile justice system, as well as civil and domestic disputes in-
cluding child welfare cases. Restorative justice has not replaced the tra-
ditional criminal justice system due to limited knowledge of outcomes.
Equally important, information about this approach is not widely known
among local citizenry unless the citizen has direct experience in the
restorative justice process.
Though restorative justice exists in most states, there is still a great
deal of experimentation underway while the models used vary. Com-
munities are testing out the methodology of restorative justice and exa-
mining the effectiveness of this orientation. Is restorative justice actually
able to achieve the overarching goals of the United States justice system?
Is order restored through the restorative justice process?
78 Restorative Justice Across the East and the West

Is restorative justice able to heal the damage arising from harm, both
harm(s) to a victim(s) and harms that are perpetrated upon the commu-
nity as a whole? Do communities regain their much needed community
safety when criminal or civil concerns are brought to resolution through
restorative justice? This chapter introduces some of the ideas and per-
ceptions of community members who participate in a restorative justice
conferencing process in a Colorado community. Some of the informa-
tion presented emerged from a case study done by the author and gra-
duate social work student (Jaeckel, 2005).

Brief Description of the Restorative Justice Process


Zehr (2005: 68) often identified as “the grandfather” of restorative jus-
tice, describes a philosophy and set of principles that comprise an al-
ternative framework for thinking about wrongdoing. “Restorative jus-
tice involves a reorientation of how we think about crime and justice.”
Restorative justice begins by embracing the needs and concerns of vic-
tims. This system of justice attempts to meet these needs in order to
bring direct response to the victim. Restorative justice uses community
panels or community groups as active participants in the experience, in
the hopes that this process responds to the needs of victims and moves a
step further through the community involvement to also initiate a pro-
cess of repairing the harm at this larger systems level. The focus on
“harm repair” emphasizes offender accountability and responsibility.
Restorative justice requires the offender to listen to the stories of
the victims and the members of the community who were harmed. This
approach also gives the offenders a chance to tell their stories. Once all
parties have been given a chance to share their stories and the offender
has a better understanding of the impact that he or she caused, a contract
for repairing those harms can be drawn up. This contract includes a
timeframe that the offender must complete the designated repairs with in.
There are many goals of this alternative to the present formalized
criminal justice system. The involvement of community in criminal
justice through restorative justice and the strengthening of a community
culture are the two aspects that will be analyzed in this chapter.
Vital Voice for Restorative Justice: The Community Members 79

Presently, restorative justice philosophies can be found in several


different applications. Kurki (1999) presents three options of restorative
justice. Family group conferencing (Burford and Hudson, 2000) is one
of the most applicable features of restorative justice. This is the most
commonly used restorative justice strategy as an alternative to prosecu-
tion. Family group conferencing includes the victim, offender and their
families as well as representatives of the community. A trained facili-
tator moderates the conference. This model promotes family solution-
building, rather than institutionally prescribed remediation(s).
Additionally, this model allows the wide span of issues to surface,
giving all that were impacted a voice, identifying family strengths and
potential family-based resources that can aid in the resolution of the
problem(s). Conference attendees decide upon an appropriate final
agreement with the needs and wishes of the victim taking priority and
the process the responsibility of the family. As in any restorative justice
alternative approach, if an agreement cannot be reached through the
family conferencing process, the matter is returned to the state’s attor-
ney’s office or referring agency.
Victim-offender mediation is another type of restorative justice.
Victim-offender mediation is used as a diversion to formal prosecution
or as a condition of probation after the court has accepted an admission
of guilt. This alternative gives victims a voice in the justice process and
holds offenders directly accountable for their actions. The goal of
victim-offender mediation is to give victims the opportunity to directly
inform offenders of the impact of their criminal behavior, offender
accountability and recovery of the victims’ losses (Kurki, 1999).
Community reparative boards (Kurki, 1999) or “sentencing circles”
are a third useful model of restorative justice for responding to offenses.
This model consists of community members who receive training to
learn the “how and why” of reparative board meetings. Reparative
boards, composed of several members, have a pre-agreed list of re-
sponses for different crimes. The reparative board holds a hearing, lis-
tening to the information presented, and in conclusion, the board deter-
mines the appropriate response. This type of restorative justice is most
applicable in victimless crimes. After a dialogue between all parties im-
pacted in an offense has taken place, a contract is written. The defining
80 Restorative Justice Across the East and the West

difference in this strategy is that the community reparative board moni-


tors the progress of the offender’s compliance with the sanctions. In
other approaches the monitoring function may be managed in a different
unit than the conference facilitation system.
These restorative justice strategies are becoming more extensively
utilized in urban and rural areas in the United States as well as other
countries. In the years ahead, more will be learned about how these mo-
dels variably restore justice. A key area for understanding the value of
these models is to examine how each model prepares and uses the com-
munity.

Community as Central to Restorative Justice


Communities are the key concept behind restorative justice. Commu-
nities exist when groups of people form a social unit based on common
location, related interests, shared identification, prescribed civic culture,
and common activities (Ehrlich et al., 2001). Building partnerships with-
in any localized community serves as “glue” for that community (Evans,
1997; Ehrlich et al., 2001). Restorative justice programs may serve as a
specialized partnership process that contributes to and sustains commu-
nity structures.
Laws including the laws that address wrongful, deviant social be-
haviors are necessary to sustain community order and the social order
that offers safety to its members. Historically, a community was indi-
rectly understood as a “victim” of crime and of deviant behavior, but
today’s restorative justice movement brings the community-as-victim
into the hearing and resolution phase of the process. Clearly, when
community members join the community restorative justice conference,
they are identifying themselves as members of the same community that
the offender has harmed. Involving representatives of the community is
a central premise of restorative justice. It is the absence of this central
tenant that some believe has contributed to the poor outcomes of today’s
highly structured, formal justice system. Restorative justice brings vic-
tims and offenders into a process similar to reconciliation and mediation,
using approaches that identify guiding interest’s gains. For example, in a
shoplifting offence, the business owner is invited to a conferencing mee-
Vital Voice for Restorative Justice: The Community Members 81

ting with the perpetrator of the offence, the arresting officer(s), the
county attorney, and friends/or family members who may provide
support for the victims and/or the offenders. In the conferencing meeting,
the trained facilitator initiates a process of fact finding and reflections
about the illegal experience that occurred. How the criminal action af-
fected all parties is examined. Listening to the stories of all parties helps
identify both direct and indirect impacts of this wrongful action.
Through the restorative justice process, the harms are identified,
repairs to those harms are explored, and a contract that provides clear
remediation to the victim and community is agreed upon and written
into a formal agreement. Including the community voice by requiring
community members to be “one of the regular members” in community
justice restorative conferencing promotes and strengthens communities.
The community component of a community justice restorative group
conference offers a unique perspective, a perspective that offers the
offender a deeper sense of the commonalities that exist in communities.
An equally unique goal of restorative justice and group conference pro-
cess is to let the offender know that the community members are there to
provide support for the offender and to show that the community cares
about the actions of all the members of their community.

A Look at One Community


To better examine the restorative justice community group conferencing
process for community members, a single case was identified and used
as a focus for studying the value and importance of the community
members. Among the questions that surfaced in planning this study,
were the following: Did community members believe that they were
important to the process? Did these members believe that they contri-
buted to a process of repairing the harm caused by the criminal event?
Did these participants believe that through this process they contributed
to strengthening the community and restoring safety to the community?
82 Restorative Justice Across the East and the West

Application of Restorative Justice: The Longmont Community


Justice Partnership

The Longmont Community Justice Partnership (LCJP), a Colorado re-


storative justice program, has been conducting community restorative
justice group conferencing since 1996. Longmont is nestled among six
or seven other urban communities that make up a sprawl tied to Denver,
a large metropolitan city. Once an agricultural community, the commu-
nity has almost doubled in population in the last 20 years and is a suburb
of the Denver metropolis. Over 75,000 people make up this community,
with some varied ethnic groups, e.g. Hispanic, African American, and
Anglo.
The community is both Christian and Catholic, with a few churches
representing other faiths. County government is well-organized and in-
cludes city police and fire services. One hospital provides secondary
medical services. There is a significant population in this community
with historical ties to the area. Thus, some community members hold
great pride for the town and the values the town holds. Schools serving
kindergarten to twelfth grade are challenged to serve the burgeoning
community needs. Crime, both felony and misdemeanor offences, has
risen dramatically
The LCJP facilitates a restorative justice process to address the
complex problems of crime in this fast-growing suburban community.
The founding principles of the LCJP (Siedler and Title, 1996) include
viewing the nature of crime as a harm committed against human rela-
tionships and community safety and secondarily against law or the state.
They seek to hold offenders accountable for their actions. An indepen-
dent evaluation of LCJP (Bernstein, 1998) noted that of the 250 offen-
ders who have come through LCJP in the program’s first two years,
there was a 90 percent completion rate for agreements. Bernstein also
found that among those who completed their agreements, 92 percent had
no further contact with police in the following year. This demonstrates
an extremely high victim success/satisfaction rate.
Vital Voice for Restorative Justice: The Community Members 83

The Specific Situation


One of the areas that the LCJP addresses is the legal infractions of
young people who attend schools in the local School District, a sub-
governmental unit of the community. This case situation described in
the remainder of this chapter arose because of the wrongful acts of two
junior high school teens. The case involved a junior high school setting,
youths aged 13 to 16. The specific situation involved two 16-year old,
female youth offenders. They were charged with a felony offence be-
cause they set off the school’s fire alarm and sprinkler system. The
sprinklers flooded the rooms and hallways causing significant material,
physical, and emotional damage to the school. During the alarm, faculty
and students were pushed into chaos; most had never experienced sprin-
kler’s pouring water all over everything. Clean up of the school took
several days and a large effort from staff and volunteers to remove the
water from the building to restore the school to “working order.”
When the police responded to the alarm and arrived at the junior
high school, the two female offenders were pointed out to the police
rather quickly. The two young women were apprehended immediately
and taken to police headquarters. The girls confessed to setting off the
alarms and were charged as juveniles. The police and the School Super-
intendent agreed to remediate this criminal offence through the restora-
tive justice process, referring this case to LCJP.

The Restorative Justice Group Conference


Three school officials attended the restorative justice group conference.
These three were: the school administrator, the nurse (who had suffered
an asthma attack during clean up), and the special education director.
These three represented the “victims” of this illegal act. The two teenage
young women attended this conference process with their parents. Three
community members were selected from the pool of trained community
members. The restorative justice conference facilitators were both trai-
ned and experienced volunteers. Both facilitators (one male and one
female) have been involved in facilitating LCJP community restorative
justice conferences for over three years.
84 Restorative Justice Across the East and the West

Community Members Reflect on Their Restorative Justice Involvement


Three community members were involved in the community justice
restorative conference. After the conference, they were invited to share
their experience and perspective with LCJP staff as a way to gain more
depth of understanding about their unique role in the conferencing
process. Some of their perspective and views are contained in the fol-
lowing summary.
Each community member gives a unique perspective. Rupert is a
local attorney who does not engage in criminal law in his day to day law
practice. Rupert, in his mid-50s, has been involved with LCJP for about
six months. Prior to this conference process, he has attended three
community restorative justice group conferences serving as a commu-
nity member. Maggie is in her mid-40s. She has lived and worked in the
community for several years. Maggie’s previous experience with re-
storative justice involved being in the role of a parent when her son was
an offender at an earlier period of time. Leila, the third community
member, is in her mid-50s. She is a small business owner in the com-
munity. She had had no prior experience with the restorative justice
process prior to this group conference experience. At the outset of this
interview, Leila says, “I didn’t actually know the techniques that would
be involved or the exact process, but I knew it was a way to minimize
the black and white judgmental thinking about criminal behavior or …
you know, what do you call it? and instead look at more the gray area
and allow community members and different people to be involved and
explore new ways to dissolve problems.” These three community mem-
bers create a variety of ideas and thoughts to learn about the community
conscience.
Rupert described how this role as a community member was,
ideally, a role coming from being a “human being” while continuing to
maintain his own personal perspective. He believes that in this group
conference he represents the “average citizen.” He says that in this
particular conference session, he attempted to convey this perspective
and respond to the group discussion from this position. He commented
that the process provided each participant with the opportunity to speak
without interruption or disturbance from other people. Rupert is em-
phatic when he states, “That is an important aspect, allowing people
Vital Voice for Restorative Justice: The Community Members 85

who may not have been intimately involved in the specifics to be able to
speak what is in their hearts and on their minds.”
When he was asked if the restorative justice conferencing process
was adequate, Rupert’s responded, “I thought it went well beyond ade-
quate. I thought it was excellent, actually a very moving experience for a
participant and community member … You feel changed as a person
having gone through that, and I felt that the offenders were dealt with
great respect by the facilitators and equally so the parents and all the
other people involved. There is a real sense; you come away with a
sense of a process that respected the dignity of everyone there.” The
emotion in his voice was evident. He felt deeply about this aspect of
restorative justice.
Since previously Rupert had been involved in three other com-
munity group conferences he had experienced outcomes that were not as
positive as in this current group conference situation. Rupert was able to
express what he perceived as potential limitations in a restorative justice
approach. He said, “One instance was where there were two offenders
and one did not want to participate and did not accept responsibility for
what he had done. In that case the conference ended without a contract,
without an agreement, and there was a sense of disappointment that we
all felt but that was the right outcome. “He goes on to clarify that “In the
end, this group conference was a positive experience, helping the youth
to recognize the importance of community involvement along with the
prerequisites of attending a restorative justice conference. These prere-
quisites include: full acceptance of responsibility in both an emotional
and verbal sense by all those involved in the conference, particularly the
offender(s).”
Rupert felt that this family group conference strengthened his sense
of community as well as for others in the experience. He remarked,
“There was a sense of community among the members who were seated
there, coming from different places; parents, teachers, victims, offenders,
community members and facilitators. We were all coming from different
perspectives and we were there spending time together because of the
common goal which was to participate in this community endeavor.
That’s a way that community cohesiveness is built and I felt it power-
fully.”
86 Restorative Justice Across the East and the West

Rupert’s indicated that the conference had achieved a level of com-


munity. He clarified, “The community is not even considered in other
forms of reaching justice. There is a sense in the criminal justice system
of a procedure to follow laws, to examine facts, really not, very rarely,
that community interest, which may differ in important ways, forms a
sense of crime punishment. It does not get a place at the table in other
formal systems and in this one it does and that’s important.”
Since Maggie had only been involved in one other conference, in a
very different position (as a parent of a son who had violated the law),
she offered a unique view of serving in the “community” seat. Maggie
also held a dual role in this community justice conference. She was a
teacher at the school where this action took place and was present during
the event. Now, she was representing the community as well. She begins
by saying, “At first, I felt like I was there representing a ‘punisher role.’
That was how I felt going into it. But later, I felt like I also had had an
opportunity to talk to the girls about my role as a teacher.”
She reflected that even in the first moments of the community
restorative justice process she experienced a change in her stance. She
said, “I think it was pretty clear up front that when the facilitator ex-
plained the process to all of us that everybody’s input would be valued
including the offenders and their families; there were not necessarily
going to be any bad ideas. They were just ideas and we were going to
take everybody’s ideas and listen, learn, clarify, and eventually come up
with a final contract.”
Maggie identified the value of the process for the youth involved.
She said, “The kids [offenders] have the opportunity to listen to how
they made other people feel to address the damage that they had done.
We were all heard; I think every individual was heard. The families had
a chance to talk to their kids about how they felt, that what they [the
offenders] had done reflected upon them.” She goes on to say, “Any
time a person sits in a conference like that, in regard to what they have
done to negatively impact others, it is going to be threatening, but it is
less threatening than going to court. It is a situation that is made as non-
threatening as possible.”
Maggie went on to explain that the offenders had an opportunity to
tell the participants what they had done, what they felt when they pulled
Vital Voice for Restorative Justice: The Community Members 87

the alarm, and afterwards what happened. “I remember one of them [the
young women in the room] telling how scared she was when the police
came and she had to call her home. Each of the girls had an opportunity
to open up and share feelings. It was a safe place to do that. Every one
of us had an opportunity to talk about how we felt. That’s part of the
healing process, and that was important to all of us.”
When asked about the adequacy of the group conference, Maggie
felt that the restorative justice group conference process was more than
adequate. She says, “It was excellent. I think that this is a very valuable
program tool. It is an experience that a lot of young people do not have
the opportunity to go through. In my role as a parent, in the conference
that I was involved in prior to this one, not one of those kids offended
again, it was a very … tense, moving, an impacting experience for those
kids involved in that.” Because Maggie shares the “school community”
with the young women in this restorative justice conference, she was
able to reflect on how these young women changed over the next several
months because of this experience. She described the young women as
being more receptive to interacting with other students and adults. One
of the girls even changed the way that she dressed and the make-up that
she wore. Maggie says, “Her whole persona softened.”
Maggie described the restorative justice process as an opportunity
to obtain “closure to an event that impacted the school community.” Her
reflections are in this statement. “There was an opportunity for the girls
to repair the harm and make retribution in a lot of different ways and
they have not done anything like this since.” Building on that thought,
she stated, “I think it can be a life changing experience.”
Maggie is “glad, as a member of the community, that there is a
program like this helping kids to not only see the harm but to repair it
and to feel like they’re being heard; that the kids are not just “ bad kids.”
This is one of those programs that tries to make sure that kids walk away
with their self-esteem intact, and that’s really important. I don’t think
that the court system is concerned with that.” She ends the discussion
saying, “I think the [restorative justice conference] is a really important
place for us as a community to put our resources rather than just the
court system. I really think or wish that all first time offenders would
have the opportunity rather than just going through the court system.”
88 Restorative Justice Across the East and the West

Leila understood her role was “to witness the process and reflect
back to the girls [offenders] my feelings as if I was representing the
community.” When asked if the community members were presented as
important to the group conference process, she replies, “yes, yes, (pause)
that’s the strength of how I thought it would work, that everyone would
come in being equal in capacity, sharing exactly what their emotions
were. I felt like I was an equal player.” She related how the facilitation
process even in the early moments of introductions served to provide
information and bring about healing.
In contrast to the other two community members, Leila left the con-
ference feeling frustrated because she saw a piece of the puzzle that
others gave little attention to. Leila says, “I thought that the emphasis
was put in the wrong place in a lot of ways. I felt like the girls were
really the victims of a much larger problem endemic in the school
systems. Maybe the perpetrator was the hierarchical system, the school
that used the girls’ “boredom in the classroom” as the reason that they
ended up getting into trouble. Why were they bored? The school offi-
cials also said the girls were kind of pushed by their classmates. So, I
question who the real offender(s) was in this situation.”
Leila viewed her role as a community member as important to the
process. She says, “To have someone there as a microcosm of the
macrocosm, saying, ‘I as a community member feel this way.’ Then you
represent to the girls, ‘think about the whole community, how this has
effects beyond your parents, beyond your family, beyond your school
and into the whole community.’ So I think it’s real important to be
there.”
When asked how she felt regarding the facilitation that brings in the
communities concerns and interests, Leila saw the value of the remedia-
tion process. She said, “I was impressed by how the remedy seemed so
far reaching but it went right into it at a large level. It was not perfect,
but I can see, despite the endemic problems in the school, it was still
apparent to the girls what was happening. I think they were taken along
into something that was cosmic to the process.”
Another insight that emerged for Leila showed her connecting with
the girls at their own level. She says, “I bet those girls had not gotten
that much attention in a long time. If that in itself creates healing and a
Vital Voice for Restorative Justice: The Community Members 89

step forward then the community and the families are really quite for-
tunate. In some way, it was kind of good that they did that, because in
their early age they did something that helped them understand that their
‘right actions’ can get the right kind of attention rather than the wrong
kind of attention. She continues, “if it was adequate to fixing the pro-
blems, yes, the conferencing is invaluable. If it met the challenge, yes. I
think that by the amount of attention and caring that these girls got it
was adequate. I think that any other way it would have been handled
they would have never really understood the effects of their actions, so it
was adequate in showing them that.”

Looking for the Community through the Narratives of


Community Members
When asked if these community members felt recognized in the restora-
tive justice conference, all responded positively although Leila is more
concerned about issues related to the actual circumstances of the case.
These community members indicate that the process recognized each of
them. In addition, they appear to have understood their “community
role.” The role of community member encompassed, in this case, the
community at large as well as the community within the school. This
restorative justice conference helped identify the value in multiple com-
munities and their equal importance in the restorative justice process.
All of the community members agreed that the input or feedback
from each member in the group conference circle was accepted. They
believe that differences in perspectives were treated fairly. These three
community members all agreed that community input was of value.
Each respondent agreed that the process was quite adequate. All agreed
that this process helped, in some ways, to strengthen their sense of
community.
Each of these community members agreed that the restorative jus-
tice process achieved justice for the community. Leila agreed that the
process was very much, “real and justice oriented.” Rupert described
past conferences where various participants had exclaimed that they had
varying ideas of what justice was, prior to attending the conference, and
that this process had opened their minds to alternative forms of achie-
90 Restorative Justice Across the East and the West

ving justice. While they did not all share the same perspectives, each
respondent did express that they achieved personal growth and satis-
faction from being a part of the restorative justice process.
The original question that spurred the process of interviewing com-
munity members focused on how restorative justice helps in repairing
harms to a community, strengthening the culture of the community and
bringing justice to the offenses committed. The narratives provided by
these community members appear to support the concepts of “repairing
harms,” “strengthening the culture of the community,” and “providing
justice” for offenses committed. These narratives support the ideas and
theories of proponents such as Jonestone (2002) and Kurki (1999). The
respondents all felt that their roles were important to the process, even if
they themselves did not believe their personality or personal beliefs and
perspectives coincided with the others present in the conference. Each
believed the process to repair the harms to the community and felt that
the offenders and the other participants had a chance to grow from this
experience. There were some differing thoughts on whether all of the
underlying harms were repaired, but they believed that the specific
offense for which we were brought together and received restitution.
The varying perspectives of each community member are beneficial
to this process. Though the interviews with these members could pro-
vide only a glimpse into the perspectives and views of these people,
their ideas are valuable. Each of these community members brings a
different perspective to the conference, to their roles, and to the com-
munity at large. This is representative of the make up of a community—
not all people believe the same things, are impacted the same ways, and
care about the same issues or have the same goals. This is the beauty of
a restorative justice conference. Within the conference are very different
people who are there to achieve the same goal. Each community mem-
ber has a completely different make up than the person across the circle
from him or her. This is consistent with real life. This is inherent in the
assumptions that underlie restorative justice.
Vital Voice for Restorative Justice: The Community Members 91

REFERENCES
Bernstein, D. (1998), Longmont Restorative Justice Project Report, Longmont
Restorative Justice Project: Longmont, CO.
Burford, G. and Hudson, J. (2000), Family Group Conferencing: New Direc-
tions in Community-Centered Child and Family Practice, Aldine de Gruy-
ter: Hawthorne, NY.
Erlich, J.; Rothman, J., and Tropman, J. (2001), Strategies of Community Inter-
vention, Peacock: Itasca, IL.
Evans, D. (1997), Using Partnerships to Build Communities, Penman: Cleve-
land, TN.
Jaeckel, M. (2005), Finding the “Community” in Restorative Justice: A Case
Study, thesis, Colorado State University, School of Social Work, Fort
Collins, CO.
Johnstone, G. (2002), Restorative Justice: Ideas, and Values, Willan: Devon,
UK.
Kurki, L. (1999), Incorporating Restorative Justice and Community Justice Into
American Sentencing and Corrections, Hillman: New York.
Siedler, M. and Title, B. (1996), Longmont Community Justice Partnership:
Building a Better Community One Circle at a Time, Teaching Peace:
Longmont, CO.
Zehr, H. (2005), Changing Lenses: A New Focus for Crime and Justice, Herald:
Scottdale, PA.
7
____________________________

COMMUNITY REPARATIONS
KATHERINE VAN WORMER

This chapter provides an overview of justice at the macro level, when


the rights of whole tribes or nations have been violated, often by con-
quest or by previous regimes. Reparations are examined first at the indi-
vidual, then at the societal level, with special emphasis on contemporary
issues on the Asian continent.
Probably the most powerful of the restorative justice processes falls
under the category of community conferencing. The power comes from
the emotions aroused, the likelihood of catharsis through the healing
ritual, and the involvement of the whole community. Community repa-
ration takes place at both the individual and societal levels.

At the Individual Level


Often referred to as the “Vermont model” of reparative probation, com-
munity reparation or reparative probation, this form of restorative con-
ferencing can be implemented more quickly within existing structures
94 Restorative Justice Across the East and the West

and processes of the criminal justice system. Such is the case in Ver-
mont. Vermont’s radical restructuring of its corrections philosophy and
practices stems from influences of the communitarian movement and to
personalist philosophy generally (Hudson and Galaway, 1990; Thor-
valdson, 1990).
In 1991, Vermont decided to overhaul its system, setting up re-
parative boards statewide to focus on repairing the damage to the victim
and community. Composed of volunteers, the reparative group is char-
ged with ensuring that low-risk nonviolent offenders are made aware of
the impact of their behavior on members of the community. Vermont, in
fact, is the first state to implement such conferencing on a statewide
basis and the first to institutionalize the restorative justice philosophy.
The goal is to have all offenders pay back their victims even if they
are in prison (Van Wormer, 2004). Treatment is provided for the victim
and to meet the offender’s needs as well. As with all restorative justice
programs, the goal is to reduce the harm the offender has done to the
victims and community and to reintegrate the offender into the com-
munity. Preliminary studies from Vermont show that more than 80
percent of the 4,000 plus offenders who entered the mediation process
have completed it successfully, and that they are less likely to reoffend
than those who enter probation (Bazemore and Umbreit, 1998).
This model involves a “reparative programs” track designed for
offenders who commit non-violent offenses and who are considered at
low risk for reoffense. This track mandates that the offender make
reparations to both the victim(s) and to the community. A reparative
probation program such as Vermont’s directly engages the community
in sentencing and monitoring offenders, and depends heavily upon
small-scale community-based committees to deal with minor crimes
(Sinkinson and Broderick, 1998). Reparative agreements are made bet-
ween perpetrators and these community representatives, while citizen
volunteers furnish social support in order to facilitate victim and com-
munity reparation.
This model involves members of the community in meting out
justice. Unlike other forms of restorative justice, the process is more
formal with the “chairperson” guiding participants through a questioning
process. The victim’s role has been minimal in the past although this
Community Reparations 95

may be strengthened in the future. To gain a sense of how the process


works, read the following description from the US Department bulletin
written by Bazemore and Umbreit (2001).

An Example of a Community Reparative Board Session


The reparative board convened to consider the case of a 17-year-old
who had been caught driving with an open can of beer in his father’s
pickup truck. The youth had been sentenced by a judge to reparative
probation, and it was the board’s responsibility to decide what form the
probation should take. For about 30 minutes, the citizen members of the
board asked the youth several simple, straightforward questions. The
board members then went to another room to deliberate on an appro-
priate sanction for the youth. The youth awaited the board’s decision
nervously, because he did not know whether to expect something tou-
gher or much easier than regular probation.
When the board returned, the chairperson explained the four con-
ditions of the offender’s probation contract: (1) begin work to pay off
his traffic tickets, (2) complete a State Police defensive driving course,
(3) undergo an alcohol assessment, and (4) write a three-page paper on
how alcohol had negatively affected his life. The youth signed the con-
tract, and the chairperson then adjourned the meeting.
Similar to Vermont’s community process in its focus on truth-
telling and reconciliation of parties is some of the programming found in
Hawaii. Social workers in Hawaii have been quietly incorporating Na-
tive Hawaiian culturally based tradition into their human service inter-
ventions. The impetus for introducing the culturally-specific program-
ming came in the 1970s when it was noted that Native children were not
responding to the standard forms of psychotherapy provided.
Hurdle (2002) chronicles how social workers in collaboration with
Hawaiian elders worked to revitalize the use of ho’oponopono, an
ancient Hawaiian conflict resolution process. This model is embedded in
the traditional Hawaiian value of extended family, respect of elders,
need for harmonious relationships, and the restoration of good will or
aloha. The process is ritualistic and follows a definite protocol. With the
leader in tight control of communication, the opening prayer leads in to
96 Restorative Justice Across the East and the West

an open discussion of the problem at hand. The resolution phase begins


with a confession of wrongdoing and the seeking of forgiveness.
Uniquely, as Hurdle relates, all parties to the conflict ask forgive-
ness of each other; this equalizes the status of participants. This process
effectively promotes spiritual healing and can be used in many contexts.
In drawing on guidance of the Kupanas (or wise elders) a reliance on the
family as a natural resource in reliving social problems, social workers
are tapping in to the community’s natural resources, a cardinal principle
of the strengths perspective (Heffernan et al., 2002).

Societal Level Justice


Related to peacemaking on the small scale is conferencing at the societal
level to right mass wrongs. Such wrongs generally consist of mistreat-
ment and abuse of whole segments of the population based on differ-
ences in ethnicity, race, or creed. In contrast to the process we have
explored thus far, this one often takes place years after the maltreatment:
The victims may even be later generations, the descendants of the ori-
ginal injured parties may be the actual complainants. The complaint is
often filed in court through an attorney. The philosophy of restorative
justice is found in the aim of reparation or restoring what is due to vic-
tims, also in the grassroots movement out of which the impetus for jus-
tice is derived.
When reparations were made in 1988 by the US Congress to Japa-
nese Americans for wrongs inflicted upon them after war was declared
on Japan, (including confiscation of their property and confinement in
concentration camps) a precedent was set for other people to seek
compensatory measures. Among them are the Native Americans for
treaties broken and brutal assimilation practices. In Australia, aboriginal
peoples are currently organizing to receive reparations for their “stolen
childhoods.” The reference is to the forced removal of mixed race chil-
dren from aboriginal mothers into orphanages or white homes. In the US,
the African American movement for reparations incurred by their ances-
tors through enslavement has been widely publicized.
Acknowledgment of past guilt in the form of apology goes a long
way toward healing national woundedness and building peace between
Community Reparations 97

nations and among ethnic groups within nations. As societies emerge


from war, genocide, and/or ethnic oppression, their most important task
is to promote reconciliation so they can move toward peace and stability.
Reconciliation, when successful, enables victims to become survivors
and divided societies to transform themselves into communities (Daly
and Sarkin, 2007).
Efforts to promote reconciliation include truth and reconciliation
commissions modeled on the landmark commission in South Africa. The
countries of East Timor, Sierra Leone, Morocco, and Peru have estab-
lished such commissions as a means of validating the suffering of the
masses under a previous regime that involved bloodshed and torture.
In the United States, in Greensboro, North Carolina, the first Ameri-
can experiment with a truth and reconciliation commission process has
taken place in recent years. In 1979, members of the Ku Klux Klan,
American Nazi Party, and police officers killed five people and wounded
ten others who were gathered for a march for economic and “racial”
justice (Duke University, 2007). As of this writing, plans are underway
for the commissioners to hear testimony and then suggest ways that the
com-munity can heal from the hate crime and violence that took place
almost 30 years ago.
Sometimes, reparations, as for Japanese Americans, are provided to
compensate for losses; often the revelations from the victims’ narra-
tives—the truth telling—are ends in themselves (as in South Africa). In
many parts of the world where mass atrocities were committed even long
ago, the pain is still very real. Japan’s wartime enslavement of women, for
example, has resurfaced today as a political issue as the women involved
await full redress of the wrongs that were inflicted upon them. In 2005,
the Japanese High Court rejected a claim for compensation on behalf of
nine Taiwanese women who were forced to serve as “comfort women” or
sex slaves during World War II for Japanese soldiers. Women from Korea,
the Philippines, China, Indonesia the Netherlands also have demanded
that Japan accept historical responsibility and provide compensation for
the 200,000 or so women who were disgraced and dehumanized in this
way. In 1993, the Japanese government did apologize and later set up a
compensation fund, but one that relies on private donations (BBC News,
2007). Meanwhile, an active reparations campaign is underway in China
98 Restorative Justice Across the East and the West

led by former forced labor victims of the Japanese Army’s war of in-
vasion. Lawsuits against Japanese corporations are pending. Chinese
victims of biological warfare, aerial bombing, and the Nanjing massacre
are also demanding reparations.
The abduction of 13 Japanese citizens by North Korea in the late
1970s and early 1980s has caused a public furor in Japan at the same time
that North Korea awaits compensation for Japan’s war atrocities. In China,
the extensive persecution of vast numbers of teachers and professors at
the hands of Red Guard students during the 1960s Cultural Revolution is
being brought to light by books such as Victims of the Cultural Revolution
by Wang Youqin (2004). The website, www.chinesememorial.org, bears
the slogan, “We will never forget you.”
In the United States, the priest sexual abuse scandal, which has taken
the Catholic Church by storm, lends itself to the possibility of reparations.
Restorative justice principles as opposed to seeking retribution, are highly
relevant to the needs of both the perpetrators and survivors of clergy
sexual abuse. In one case, at least, from the diocese of Providence, Rhode
Island involving lawsuits by 36 people who were sexually abused as
children by priests, and awards were provided in varying amounts propor-
tionate to the severity of the abuse. What is remarkable about the case is
that it was resolved not adversarily but through marathon mediation ses-
sions. Survivors were treated with empathy by the church representatives;
instead of attacking the victims’ stories, compassion was shown and
apologies offered. Consistent with the principles of restorative justice, the
emphasis was on helping the victims, the church, and the community to
heal from the wrongs that had been done (Carroll, 2002).

Conclusion
On the international stage, the thrust for a restorative vision has been
embraced through the role of the United Nations. Following consultation
with non-governmental organizations, the UN, through its Commission
on Crime Prevention and Criminal Justice, approved a Canadian reso-
lution that encourages countries to use the basic principles of restorative
justice and to incorporate restorative justice programming in their crimi-
nal justice processes. These principles or guidelines were formulated by
Community Reparations 99

representatives of the 38 countries who attended a special UN con-


ference for this purpose (cf RJ, 2002). Sadly, the United States did not
participate in the drawing up of these guidelines.
Evaluation of the effectiveness of restorative justice programs at the
societal level could be in accordance with the aims of respect for human
rights as spelled out in the UN Universal Declaration of Human Rights
(RJ, 2002). Relevant Articles of the Declaration include the right to
protection, to ownership of property, to life, liberty, and security, even
to health and medical care and for the right not to be subjected to torture
or cruel and inhuman treatment. The UN Declaration could provide
guidance and a consensual foundation to cover many of the things we
look to restore and protect in restorative processes. Above all else, resto-
ration of human dignity to both victim and offender should be primary.
In summary, the restorative process with its peacemaking and re-
conciliatory attributes is a powerful tool for handling conflict. Whether in
a one-on-one situation or writ large, peacemaking is enhanced when
amends can be made in a spirit of reconciliation. Forgiveness and healing
can go hand in hand. Forgiveness—in the sense of an ability of the aggrie-
ved party to let go—can never be forced. When it does occur, forgiveness
can be a healing force for both victim and offender. Through counseling
preparatory to victim-offender-community conferencing, social workers
can play a key role in helping participants deal with strong feelings con-
nected to the offense.
As a paradigm that envisions systemic social change, as one that
can be applied at the micro level to reach one youth in one community,
or at the macro level to help heal a nation’s woundedness, restorative
justice has the potential to be one of the most influential models of the
21st century.
Worldwide, bolstered by endorsement from the United Nations, the
European Union, and entire governments, the restorative justice concept
has shifted from the periphery of justice discourse to the very center.
The theme of restorative justice—violence wounds ... justice heals—
holds an important message for policy makers in search of a just society.
It holds an important message for the social work profession as well,
especially when we expand the definition of violence to include struc-
tural violence. At the time of this writing with the war in Iraq dividing
100 Restorative Justice Across the East and the West

the world into warring camps, the challenge for the future will be to try
to somehow undo the damage that has been done, that always is done in
wartime, to heal the wounds of individuals, families, and nations.

REFERENCES
Bazemore, G. and Schiff, M. (2001), Understanding Restorative Community
Justice: What and Why Now?, in G. Bazemore and M. Schiff (eds.), Re-
storing Community Justice: Repairing Harm and Transforming Commu-
nities, Anderson: Cincinnati, OH.
Bazemore, G. and Umbreit, M. (1998), Balancing the Response to Youth Crime
Prospects for a Restorative Juvenile Justice and the Juvenile Court: Ex-
ploring Victim Needs and Involvement in the Response to Youth Crime,
International Review of Victimology, Vol. 6, pp. 295-320.
BBC News (2007), Japan Refuses Sex Slave Apology, British Broadcasting
Company, newsvote.bbc.co.uk/mpapps/pagetools/print/news.
Carroll, M. (2002), $13.5 Million Settlement in Rhode Island Clergy Abuse,
The Boston Globe, www.boston.com/globe/spotlight/abuse.
Daly, E. and Sarkin, J. (2007), Reconciliation in Divided Societies: Finding
Common Ground, University of Pennsylvania Press: Philadelphia, PA.
Duke University (2007), News Communications: Remembering Greensboro,
Duke News, www.dukenews.duke.edu/2007/02/Greensboro.
Heffernan, K.; Johnson, R., and Vakalahi, H. (2002), Ho’okele: A Pacific Is-
land Approach to Aging, paper presented at the Baccalaureate Program
Directors Conference, Pittsburgh, October 23-25.
Hudson, J. and Galaway, B. (1990), Community Service: Toward Program De-
finition, Federal Probation, Vol. 54, No. 2, pp. 3-9.
Hurdle, D. (2002), Native Hawaiian Traditional Healing: Culturally-Based In-
terventions for Social Work Practice, Social Work, Vol. 47, No. 2, pp.
183-92.
RJ, Restorative Justice (2002), United Nations Crime Commission Acts on Ba-
sic Principles, www.restorativejustice.org.
Sinkinson, H.D. and Broderick, J.J. (1998), A Case Study of Restorative Justice:
The Vermont Reparative Probation Program, in L. Walgrave (ed.), Re-
storative Justice for Juveniles: Potentialities, Risks and Problems, Leuven
University Press: Leuven, Belgium.
Sullivan, D. and Tifft, L. (2001), Restorative Justice: Healing the Foundations
of Our Everyday Lives, Willow Tree: New York.
Community Reparations 101

Swart, S. (2000), Restorative Processes: Mediation, Conferencing and Circles,


www.restorativejustice.org.
Thorvaldson, S. (1990), Restitution and Victim Participation in Sentencing: A
Comparison of Two Models, in B. Galaway and J. Hudson (eds.), Cri-
minal Justice, Restitution, Reconciliation, Criminal Justice: Monsey, NY.
Van Wormer, K. (2004), Confronting Oppression, Restoring Justice: From
Policy Analysis to Social Action, Council on Social Work Education: Ale-
xandria, VA.
Wang, Y.J. (2004), Victims of the Cultural Revolution: An Investigative Ac-
count of Persecution, Imprisonment and Murder, Open Magazine: Hong
Kong.
8
____________________________

Restorative Justice Almost


50 Years Later: Japanese
American Redress for Exclusion,
Restriction, and Incarceration
RITA TAKAHASHI

Almost fifty years after the United States Government violated the hu-
man and civil rights of Japanese Americans and infringed their funda-
mental Constitutional rights, actions were taken by the US Federal Go-
vernment to officially apologize, provide monetary compensation, and
establish a community education fund. Although these actions do not
fully compensate for the magnitude of wrongs inflicted against persons
of Japanese ancestry, based solely on their ancestry, at least it addresses
the wrongs by taking some form of symbolic restorative action.
On August 10, 1988, President Ronald Reagan signed the Civil Li-
berties Act, which authorized the government to provide a $20,000
lump-sum payment to all eligible persons who were adversely affected
104 Restorative Justice Across the East and the West

by the 1942 discriminatory Government actions (Hata and Hata, 2006;


Hatamiya, 1993; Takahashi, 1998; Takezawa, 1995). In addition, it au-
thorized funds for community education, and an official US Govern-
ment apology to persons of Japanese ancestry who were wrongfully ban-
ned and removed from the US’s West Coast, restricted in their move-
ment, precluded from possessing items and property other US Ameri-
cans were allowed to have, and incarcerated in US concentration camps
during World War II (Takahashi, 1998, 2007; Yamamoto et al., 2001).

Background
On February 19, 1942, President Franklin D. Roosevelt signed Execu-
tive Order 9066, which led to the en masse exclusion of more than
120,000 persons of Japanese ancestry from the West Coast of the United
States (Asahina, 2006; Hayashi, 2004; Kashima, 2003; Muller, 2001;
Robinson, 2001). This affected the entire State of California, western
halves of Oregon and Washington, portions of Arizona, and Alaska
(Hata and Hata, 2006; Hayashi, 2004; Takahashi, 1980, 1978, 1998,
2007). In addition, many were picked up from Hawaii and Latin Ameri-
can countries and forcefully detained.
This Executive Order was given legitimacy and it was strengthened
by legislative actions and judicial decisions, all of which were rendered
after Executive Order 9066 was signed. For example, Public Law 503,
passed by the US Congress, made it a crime to not comply with orders
emanating from Executive Order 9066. Further, the courts, including the
US Supreme Court, rendered several decisions that supported restric-
tions, exclusions, and incarcerations imposed under Executive Order
9066. Most famous among the Supreme Court cases involved Mitsue
Endo, Gordon Hirabayashi, Fred Korematsu, and Minoru Yasui (Chin,
2002; Robinson, 2001; Takahashi, 1980).

Restorative Justice
In this chapter, restorative justice relates to and applies the theory of
justice whereby actions are taken to repair or rectify wrongs, injustices,
or harms. While full and complete redress or restoration is usually not
Japanese American Redress for Exclusion, Restriction, Incarceration 105

possible, at least some actions yielded symbolic messages that some


form of restoration is at least attempted.
Collaborative and participative processes are essential to restorative
justice. Persons affected and harmed by the actions of others (including
governments) should be active participants in restorative measures, not
passive recipients. Japanese Americans who were restricted, excluded,
and incarcerated during World War II, for example, were actively in-
volved in making the US Government accountable for its discrimi-
natory policies. Working with the legislative and executive branches of
government, the victims articulated remedies and insisted on minimums:
monetary compensation, US Government acknowledgement of wrongs,
US Government apologies for the violations of human, civil, and con-
stitutional rights, US Government publication and dissemination of in-
formation about the facts, circumstances, and implications surrounding
restrictions, exclusion, and incarceration policies and programs (Taka-
hashi, 1998).

Restorative Justice Applied to Japanese Americans


Recognizing that the restrictions, exclusion, incarceration policies led to
major hardships and losses on the part of innocent residents and citizens,
the US Government passed the Evacuation Claims Act of 1948 (ap-
proximately 3 years after the US Government allowed Japanese Ameri-
cans to return to their West Coast homes). The purpose of this act was to
at least provide some monetary relief to individuals and families who
documented and verified their monetary losses resulting from the US
Government’s restrictions, exclusion, and incarceration policies. Little
was actually paid; estimates were that less than 10 percent of actual
monetary losses were compensated. No compensation was provided for
pain, suffering, and violations to human, civil, and constitutional rights
(Takahashi, 1980). Certainly, restorative justice was not the central
purpose of this legislation.
The Civil Liberties Act of 1988 was very different from the Eva-
cuation Claims Act of 1948. First, the Civil Liberties Act of 1988 re-
flected the recommendations of a US commission that was established
by the US Congress to study the facts and circumstances of the US’s
106 Restorative Justice Across the East and the West

decision to restrict, exclude, and incarcerate all persons of Japanese


ancestry. The Civil Liberties Act of 1988 acknowledged, respected, and
incorporated many of the recommendations presented by the congres-
sional commission (Hatamiya, 1993; Takahashi, 1998; Takezawa, 1995).
Details about this commission’s work and recommendations are pre-
sented in the next section of this study.
Second, the Civil Liberties Act of 1988 was different from the Eva-
cuation Claims Act of 1948 because it did not require persons to apply
for compensation. Rather, the US Government was responsible for loca-
ting all eligible persons and providing the $20,000 individual redress
due to them. If a person opted to do so, they could help the US Govern-
ment by supplying them with needed information about their exclusion,
incarceration, and other details (such as one’s address where a check
could be sent). Third, recipients did not have to document and verify
losses. One was made eligible to receive the lump sum of $20,000 by
virtue of the fact that they were restricted, excluded, and/or incarcerated
by US Government orders solely on the grounds of their Japanese an-
cestry. Unlike the Evacuation Claims Act of 1948, there was no vari-
ation in compensation based on individual monetary losses. Fourth, the
US President, on behalf of the US Government, acknowledged the
wrongs and issued an apology to each individual person affected by the
discriminatory US policy. Fifth, the Civil Liberties Act of 1988 autho-
rized the establishment of community funds to educate the public and to
help honor Japanese Americans as a collective.

Congressional Commission Findings and Recommendations


Through an act of the US Congress, a bipartisan US Commission on
Wartime Relocation and Internment of Civilians (CWRIC) was estab-
lished in 1980. The Commission, which was chaired by Joan Bernstein,
was “directed” to:

1. review the facts and circumstances surrounding Executive Order


Number 9066 …
2. review directives of United States military forces requiring the relo-
cation, in some cases, detention in internment camps of American
Japanese American Redress for Exclusion, Restriction, Incarceration 107

citizens …
3. recommend appropriate remedies (CWRIC, 1982, Part 1, Personal
Justice Denied: 1).

To implement its directive from the US Congress, the CWRIC held


congressional hearings throughout the US, gathered data from multiple
federal agencies and government branches, received written and oral
statements and testimonies from persons who were directly affected by
government orders, public residents and citizens, government officials,
agencies, and institutions across the US
In 1983, after extensive nationwide study, the US Commission sent
to Congress its published two-part report, Personal Justice Denied. The
first part presented background information and included factual docu-
mentation surrounding the exclusion and incarceration of Japanese
Americans from 1942 to mid-1946 (CWRIC, 1982). Part 2 of the publi-
cation stated conclusions and issued recommendations, which reflected
the views of the nine CWRIC Commissioners.
The CWRIC concluded that “Executive Order 9066 was not jus-
tified by military necessity, and that the decisions that followed from
it—exclusion, detention, the ending of detention and the ending of
exclusion—were not founded upon military considerations. The Broad
historical causes that shaped these decisions were race prejudice, war
hysteria and a failure of political leadership … A grave personal injus-
tice was done to the American citizens and resident aliens of Japanese
ancestry who, without individual review or any probative evidence
against them, were excluded, removed and detained by the United States
during World War II” (CWRIC, 1983, Part 2, Recommendations: 5).
Given the injustices, wrongs, and failures perpetrated by the US
Government, the CWRIC recommended that US governmental apolo-
gies and monetary compensation be given to each eligible person and
that a community fund be established to educate the public to deter a
repeat of such unjust policies in the future.
108 Restorative Justice Across the East and the West

Redress for Japanese Americans


Five years after the CWRIC published its report and recommendations,
the Civil Liberties Act of 1988 became law. This law provided the
authorization needed for redress, but without money, redress would be
incomplete. Therefore, major efforts had to be directed at getting monies
appropriated so that redress would become a reality (Takahashi, 1998).
It took some additional years to get monies appropriated and for the
government to establish the structure and mechanisms to issue monetary
redress and payments to eligible persons. The US Department of Justice
(DOJ), Office of Redress Administration, was established to administer
the redress eligibility payment program. An established DOJ employee,
Bob Bratt, became the Office’s first administrator/director.
By the time redress payments and apology letters began to be
mailed to eligible persons, it was almost fifty years after the violations
occurred (Yamamoto et al., 2001, Takahashi 1998). The road to redress
was a long and arduous one for activists fighting for restorative and
social justice from their government. Many forces had to come to bear
on achieving redress. It demanded resources (people and money), net-
works (individuals, organizations, institutions, and communities), con-
nections (policy making politicians), collaborations (of all people and
resources involved), and coordination (of everything everyone involved)
(Takahashi, 1998, 2007).

Lessons and Implications


The major lesson learned from the Japanese American redress experi-
ence is that, one must be mindful, vigilant, determined, organized, and
persistent to make wrong doers accountable for their actions. For Japa-
nese Americans, some form of restorative justice came 50 years after the
violations, but the fight was well worth it. On principle, all must take
responsibility to ensure that human rights, equity and social justice pre-
vail. Extensive use of time, energy, and resources are needed to achieve
results.
Another lesson is that, there are many forms of restorative justice.
As a result, the diversity of victims will call for multiple avenues of
rectifying actions. Apologies, money, and other actions cannot undo the
Japanese American Redress for Exclusion, Restriction, Incarceration 109

wrongs that occurred, but they can send symbolic messages that re-
cognize and acknowledge injustices and prevent their duplication. For
some, a symbolic form of restoration may be more important than tan-
gible and compensatory measures. For others, just saying sorry “isn’t
enough” (Brooks, 1999).
What is important is that, the restoration should be consistent with
the forms that are utilized by people and governments within the context
where the wrongs occurred. In most cases, multiple types of restoration
should be pursued, to honor and respect the diversity of victims involved.
The implications for restorative justice are expansive. Not only
does it impinge on the directly affected victims, but it also influences
organizations, institutions, communities, and societies. Injustices and
wrongs directed at any one component of society reverberate and affect
all.
When wrongs or injustices occur or are meted out, the perpetrators
should be held responsible and accountable. Whether the wrongs occur
on an individual, group, organizational, institutional, or governmental
level, all must be responsible for rectifying the wrong and attempting to
restore rights. While one can never undo what has already occurred, one
can take action to at least symbolically acknowledge the severity of the
situation and institute actions to acknowledge the wrongs or injustices,
restore principles and standards of justice, and institute measures to pre-
vent any future repeat of the same.
Governments should exist to protect the human rights of and ensure
social justice for all its residents and citizens (Sowers and Rowe, 2007).
If it fails in these duties and responsibilities and institutes injustices and
wrongs, governments should (as a minimum) do the following to at least
work toward restorative justice:

1. Establish government commissions to gather factual information,


receive testimonies, study and analyze the details about what hap-
pened, how, by whom, when, and for what reason(s).
2. Acknowledge the injustices and wrongs openly and publicly.
3. Publish and disseminate facts and circumstances surrounding the
injustices and wrongs.
110 Restorative Justice Across the East and the West

4. Apologize for all aspects and components of the injustices and


wrongs.
5. Set up a mechanism whereby the policy makers and citizens will be
educated as to what happened, how it occurred, and what can be
done to prevent repeat injustices and wrongs.
6. Provide means to study, evaluate, and disseminate what has been
learned.
7. Provide remedial action(s) consistent with the country or context
where the injustice or wrong occurred. The United States, for ex-
ample, relies on a system of monetary compensation for wrongs, so
this is what is applied for government as well as individual or group
wrongs in the US.
8. Consult with persons and groups affected by the injustices and
wrongs. Craft restorative means and measures in consultation with
those who have been injured or subjected to injustices and wrongs.
9. Take action (e.g., establish laws to prevent and remediate) to pro-
actively set into place actions that enforce what is just and right.
10. Collaborate and cooperate with others (e.g., other governments) to
share experiences and provide ideas for preventative and restorative
justice agendas.
11. Be transparent and open. Keep agendas, actions, and decisions
available to all affected by the decisions.
12. Be responsive to queries and requests. Take all input seriously.
13. Ensure that human rights are respected and protected. Be vigilant,
mindful, analytical, insightful, and actionable about rights.
14. Strengthen and maintain principles and foundations of social justice.
Where and when needed, invoke preventative and restorative mea-
sures.

REFERENCES
Asahina, R. (2006), Just Americans: How Japanese Americans Won a War at
Home Abroad: The Story of the 100th Battalion/442nd Regimental Combat
Team in World War II, Gotham: New York.
Brooks, R.L. (1999), When Sorry Isn’t Enough: The Controversy Over Apo-
logies and Reparations for Human Injustice, New York University Press:
Japanese American Redress for Exclusion, Restriction, Incarceration 111

New York.
Chin, F. (2002), Born in the USA: A Story of Japanese America, 1899-1947,
Rowman Littlefield: Lanham, MD.
Hata, D.T. and. Hata, N.I. (2006), Japanese Americans and World War II:
Mass Removal, Imprisonment, and Redress, Harlan Davidson: Wheeling,
IL
Hatamiya, L.T. (1993), Righting a Wrong: Japanese Americans and the Pas-
sage of the Civil Liberties Act of 1988, Stanford University Press: Stanford,
CA.
Hayashi, B.M. (2004), Democratizing the Enemy: The Japanese American
Internment, Princeton University Press: Princeton, NJ.
Kashima, T. (2003), Judgment Without Trial: Japanese American Imprison-
ment During World War II, University of Washington Press: Seattle, WA.
Muller, E.L. (2001), Free to Die for Their Country: The Story of the Japanese
American and Draft Resisters in World War II, University of Chicago
Press: Chicago, IL.
Robinson, G. (2001), By Order of the President: FDR and the Internment of
Japanese, Americans, Cambridge, Harvard University Press: Cambridge,
MA.
Sowers, K.M. and. Rowe, W.S. (2007), Social Work Practice and Social Justice:
From Local to Global Perspectives, Brooks/Cole: Belmont, CA.
Takahashi, R. (1978), “Military Necessity”: An Effective Rhetorical Tool for
Policy Implementation and Social Change, paper, University of Pittsburgh:
Pittsburgh, PA.
———(1980), Comparative Administration and Management of Five War Re-
location Authority Camps: America’s Incarceration of Persons of Japa-
nese Descent During World War II, dissertation, University of Pittsburgh:
Pittsburgh, PA.
———(1998), Japanese American Activists Speak: What the Insiders Know
About Redress (Videotape), San Francisco State University’s Edison Uno
Institute: San Francisco, CA.
———(2007), US Concentration Camps and Exclusion Policies: Impact on Ja-
panese American Women, in G. Kirk and M. Okazawa-Rey (eds.), Wo-
men’s Lives: Multicultural Perspectives, Mayfield: Mountain View, CA.
Takezawa, Y.I. (1995), Breaking the Silence: Redress and Japanese American
Ethnicity, Cornell University Press: Ithaca, NY.
US Commission on Wartime Relocation and Internment of Civilians, CWRIC
(1982), Personal Justice Denied: Report of the Commission on Wartime
112 Restorative Justice Across the East and the West

Relocation and Internment of Civilians, US Government Printing Office:


Washington, D.C.
———(1983), Personal Justice Denied, Part 2: Recommendations: Report of
the Commission on Wartime Relocation and Internment of Civilians, US
Government Printing Office: Washington, D.C.
Yamamoto, E.K.; Chon, M.; Izumi, C.L.; Kang, J., and Wu, F.H. (2001), Race,
Rights and Reparation: Law and the Japanese American Internment, As-
pen Law Business: New York.
9
____________________________

Compatibility Between
Restorative Justice and
Chinese Traditional Legal Culture
STEPHEN CHI-KONG LEE

Restorative justice is a precious gift from the West. However, as early as


ancient China, the notions such as the non-lawsuit, rule of rites, edu-
cation and persuasion contained in Chinese traditional legal culture of
numen are similar to restorative justice today.
The goal of bringing about a harmonious community or society is a
central theme of both belief systems. What is described in this essay is
the compatibility between Chinese traditional legal culture and modern-
day restorative justice.
114 Restorative Justice Across the East and the West

Background
Chinese traditional legal culture, which has a profound impact on pre-
sent-day justice, has a long history. The legal spirit contained in ancient
legal practices still persists today.
As early as ancient China the notions such as the non-lawsuit, rule
of rites, education and persuasion were integral to Chinese traditional
legal culture. Modern forms of restorative justice have been developing
over the last 20 or 30 years, with concerns about the material, emotional
and social needs of victims and helping offenders reintegrate into the
community to prevent recidivism. Moreover, restorative strategies in
China, as elsewhere, provide offenders with an opportunity to take
responsibility for their offense, strive to create an effective community
useful for the rehabilitation of offenders and the prevention of crime,
and providing an alternative to the expensive cost and slow actions in
the existing criminal justice system (Wang, 2005). Restorative justice
guides offenders in providing reparations and restitution to victims by
means of apologies, community services, living assistance and so on.
Ideally, offenders are forgiven by victims, their family and other com-
munity members, and are reintegrated into the community at the same
time as victims are restored.
Though no special legal systems in traditional legal culture of an-
cient China were as specific and comprehensive as restorative justice, a
large number of ideas and practices of restorative justice can be seen in
various legal notions and legal systems in different periods of Chinese
history. Compatibility of ideas and compatibility of systems are descri-
bed respectively as follows:

Compatibility of Ideas
Placing a premium on the “doctrine of the mean” and peaceful reso-
lution of conflict, Chinese traditional legal culture, being built on prin-
ciples of Confucianism, historically pursued a society where the indivi-
dual should live in harmony with Heaven and Nature. This philosophy is
consistent with restorative justice’s emphasis on restoring breaches in
relationships with victims and the community. Several typical ideas in
Chinese traditional legal culture are described as follows:
Restorative Justice and Chinese Traditional Legal Culture 115

Non-Lawsuit
One of the important features of Chinese traditional legal culture, non-
lawsuit, which means settlement of disputes without litigations, legally
reflects Confucianist ideas. Confucius was the first person who put
forward and systematically demonstrated thinking of non-lawsuit solu-
tions. “In hearing litigations,” he said, “I am like any other person. What
is necessary is to cause the people to have non-lawsuit.” Confucius’s
quest can be read as a search for non-lawsuit remedies between people.
His belief was a state can be stable and orderly only through moral go-
verning and ritual educating.
The philosophy of non-lawsuit brought about stabilization of re-
gime, courtesy of people, the flourishing of morality and the harmony of
society, and has had a profound impact on Chinese judicial tradition.
A reaction has set in China to the rising cost of litigation and over-
loading of the judicial system. The litigation explosion was criticized for
only alleviating the symptoms and failing to effect a permanent cure to
social problems. From the perspective of restorative justice, the mo-dern
criminal judicial system, which is mainly about retributive justice,
places its emphasis on punishing offenders and neglects the interests of
victims and the community (Wang, 2005). Since restorative justice pro-
vides a new pattern of disputes and resolution without the necessity for
litigation, this approach is compatible with the theme of non-lawsuit in
Confucianism.
The goal pursued by Confucianism—harmonious order—necessari-
ly implies a minimization of hostile litigation, which is also the goal of
restorative justice. Mending broken relationships and the prevention of
crime and violence are themes of both belief systems.

Rule of Rites
China is well known as a kingdom of amenity, and Chinese traditional
society is commonly called “the society of rite law.” Undoubtedly, rites
play a decisive role in Chinese traditional legal culture as was done
historically. With the succession and development of the “rite law” since
Western Zhou Dynasty and Chou Kung’s view of “bright virtue and
careful punishment” in substance, Confucian legal thought put forward a
116 Restorative Justice Across the East and the West

set of legal ideas protecting the “rule of rite,” advocating the “rule of
morality” and valuing the “rule of man.” “Rites were transformed into
behavioral norms that ultimately evolved into behavioral norms based
on state power and codified into law. The combination of rite and law
comprises the most essential feature of the Chinese Legal System and
unique Chinese legal culture” (Zhang, 2005: 3). The Chinese notion of
the rule of rite has even been recognized in the West. Joseph Needham
(1990), for example, considers Chinese rites comparable to what is cal-
led natural law in the West.
Chinese sub-administrative structure, where “Li Zhang,” “Ting
Zhang” and “Zu Zhang” are responsible for “educating people through
rites and mediating disputes,” has been derived from tradition. With the
education and prevalence of the key qualities of Kindness, Justice,
Etiquette, Wisdom, Faith, Fealty, Filial Piety, Morals, and Righteous-
ness, the lives of people were improved generally. These qualities were
useful not only for social control by authorities but also for preventing
crime. Chinese traditional society correspondingly placed great em-
phasis on education rather than punishment, under the guidance of the
notion of rule of rite. Those who carried out the system said, “Offenders
should be responsible for the damage they caused, at the same time they
can be saved through persuasion, education and healing by diverse
people in the society” (Wu, 2005). Confucianism like restorative justice,
values the positive effect of education. In ancient China, however,
Confucian education was hierarchical with clear boundaries between
teacher and learner.
Confucianism’s strong emphasis on education is revealed in the
words of the Master: “To put the people to death without having edu-
cated them—this is called cruelty.” Confucius advocated alternating
leniency with severity—”Morality-Primary, Punishment-Secondary” in-
stead of excluding the application of penalties completely. Similarly,
restorative justice is future oriented and strives to resolve existing
problems such as how to restore the damage caused by an offense and
how to prevent future criminal conduct (Liu, 2005).
Restorative Justice and Chinese Traditional Legal Culture 117

Other Legal Traditions


In addition to the concepts of non-lawsuit and rule of rites, there are
many other important traditional legal traditions in ancient China.
Among these are: “bright virtue careful punishment,” “morality-primary,
punishment-secondary,” “emotion overriding the law,” “filial piety re-
spect,” “the father conceals the misconduct of the son, the son conceals
the misconduct of the father” “determination of the penalty depending
on the relationship with offenders” and so on. These concepts all vali-
dated the feudal hierarchy and protected social order at that time. From
the viewpoint of the centennial year of Chinese history, this generation
of rules and beliefs advanced the development of the state and helped
stabilize the ancient society of China in conjunction with religious
beliefs favoring humility, endurance, helping one another, respect, and
sacrifice. These qualities are identical to the emphasis on harmony and
stability of restorative justice. Therefore, we see again that “many ideas
of restorative justice have a long history and a profound foundation in
China” (Wang, 2005).

Compatibility of Systems
Ancient Chinese law had several distinguishing features. The most im-
portant two of these are the “Bao-Gu” system and mediation system.

1. The “Bao-Gu” system


The “Bao-Gu” system was a kind of legal system that focused on com-
pensating the victim and measuring the penalty according to a set time
period. This means after the crime was committed, the offender was
required to compensate the victim. Once this was done, the offender was
given a lighter or mitigated punishment. The “Bao-Gu” system took
shape in the pre-Qing period, and extended through many dynasties, and
right up until the Ming and Qing period. This system has been deve-
loping and improving since the day it was born. The reason why it was
adopted and improved by dynastic authorities is that it embodies the
plain notion of fairness and ultimately helps maintain social stability.
118 Restorative Justice Across the East and the West

The “Bao-Gu” system in traditional Chinese culture echoes Resto-


rative Justice that we advocate today in many respects as follows:

(1) The “Bao-Gu” system restores the victim’s feeling of security and
dignity by helping the victim obtain compensation.
(2) The direct consequence of “Bao-Gu” is that the offender’s responsi-
bility is lightened or mitigated, which facilitates his or her reinte-
gration into the society. Similarly, restorative justice advocates that
the offender should take responsibility for the consequence of his or
her offense. If the offender can restore the harm by his or her
positive action, he or she will be recognized and forgiven by the
society and other interested parties so that the sense of shame can be
eliminated.
(3) The “Bao-Gu” system establishes the base of non-lawsuit practice,
so that the social relation that had been broken by the offense can be
restored. This helps reinforce social stability in the community and
alleviates the conflict between the offender and the victim.
(4) The application of the “Bao-Gu” system, like restorative justice, can
spare financial resources of criminal justice system, especially in
reducing the costs of imprisonment.

2. Mediation
Under the culture of ancient China, with harmony as its central theme,
citizens are encouraged to cultivate the social values of “The Golden
Mean,” “non-lawsuit” and “Precious Peace.” Accordingly, the tradition
of resolving disputes by mediation emerged. As noted by American
scholar Gilbert Rozman (1988), the legal system of ancient China pro-
moted the solution of conflict by efficient non-legal means when pos-
sible. Standard rules for alleviating conflict were set down.
As an efficient mechanism of resolving disputes in ancient China,
the traditional mediation system, through a long period of transference
and accumulation, has formed its own characteristics as follows:
Restorative Justice and Chinese Traditional Legal Culture 119

(1) The traditional Chinese mediation system consists of two basic


forms—official mediation and civil mediation. The latter consists of
both neighbor mediation and clan mediation. Mediation usually is
an informal process, so civil mediation can be carried out either in
the house of the person being affected or on the farm. Even official
mediation is not restricted to a certain place. A typical example is
that, when a county magistrate of the Qing Dynasty named Lu Long
once mediated a dispute between two brothers who contested a
piece of property, he asked them to call each other Brother. After
many attempts at reconciliation, the brothers broke down crying and
requested to withdraw their claims (Zhang, 2005: 269). Moreover,
there is the famous case of Confucius’s imprisonment of a father
and son who had engaged in disputes for three months; this could
also be seen as a form of mediation.
(2) Mediation, as based on Confucian ethics and local convention, con-
vinces people through use of reasoning and embodying such prin-
ciples as “self-surrender” “moralization,” to reach the ideals of “Pre-
cious Peace” and “Non-Lawsuit.” Keep in mind the cultural values
as influenced by Confucianism, Confucian ethics, for example, pla-
ced a value on loving one’s parents and revering authority, on rela-
tionships between the youth and the elderly, kindness of father and
fealty of son, friendliness for elder brothers and respect for younger
brothers, and loyalty between husband and wife. These have been
the golden rules of Chinese ethics for over 2,000 years.
(3) Mediation has a humanizing function. The state or county official,
when mediating cases, “is much more like a kindhearted parent
intervening in his children’s quarrel than a judge strictly executing
the law” (Huang, 1988: 12). In ancient mediation, cases where the
mediator educated the parties could be found everywhere. For
example, when a county official in Tang Dynasty named Kuang Kui
heard a case of two brothers contending for the land, he read and
explained the poem “Cutting” in the Book of Songs (by Shi Jing).
This helped the brothers not only reconcile with each other but also
realize that such a family dispute elicits shame (Chen, 2001).
(4) Traditional mediation was mandatory in nature. Clan mediation was
required as a procedure in civil dispute: After a dispute rose, the par-
120 Restorative Justice Across the East and the West

ties were not allowed to bring the dispute directly to the govern-
ment; otherwise they would be punished. Official mediation today is
similarly mandatory, requiring a hearing. The mediator, who pre-
sides over the mediation, can use any means such as imposing
penalties to force the parties to accept the mediation in order to
avoid disputes. The primary manner of mediation is instruction.
Because the instructors are highly respected in China, listeners are
in a subordinate position—local officials over civilians, the clan
leader or county gentlemen over villagers, elders over youth—so
these relationships are clearly hierarchical. The respect engendered
by position provides respect to the process.

What the traditional mediation system contains is the pursuit of an ideal


society for the Chinese people, which is to achieve the “unity of heaven
and human beings,” good order between nature and society, harmonious
unification and equilibrium among all the social conflicts, and finally to
realize the goals of non-dispute and non-lawsuit. The mediation system
of traditional Chinese society is compatible with society’s strong desire
for order and stability which not only reduces the cost of resolving
conflict for the parties, but mitigates social conflict and lawsuit abuse. It
is the existence of the mediation system that makes order, stability, and
the harmony of all the society possible. The mediation system from
ancient China provides a brand-new model in case handling that can be
modeled in other countries. This model once seemed strange and exotic
to western countries for a long time but was later adopted as a resto-
rative justice strategy based on “Asian experience.” Mediation systems
deriving from ancient China indeed have had excellent results in re-
solving some western social problems such as excessive lawsuits and
tension in human relationships.

Conclusion
Harmony is considered desirable at all times and all over the world; a
harmonious society is a beautiful society and a harmonious life is a
beautiful life. Harmony can only be realized on the basis of order and
Restorative Justice and Chinese Traditional Legal Culture 121

stability, and Chinese thousand years’ history reveals that, without a


stabilized order, the development of a harmonious society is impossible.
“From the belief of Heaven-Nature-Harmony, ancient Chinese civili-
zation created a series of traditional value systems. When dealing with
complicated human relationships, Chinese people considered cosmic
harmony as a model” (Liang, 2002: 229). In the view of traditional Chi-
nese culture, differences among humans are natural, and rites and rituals
can help resolve these differences.
The difference between the harmony required by traditional Chi-
nese legal culture and the one required by the restorative justice is only
in the different paths to realizing truth and justice. As for ultimate goals,
both traditional Chinese legal culture and western restorative justice aim
for a stable and harmonious society through community justice strate-
gies for maintaining balance and reducing conflict.

REFERENCES
Chen, H. (2001), Mediation, Lawsuits, and Justice: Reflections on Modern
Liberal Society and Confucian Tradition, Modern Law, Vol. 3.
Huang, Z. (1998), Civil Judgment and Civil Mediation: The Expression and
Practice in Qing Dynasty, China Social Science: Beijing.
Lee, S.C.K. (ed.) (2005), Forum on Restorative Justice, Qun Zhong: Beijing.
Liang, Z. (2002), Seeking Harmony in the Natural Order, China University and
Political Science and Law: Beijing.
Liu, D. (2005), Restorative Justice and Its Use for Criminal Justice Reform of
China, in P. Wang and S.C.K. Lee (eds.), Forum on Restorative Justice,
Qun Zhong: Beijing.
Needham, J. (1990), History of Science Thought, Science: Beijing (in Chinese).
Rozman, G. (1988), The Modernization of China, Jiangsu People’s Press:
Nanjing (in Chinese).
Wang P., (2005), Look at Criminal Justice in the Third Eye, in P. Wang and
S.C.K. Lee (eds.), Forum on Restorative Justice, Qun Zhong: Beijing.
Wu, D. (2005), Another Way to Justice: A Preliminary Research on Restorative
Justice, in P. Wang and S.C.K. Lee (eds.), Forum on Restorative Justice,
Qun Zhong: Beijing.
Zhang J. (2005), The Tradition and Modern Transition of Chinese Law, China
University and Political Science and Law: Beijing.
Zhu, X. (1987), Explanations on Four Books, China Bookstore: Beijing.
10
____________________________

Working in the Mud: Community


Reconciliation and Restorative
Justice in Timor Leste
DAVID ANDROFF

This chapter examines the Timor Leste Truth and Reconciliation Com-
mission in the context of restorative justice. Following a brief discussion
of social work and restorative justice in relation to violence, Truth and
Reconciliation Commissions (TRCs) will be introduced as an inter-
vention for social welfare. The historical background of Timor Leste
will be presented, with an overview of the Timor Leste Truth and Re-
conciliation Commission (CAVR). Special emphasis is placed upon the
Community Reconciliation Process (CRP) as the key restorative justice
feature of the Timor Leste Truth and Reconciliation Commission. Criti-
ques of the CAVR and the CRP will be presented with a discussion on
evaluating the restorative justice and reconciliation efforts in Timor
Leste in light of recent developments.
124 Restorative Justice Across the East and the West

Social Work, Violence, and Restorative Justice


Social work has historically been concerned with justice, peace, and
human rights. Eleanor Roosevelt, a founding mother of the United
Nations Declaration of Human Rights, was influenced by Jane Addams,
a founding mother of American social work, who later became a peace
activist during World War I (Reisch and Andrews, 2001). Today, social
work has struggled to maintain its connection with justice and human
rights. The problems of ethnic conflict, genocide, and political repres-
sion present opportunities for social work to positively impact societies
recovering from violence. The harmful effects of violence extend be-
yond fatalities and physical injuries, including economic losses, displa-
ced peoples, and profound social and psychological disruptions (Cox
and Pawar, 2006; UNDP, 2005). Social workers are increasingly con-
cerned with promoting the greatest health and welfare of people and
communities suffering from violence (Barak 2003; Cox and Pawar,
2006; Glicken and Sechrest, 2003).
Restorative justice provides a framework for social workers and po-
licymakers to address social problems such as violence, crime, and
inequality. Restorative justice theory and practice has developed interna-
tionally, with many roots in the indigenous traditions of the Asia Pacific
region, including the aboriginal cultures of Australia and New Zealand
(Funabashi, 2003), and Papua New Guinea (Dinnen, 2006; Harris et al.,
1999; Howley, 2002; Schenk, 2005).
Restorative justice interventions focus on the social damage caused
by violence, and endeavor to repair the social fabric by engaging both
offenders and victims in dialogue and mediation (Braithwaite, 1989;
Braithwaite and Strang, 2000; Umbreit, 2001; Zehr, 1990). Restorative
justice attends to the needs of victims and seeks to impress the human
impact of the crime upon the offender, as opposed to retributive justice
responses that focus more upon punishing perpetrators (Braithwaite and
Strang, 2000; Umbreit, 2001). One restorative justice intervention that
has been used to address the consequences massive human rights vio-
lations is the Truth and Reconciliation Commission (Stover and Wein-
stein, 2004).
Community Reconciliation and Restorative Justice in Timor Leste 125

Truth and Reconciliation Commissions (TRCs)


Over the last quarter century, Truth and Reconciliation Commissions
(TRCs) have become one of the many responses to mass violence and
political repression (Hayner, 2001). For societies emerging from the
depths of widespread violence and terror, TRCs have the potential to
contribute to the social welfare of recovering communities. While the
literature on TRCs and human rights has mainly been the purview of
lawyers, social work has a critical role to play in the discussion of pro-
moting social recovery, implementing interventions to build healthy
communities, and helping people recover from violence.
TRCs are growing in prevalence as a restorative justice alternative
to war crimes trials, which have historically been the preferred means of
dealing with human rights violations since the Nuremburg war crimes
trials (Bass, 2000; Daly and Sarkin, 2007; Hayner, 2001; Llewellyn,
2006). The growth in popularity of TRCs is in part due to increased
frustration with the limitations of trials. Trials and tribunals, framed in
Western adversarial legal traditions, have been criticized for their lack
of attention to victims, the frequent lack of international jurisdiction
over perpetrators, their limited scope of investigation, and for being
often politically unfeasible in transitional societies with undeveloped
judiciaries (Daly and Sarkin, 2007; Minow, 1998).
The first TRCs were in Africa and Latin America, and mainly fo-
cused upon investigations of past abuses. These initial TRCs were
regarded as failures by the international community as they usually did
not mark an end to violence and repression, or a transition to improved
political and social situations (Hayner, 2001). The South African TRC
was the largest and most ambitious; emphasizing reconciliation in addi-
tion to truth-seeking and broadening the restorative justice implications
(Daly and Sarkin, 2007). In a resurgence of TRCs after the widely
acclaimed South African experience, such diverse societies as Peru,
Sierra Leone, Timor Leste, and Greensboro, North Carolina have imple-
mented these interventions.
TRCs entail the investigation of past human rights abuses whose
findings are recorded in a report produced by a temporary official body.
TRCs are often created during times of political transition to look at
recent events, involving focused investigations into politically motivated
126 Restorative Justice Across the East and the West

and targeted repression used to maintain or obtain power and weaken


political opponents, usually involving widespread abuses affecting thou-
sands of victims (Hayner, 2001). Establishing knowledge around the na-
ture and extent of human rights violations exposes the causes and con-
ditions that contributed to the violence, distributing responsibility across
perpetrators. Truth-telling can undo rumors, lies, and propaganda that
served perpetrators in creating climates of fear, intimidation, and con-
fusion. TRCs allow victims to tell their story without the interruption
and skepticism of cross examination, and to participate in the production
of a coherent, complex macro-historical narrative about an entire na-
tion’s trauma (Daly and Sarkin, 2007; Minow, 1998).
By bestowing official acknowledgment upon the victims who tes-
tify before the commission, TRCs are hypothesized to contribute to the
healing of violent trauma (Minow, 1998; Tutu, 1999). The goal of truth-
seeking requires that an objective, verifiable truth be established. While
this project has skeptics, the application of sophisticated statistical tech-
niques to produce inter-subjective agreement between data with high
levels of inter-rater reliability have resulted in rigorous and reliable
estimates of patterns and evidence of human rights violations (Ball et al.,
2000; Buur, 2002). At best, TRCs are innovative institutional processes,
with profound social and psychological implications aiding transitions
from war and repression to democratic and healthy societies (Minow,
1998; Tutu, 1999). At worst, these can be political cosmetic devices, le-
gitimizing states and obfuscating justice (Norval, 1998; Wilson, 2001).

The Case of Timor Leste


Brief Overview and Historical Background
The newest nation in Asia, Timor Leste, occupies the eastern half of a
small island at the edge of the Indonesian archipelago. With a popu-
lation of fewer than one million, half are under 15 years of age (Schli-
cher, 2005). About 90 percent of the Timorese work in rural agriculture.
The Timorese are a multilingual people; official languages are Portu-
guese and Tetun, and most of the population speaks Indonesian as well
as several other local languages. The Timorese overwhelmingly identify
religiously as Catholic, with small Protestant, Muslim, Buddhist, and
Community Reconciliation and Restorative Justice in Timor Leste 127

Hindu minorities. Indigenous religious practices, known as lisan, are


predominant, and coexist with Catholicism. Timor Leste is the poorest
nation in Asia (WB, 2003; UNDP, 2005), with about 40 percent of the
population living on less than 1 US dollar a day, and has a literacy rate
of under 50 percent (Schlicher, 2005).
For centuries, Timor Leste was Portugal’s most remote colony. Du-
ring World War II, Timor Leste was invaded first by Australia, then by
Japan in retaliation, suffering tens of thousands of deaths due to Japa-
nese atrocities, forced famine and displacements, and Allied bombings
(CAVR, 2005; Nevins, 2005). Indonesia became a US ally in the 1960s
after a brutal repression of their communist party, a relationship made
more important to the US after their defeat in Vietnam. Cold War anti-
communist containment in Southeast Asia, the disintegration of Portu-
guese colonialism, and Indonesian expansionism conspired to ensnare
the fate of Timor Leste (Philpott, 2006).
Portugal withdrew from Timor Leste in 1974 due to internal politi-
cal instability, leaving a significant power vacuum in which political
factions competed for authority (Burgess, 2004; CAVR, 2005; Nevins,
2005; Schlicher, 2005). The Fretilin party declared independence on
November 28, 1975, and nine days later Indonesia invaded and forcibly
annexed Timor Leste under the guise of restoring order amidst civil
strife. Although the occupation was not recognized by the UN, an exag-
gerated pretext of a communist threat in Timor Leste gained Indonesia
implicit support among Western allies (Lubis, 2003).
The Indonesian invasion was characterized by mass killings, rapes,
and theft. The military chemically sprayed livestock and crops which
undermined food production and resulted in a massive famine. The po-
pulation was held in large camps, and engaged in forced labor and
“Indonesianization” through forced language and political reeducation.
Indonesia impoverished Timor Leste by exploiting natural resources and
leaving the infrastructure, health, and education services underdeve-
loped (CAVR, 2005; Nevins, 2005). Timorese guerilla fighters were
pursued in a vicious anti-insurgency campaign of terror and torture. The
Catholic Church proved a positive Portuguese legacy as a center for the
resistance and maintenance of Timorese culture. Pope John Paul II visi-
ted in 1989, bringing international attention to the Timorese cause. The
128 Restorative Justice Across the East and the West

1991 Santa Cruz massacre, in which the military killed over 250 people
in a peaceful funeral march, increased international pressure on Indo-
nesia (Philpott, 2006). Timorese independence activists Jose Ramos
Horta and Bishop Carlos Belo won the Nobel Peace Prize in 1996, endo-
wing the movement with more prestige and recognition (Nevins, 2005).
After the resignation of the Indonesian President Suharto in 1998,
the new government allowed East Timor a referendum on independence.
Despite widespread intimidation by the Indonesian military, 98.6 per-
cent of registered voters participated in the referendum, voting over-
whelmingly (78.5 percent) for independence. The Indonesian military
funded and armed Timorese militias to intimidate people into voting
against independence, which recruited young, illiterate, and disaffected
men through coercion, the distribution of drugs, and promises of re-
wards and honor (Burgess, 2004; CAVR, 2005; Philpott, 2006).
The militias then massacred civilians and displaced roughly three
fourths of the population; thousands were killed, hundreds of women
raped, and the land was left in smoking ruins. About one third of the
population was transported into Indonesian West Timor (Burgess, 2004;
Govier, 2006; Philpott, 2006). An estimated 70 percent of the infra-
structure was destroyed, and over 60,000 houses were burnt (Burgess,
2004). UN peacekeeping forces secured peace quickly once deployed,
and then faced the gargantuan task of reconstruction and managing the
transition to independence (Philpott, 2006). On May 2002, Timor Leste
finally became an independent state, when an elected government assu-
med power from the UN. The new government changed the country’s
name from East Timor to the Democratic Republic of Timor Leste.
Many Timorese who had supported the Indonesian administration
feared returning home. This included militia members, their families,
and those who had favored integration with Indonesia (Lubis, 2003;
Babo-Soares, 2004). There was a widespread prediction that the victims
of the 1999 referendum violence would seek revenge upon their neigh-
bors who would now lack the protection of the Indonesian military.
Predominantly rural, the basic social unit of Timor Leste is the village,
where victims and perpetrators would have to be part of each other’s
daily lives. Unresolved anger coupled with close proximity made the po-
tential for renewed violence high (Burgess, 2004).
Community Reconciliation and Restorative Justice in Timor Leste 129

The UN established several legal mechanisms to deliver justice.


Serious crimes, including murder, rape, and torture, were dealt with
through the UN Serious Crimes Unit. New Timorese courts, with staff
with little practical legal experience, had jurisdiction over the enormous
amount of less serious crimes. The incipient legal system had trouble
processing new offenses, and it quickly became clear that older less-
serious crimes could not be processed through the overwhelmed courts.
Total immunity was rejected, due to the deleterious impact it would
have upon respect for the developing rule of law. Seeking to reduce the
strain on the judicial system and process the large volume of less serious
crimes in a short period of time, policymakers considered implementing
a village based justice mechanism (CAVR, 2005; Pigou, 2004).

The Timor Leste Truth and Reconciliation Commission—Overview


of CAVR
In 2000, the National Congress unanimously passed a resolution calling
for a Truth and Reconciliation Commission (TRC) (Burgess, 2004). The
TRC is known by its Portuguese acronym, CAVR, which translates to
the Commission for Reception, Truth, and Reconciliation. The CAVR
was mandated to facilitate the reception of refugees from Indonesia, to
establish the truth about politically motivated violence during Portu-
guese decolonization and the Indonesian occupation, and to reintegrate
low level offenders into their communities (Burgess, 2004; CAVR,
2005). The CAVR was a blend of Timorese and international efforts at
reconciliation; the seven commissioners were Timorese, yet many of the
key staff were international, and the funding came mainly from the UN
and European governments (Nevins, 2005; Philpott, 2006).
The CAVR conducted investigations, held public hearings, took
statements, and conducted research studies. The CAVR held 52 hearings
across all districts and collected over 7,000 statements from victims.
Three day healing workshops were conducted for hundreds of victims,
where small sums were distributed as symbolic reparations. The CAVR
held thematic public hearings in the capital with participation of political
leaders, including one on women’s rights and another on political pri-
soners (CAVR, 2005). Timorese survivors had the opportunity to tell
130 Restorative Justice Across the East and the West

their story by testifying at a public hearing or giving a statement.


Through eliciting these narratives, the CAVR sought to fulfill the re-
storative justice principle of restoring human dignity to the victims
(Nevins, 2005).
The statements were analyzed in conjunction with a Public Grave-
yard Census and a Retrospective Mortality Survey, produ-cing estimates
of human rights violations that were disclosed in the final report. These
estimates provided statistical evidence of the massacres, rapes, torture,
forced famine, and displacements that claimed roughly one third of the
Timorese population during the occupation, and revealed patterns of
Indonesian military abuses. The final report was not made public until
February 2006; for fear that the content would upset Indonesia (CAVR,
2005; Daly and Sarkin, 2007; Kingston, 2006).
The main CAVR reconciliation initiative was the Community Re-
conciliation Process (CRP) (CAVR, 2005). The CRP fused the legal
principles of the new state with traditional customary practices, invol-
ving direct participation of local leaders, perpetrators, victims, commu-
nity members, and the courts. Extensive community consultations re-
vealed the desire to incorporate traditional forms of conflict resolution
with the formal criminal justice system. The traditional system was
effective for dealing with conflicts within daily village life and not suf-
ficient for the gravity and scale of crimes committed in 1999. Conver-
sely, the formal legal system was too strict to meet the needs of indivi-
dual communities.
A compromise that built on the strengths of both systems resulted
in the CRP, a village based, participatory process that combined indi-
genous justice mechanisms with criminal law. The goal was to safely
reintegrate perpetrators into their communities, militate against impunity,
settle residual anger from the political conflict, and to prevent renewed
violence. The CRP was a pragmatic solution to the problems of an over-
taxed and limited nascent judiciary, and to be cheaper, faster, and closer
to the community that the formal criminal justice system (Babo-Soares,
2004; Burgess, 2004; Ximenes, 2004; CAVR, 2005).
Community Reconciliation and Restorative Justice in Timor Leste 131

Cultural Context of Traditional Justice in Timor Leste


The CRP drew upon the rich and ancient cultural tradition of customary
law, or lisan which includes the indigenous conflict resolution practice
of nahe biti. This practice of healing past mistakes is deeply ingrained in
the Timorese culture and worldview of a united past and future (CAVR,
2005; Babo-Soares, 2004; Hohe and Nixon, 2003). Traditional methods
were the only reliable means for resolving disputes during the Portu-
guese and Indonesian occupations, as legal systems were viewed as a
form of colonial oppression. Nahe biti refers to a space where social
order is maintained by settling family and community issues. The dispu-
ting parties, their families, and other community members participate in
a ceremony adjudicated by elders, known as lia nain, or men of spiritual
and customary law. The ceremony takes place over an outstretched mat,
or biti, giving rise to the name of nahe biti boot, or “spreading the large
mat” (CAVR, 2005). The palm leaves woven in the biti represent the
conflicting views that must be brought together, and how differences
can be mended without leaving gaps (Babo-Soares, 2004).
The CAVR built upon the prevalent social values embedded in
nahe biti just as the South African TRC drew upon the African cultural
concept of ubuntu or “humanity through others.” The CRP’s approach to
justice is based on the individual’s sense of self as part of a greater
whole that extends beyond the family group, exerting a strong moti-
vation for people to reconcile (Babo-Soares, 2004; CAVR, 2005; Hohe
and Nixon, 2003). The conflict resolution process of reaching agree-
ments and determining sanctions considers the relationships between
families; while the CPR focuses upon individuals, their families and
kinship groups share in the responsibility for injustice. The incorpora-
tion of lisan practices marked the CRP as a significant event for the
entire community, connecting the hearings to the spiritual life of the
village by invoking ancestors and investing community participation. In
fact, the CRP had a role in promoting lisan within the Timorese culture,
as the Indonesian military had attempted to co-opt lisan practices in
order to manipulate the population. The CRP restored the legitimacy of
lisan as a unifying force within communities (CAVR, 2005).
132 Restorative Justice Across the East and the West

Purpose of the Community Reconciliation Process (CRP)


The CRP fulfilled the CAVR mandated to enable victims, perpetrators,
and the wider community to participate in developing solutions for
reintegrating perpetrators into their communities. The CRP allowed per-
petrators to admit responsibility for their crimes, face their community,
listen to the anger and experiences of victims, and make a public apo-
logy in order to readjust to their social environments. The admission of
guilt and the public apology were required of all perpetrators participa-
ting in CPR (CAVR, 2005; Burgess, 2004; Ximenes, 2004). Perpetrators
could make “acts of reconciliation” as an alternative to punishment via
the criminal justice system. This opportunity for community dialogue
about the nature of the offenses was vital to the philosophy of reconci-
liation which recognized the healing potential of communities’ under-
standing of the political context that predisposed people to commit cri-
mes. These crimes also needed to be understood in their social context,
their damage to social relationships, and upon the fractured identity of
the social group (Burgess, 2004).
The criminal justice system was ill-equipped to address the pro-
blems of reintegration, as incarceration away from home does not
achieve acceptance and reconciliation with the perpetrator’s neighbors.
In fact, several perpetrators who were convicted and incarcerated re-
quested CRP hearings to help them return home. As a restorative justice
intervention, the CRP promoted dialogue and communication between
victims and perpetrators as a means of repairing the damaged social
fabric, which court proceedings do not permit. The focus on low level
offenders who committed less serious crimes is unique to Timor Leste:
This is a category of conflict usually overlooked by transitional justice
mechanisms that emphasize national reconciliation efforts among poli-
tical elites (Govier 2006; Burgess, 2004).

Methodology, Implementation, and Results of the Community


Reconciliation Process
Offenders voluntarily initiated the CRP by contacting the CAVR and
detailing their crimes. Then a court reviewed the cases to determine that
they did not warrant prosecution and that the offenders were not im-
Community Reconciliation and Restorative Justice in Timor Leste 133

plicated in impending cases. If the case was deemed “less-serious” and


appropriate for the CRP, it was referred back to the CAVR to administer
the hearing (Burgess, 2004; CAVR, 2005, Pigou, 2004). The CRP
hearings were overseen by a panel of community leaders comprised of a
local Catholic clergyperson, lia nain and other village elders, including
women, and were chaired by a regional commissioner of the CAVR.
Typical hearings opened with lisan rituals of traditional dancing
and drumming to summon the ancestors of the participants and whose
presence makes the agreement binding. Then the nahe biti mat was
unrolled, indicating that the disputing parties have agreed to sit together
until their conflict is resolved; it cannot be rolled up until the dispute has
been settled. Then the perpetrator was required to read a statement
making a full confession, apologizing, asking for forgiveness, and
renouncing violence for political purposes. The panel, the victims, and
the community members were allowed to ask questions, and make
comments. This was the first chance that victims had to tell their story in
public and confront the perpetrator with how their lives had been impac-
ted, to express their anger and offer their views on what perpetrators
should do for reconciliation (CAVR, 2005).
The panel then moderated a discussion to determine what ‘acts of
reconciliation’ the perpetrator should conduct to be reintegrated. These
acts were to be a demonstration of the perpetrator’s sincerity and com-
mitment to reconciliation, and not an obligation beyond their means.
Typical acts of reconciliation ranged from publicly apologizing, making
reparations to the victim (such as rebuilding a burned house or paying a
fine), or performing community service (such as cleaning a church,
repairing public buildings, or planting trees). The public apology was
the most common act of reconciliation required of perpetrators, and re-
veals the importance of the open admission of past faults and the asking
of forgiveness from those harmed to the communal life of Timorese
society. Signed reconciliation agreements, describing the crime and the
acts of reconciliation, were read aloud before being registered with the
courts. If the agreement received court approval and the perpetrator
fulfilled their tasks, they were granted immunity from civil or criminal
action (CAVR, 2005; Pigou, 2004).
134 Restorative Justice Across the East and the West

The CRP hearings were very emotional, and could last all night and
into the next day. Hearings could only be discontinued if the perpetrator
failed to answer a question, or if it became evident that a more serious
crime had been committed. Ceremonial lisan rituals such as the shared
act of chewing betel nut and drinking palm wine closed the proceedings
and signaled to the community that both sides were reconnected in a
peaceful relationship with each other (Babo-Soares, 2004). These rituals
cemented the binding agreement and restored social balance by reaccep-
ting the offender into the community (CAVR, 2005).
The CRP lasted 21 months, during which time 1,500 perpetrators
filed statements, of whom 1,371 were ultimately reintegrated in 217 hea-
rings. As a community based practice, the CRP involved an estimated
30,000 to 40,000 people. At first, perpetrators and communities were re-
luctant to participate in the unfamiliar CRP, due to confusion about the
hearings and their relationships to the CAVR and the criminal justice
system. The CAVR launched a public education and socialization pro-
cess, with local leaders encouraging local people to adopt the hearings.
They filmed one hearing to show other villages. Word of mouth proved
instrumental; as news of those that had participated in a CRP traveled
the number of willing and eager participants grew. After the CRP was
concluded, more perpetrators requested that the hearings continue. As
education and actual experience with CRP were crucial to gaining
village acceptance, the socialization process could have been initiated
earlier to counter the initial wariness and to prevent the demand that
came too late (CAVR, 2005, Pigou, 2004).
The CRP made a significant contribution to reconciliation in Ti-
mor-Leste by reintegrating perpetrators into their communities. Both
Timorese and international staff of the CAVR viewed the CRP as a
resounding success (Burgess, 2004). In follow-up interviews with par-
ticipants, 90 percent reported satisfaction with the CRP. Perpetrators and
victims indicated that the CRP contributed to the maintenance of peace
and order, settled past divisions, and ensured the stability of their com-
munities despite predictions of revenge. Participants stated that the CRP
restored dignity to both parties, and ended rumors and suspicions about
who did what during the violence by establishing the truth of the offen-
ses (CAVR, 2005; Ximenes, 2004).
Community Reconciliation and Restorative Justice in Timor Leste 135

The majority of perpetrators reported the CRP had a significant


positive effect upon their lives, helping to repair their relationships with
the community and allowing them to move freely about the village.
Victims reported an increase in social status and being more respected
within their communities after the CRP. Victims also expressed that the
CRP helped them to understand perpetrators’ motivation and the cir-
cumstances surrounding the offenses. Victims rated the perpetrators’
public admission of responsibility and apology as most important to re-
conciliation. Accordingly, reintegration was denied to some perpetra-
tors by communities when victims did not believe their apologies to be
genuine (Schlicher, 2005; CAVR, 2005).

Discussion and Implications


Critiques and Limitations of the CRP and CAVR
Despite widespread satisfaction with the CRP, some victims felt that the
perpetrators’ acts of reconciliation were not enough to restore harmony
in their communities (Nevins, 2005). The CRP may have overlooked the
needs of individual victims in favor of the needs of the community for
reconciliation (Burgess, 2004; JSMP, 2004). In some cases, the victims’
reacceptance of the perpetrators may have been influenced by the social
pressures of the larger community (Schlicher, 2005). Some critics of
TRCs have suggested that rather than achieving authentic reconciliation,
these processes encourage “confessional performances” from offenders
(Acorn, 2004; Payne, 1999). Victims also expressed a sense of injustice
with their continued poverty where perpetrators had better circumstance
(Burgess, 2004; JSMP, 2004). This criticism underscores the role of
inequality in conflict and indicates the potential contribution of social
and economic justice to conflict resolution and reconciliation efforts.
Notwithstanding its success at the village level, the CAVR has been
criticized for its limitations in the wider international context. From the
beginning, the CAVR had no jurisdiction over serious crimes, and like
the UN courts, had no jurisdiction over the bulk of the perpetrators in
Indonesia. While there was an early proposal to hold TRC hearings in
the US, Australia, and Indonesia, this was dropped due to pressure from
donor states that formerly supported Indonesia. The CAVR suffered
136 Restorative Justice Across the East and the West

throughout its operation from a lack of sufficient resources and per-


sonnel. Timorese staff complained in the early stages of the CAVR that
the international staff were domineering and failed to build local capa-
city and skill-transfers. CAVR staff also complained that the political
imperative to translate the final report into four languages (Tetun, Indo-
nesian, Portuguese, and English) diverted attention from its primary
tasks (Nevins, 2005; Philpott, 2006).
The UN Serious Crimes Unit work was likewise disadvantaged by
a lack of resources, and has not fulfilled its mission (Burgess, 2004;
Schlicher, 2005; Cohen, 2003). This failure of criminal justice nega-
tively affected the perception of the restorative justice process of the
CAVR, evidenced by this quote from a CRP participant, “I guess that
reconciliation works only with minor problems like hitting, insulting,
etc., but it can’t solve major crimes like murder—that’s the job of the
law” (Schlicher, 2005: 31). This criticism highlights what some have po-
sited as an inherent tension between retributive justice and reconciliation
(Govier, 2006; Teitel, 2000).

Current Situation in Timor Leste


In the spring of 2006, violence erupted again in Timor Leste, displacing
100,000 civilians who fled their homes after the police and military
forces collapsed. Longstanding regional, social, and political divisions
were exposed when a large portion of the military went on strike and
was dismissed by President Alkatiri. The regional conflict derived from
poorly integrated western soldiers and eastern leadership, and politically
between former independence fighters and pro-Indonesian forces.
Australian Special Forces were deployed to secure the airport and
evacuate internationals (Govier, 2006). Armed renegade police forces
are still in hiding, casting an ominous shadow over the prospects for pro-
longed peace. Observers caution that the current troubles in Timor Leste
are representative of state failure; characterized by tension between
civilian and military leadership, ethnic groups, and weak government
institutions, especially the judiciary (Chopra, 2002; Cotton, 2006). In
April 2007, Timor Leste voted in the first presidential election since
2002; while not conclusive (a runoff is scheduled) the election occurred
Community Reconciliation and Restorative Justice in Timor Leste 137

without violence and is a hopeful sign for reconciling the divided poli-
tical factions (The Economist, 2007).

Evaluating Reconciliation and Restorative Justice in Timor Leste


The recent recurrence of violence in Timor Leste has provoked ques-
tions as to the effectiveness of the CAVR at achieving reconciliation
(Govier, 2006). Truth and Reconciliation Commissions’ ability to
prevent future violence is unclear, and varies significantly from case to
case (Hayner, 2001). However, reconciliation remains a nebulous con-
cept, and can at least occur along international, national, and community
levels (Daly and Sarkin, 2007; Govier, 2006; Stover and Weinstein,
2004). If the recent violence stemmed from a failure of national
reconciliation among political and military institutions, it should not be
viewed as a failure of the CAVR which emphasized community recon-
ciliation through the CRP hearings. The lack of reconciliation at the
national level in Timor Leste may have resulted in the inadequate
settling of differences across factions that were divided by their political
associations in the struggle for independence. An open and inclusive
participatory political system that seeks to reduce inequalities between
groups within a previously oppressed population is critical to the
maintenance of peace and security; reconciliation at all levels may be
necessary for reconciliation on any level to succeed.
The successful community reconciliation work of the CAVR suf-
fers without sufficient reconciliation and justice initiatives along the
other dimensions (Hohe and Nixon, 2003). The CRP was designed to
work in tandem with legal systems that would deliver retributive justice,
yet the UN justice mission has not managed to effectively prosecute
serious crimes due to severe resource deficiencies; reconciliation also
suffers when justice is not served (Cohen, 2003; JSMP, 2004; Pigou,
2004). As the CRP balanced justice and reconciliation to reintegrate
perpetrators, international justice was not achieved when Timorese
perpetrators were prosecuted while the majority of the perpetrators,
Indonesian military officials, received de facto immunity due to the
limited jurisdiction of UN justice mechanisms (Cohen, 2003; Govier,
2006; JSMP, 2004).
138 Restorative Justice Across the East and the West

In the CRP, reconciliation and justice were linked, yet international


efforts attempt reconciliation without justice (Human Rights Watch,
2005). Timor Leste and Indonesia formed a Truth and Friendship Com-
mission which emphasized reconciliation over justice (Daly and Sarkin,
2007; Govier, 2006; Kingston, 2006). The international human rights
community has rejected the Truth and Friendship Commission, prefer-
ring to see the Indonesian military leaders on trial for war crimes (Go-
vier, 2006; Lubis, 2003; Nevins, 2005; Trotter, 2001). The government
of Timor Leste adopted a policy of forgiveness toward Indonesia, and
been criticized for neglecting to pursue meaningful justice (Human
Rights Watch, 2005; Nevins, 2005; Lubis, 2003).
This critique unfairly judges the new government’s pragmatic
approach to Timor Leste’s condition of economic dependence upon
Indonesia, and echoes criticism of the South Africa TRC’s amnesty to-
wards former apartheid officials for subverting justice in favor of a com-
promised reconciliation (Wilson, 2001). The idealism of this perspective,
while important, must be tempered with an appreciation for the muddy
realities of reconciliation in post-conflict situations. This statement
reflects the perspective that Timor Leste has made progress towards
reconciliation and restorative justice despite great odds, if primarily at
the local level.
East Timor, like other fragile new democracies, does not have the
luxury of working only with lofty theoretical ideals of justice and re-
conciliation. If the choice is to move forward then the choice is to work
in the mud—to somehow find ways to proceed, however slowly, in a
creaking under-resourced wagon, carrying the almost overwhelming
weight of complicated historical conflict saturated in highly charged,
inflammable emotion (Burgess, 2004: 158).
The negotiation of justice and reconciliation in the grassroots CRP
of the CAVR is perhaps the best of both worlds (Burgess, 2004;
Freeman, 2006). However, the debate on whether justice and recon-
ciliation are competing or complimentary goals overlooks the signifi-
cance of material social welfare. While both justice and reconciliation
contribute to social recovery after mass violence and repression, Timor
Leste’s dire conditions of mass poverty, underdevelopment, woeful
health outcomes, and high illiteracy have profound negative implica-
Community Reconciliation and Restorative Justice in Timor Leste 139

tions for its social welfare (JSMP, 2004; Pigou, 2004; WB, 2003). There
is a critical need to balance spending on transitional justice mechanisms
with interventions for social development to achieve fundamental social
change; a common complaint after the South African TRC was that
“you can’t eat reconciliation” (Abu-Nimer et al., 2001; Ntsebeza, 2000).
One CRP participant voiced this dilemma, “We talk and talk from mor-
ning to night and then come home and we are still hungry,” (JSMP,
2004: 27). The UN transitional authority cost nearly US $600 million, at
a time when donor aid and bilateral assistance to Timor Leste was only
about $260 million (Philpott, 2006). Timor Leste has seen some revenue
from oil reserves discovered in the Timor Sea which could fund social
investments, but as yet the money remains in the government treasury
(The Economist, 2007).
By acting as socio-legal interventions, often compensating for de-
veloping legal systems, TRCs don’t go far enough to promote the mater-
ial social welfare of post-conflict societies (Roht-Azziara, 2004). Along
with the documentation of human rights abuses, TRC investigations
could function as a social needs assessment, to better determine what
interventions and provisions are needed to rebuild the country. Housing,
food, health, education, employment could be assessed in light of the
aftermath of violence, and targeted with specific interventions for social
development (Cox and Pawar, 2005; Midgley, 1995). Attention to struc-
tural inequalities and the material deprivation of victims of mass vio-
lence are necessary for improving inter-group relations and contribute to
justice and reconciliation efforts (Daly and Sarkin, 2007; JSMP, 2004;
Nevins, 2005; Pigou, 2004). Restorative justice can be part of a larger
paradigm of social justice that accounts for collective responsibility, so-
cial welfare, and social change.

Conclusion
The core contribution of the CAVR to the field of restorative justice is
the Community Reconciliation Process (CRP), with its emphasis upon
victim and offender mediation and dialogue within the indigenous
conflict resolution framework of Timor Leste. The CAVR was charac-
terized by decentralization; this incorporation of grassroots elements is
140 Restorative Justice Across the East and the West

the first of its kind among TRCs, as transitional justice mechanisms


have traditionally focused on political elites (Babo-Soares, 2004). Future
TRCs and restorative justice interventions can benefit from this example
of bottom-up human rights, to ensure local ownership of social recon-
struction and reconciliation efforts, and to compliment top-down efforts
at the national level (McEvoy and Eriksson, 2006).
Social work policy and practice can likewise benefit from incor-
porating restorative justice and community based elements into interven-
tions designed to resolve conflicts and promote social harmony. The
CRP articulated several of social work’s core ethical values. The focus
upon reintegrating offenders into their communities by attending to the
social fabric highlights the importance of human relationships. The im-
plementation of the indigenous mode of conflict resolution, nahe biti,
reveals the value of cultural self-determination, especially relevant for
international social work which has been criticized for being guilty of
ethnocentric professional imperialism (Midgley, 1981). Finally, the ef-
fort to provide justice at the community level speaks to the ethic of
social justice.
Truth, reconciliation, and restorative justice do not guarantee the
future peace of Timor Leste, as the violence of May 2006 reveals.
Moreover, reconciliation is not a shortcut for social development and
reconstruction. Reconciliation and restorative justice mechanisms must
operate within a framework of interventions designed to improve the
social welfare of people overcoming violence; not just ameliorating the
consequences of violence, but transforming conflict into peaceful rela-
tionships over time and building the foundation of peaceful, just, and
prosperous societies (Lederach, 1997; Rigby, 2001). Material aid and
responsible development must parallel conflict resolution efforts to
reduce the inequalities that exacerbate social divisions. Furthermore,
TRCs, for all their popularity, require further evaluation and research to
better understand their processes, strengths and weaknesses. An en-
hanced and nuanced appreciation of community based restorative justice
interventions will lead, through the mud of social recovery, to peace and
social welfare among people affected by the horrific trauma of mass
violence.
Community Reconciliation and Restorative Justice in Timor Leste 141

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11
____________________________

Ethnic Relations in East-West


Perspective: A Case Study in
Restorative Justice
PETER SZTO

On hot summer days the beach offered needed escape from the intense
heat of New York City. Sculpting sand castles and talking about digging
to China helped pass the time. As an American-born Chinese this talk
about touching China was more than a passing fancy—it was an uncon-
scious yearning to connect with my parents’ homeland. This yearning
took on fuller meaning when I began visiting China in 1982, and heard
stories of Chinese that when they were young talked of digging to
America. This mutual desire to connect was uncanny given the vast
distance separating China from the West in terms of history, language,
values, culture and ethnic identity. This article examines the East-West
divide through the lens of ethnic diversity. The goal is to inform cul-
turally competent social work practice in international settings.
146 Restorative Justice Across the East and the West

Historical critique is central to this goal in order to cull lessons and


avoid past missteps in the advancement of social well-being.
Historical development of the notion of “race” is key to understan-
ding the rise of worldwide exploration during the 18th and 19 th centuries.
Prior to the 18th century, East-West relations were relatively benign
compared to what it was after colonialization. Life in China before the
Westerners arrived focused on domestic affairs, filial piety and enjoying
clan relations. Although the seafaring explorer Zheng He (1371-1433)
set sail for the Indian Ocean and Africa in 1405, his goal was to expand
trade and not to conquer land. Over a span of twenty-eight years and
seven expeditions, Zheng retraced already known trade routes and only
left behind Chinese porcelain and silk (Macau Museum, 2006).
Zheng’s sensibility toward “other” reflected a Confucian morality
that encouraged harmonious social relations over against conflict and
conquest. For thousands of years the Chinese believed they were the
center of the universe, self-sufficient and thus had no need to conquer
land beyond their shores—after all, anything exterior to China was
culturally inferior, barbarian and uncivilized. When European merchants
and missionaries began arriving this long held belief became radically
challenged.
The Chinese greeted the foreigners with suspicion and an air of
superiority. Conscious of the foreigners’ white color and big noses, they
asked, “What have these strange white men come here for?” (Missions
in China, 1936: 274). To the contrary, the Westerners were impressed
with what they saw in China. The Tang (618-907) and Ming (1368-1644)
dynasties had produced great literary masterworks, exquisite fine art,
imaginative public work projects, and refined an already sophisticated
Imperial bureaucracy. Even earlier, in antiquity, Confucius (551-479 BC)
had developed an ethical system that allowed for long-term stability and
a sustainable civil society. 19th century Protestant missionary, John L.
Nevius, wrote admiringly of the 5th century BC sage, “He lifted the
Chinese above the level of many other Asiatic nations by creating a
more stable social order, by inculcating respect for parents and rulers,
and by so honoring the mother that woman has a higher position in
China than in most other non-Christian lands (258).“ Foreign admiration
though was not without its own suspicious attitude and air of superiority.
Ethnic Relations in East-West Perspective 147

Merchants and missionaries believed “manifest destiny” had called them


to trade and evangelize China. They were aggressive in this cause of
accessing China’s tea, porcelain, silk and souls. The clash of civili-
zations was inevitable as the two groups were different in every imagi-
nable way except for their common humanity. Upon the arrival of the
foreigners the Chinese found it difficult to discern differences between
their personal behavior, Western culture and Christianity. For example,
was eating with a fork instead of chopsticks what individual Westerners
did, or was eating with a fork Christianity? Missionaries were not parti-
cularly helpful in distinguishing for the Chinese the nuances between
their beliefs and “from other aspects of Western civilization” (Lutz,
1965: vii). An unintended consequence of this cultural non-distinction
was that “Christian missionaries thus became mediators of Western civi-
lization in China” (vii). One wonders whether the Chinese equated eth-
nic identity with religious beliefs, or if the Westerners unconsciously did
as well? In other words, did the Chinese and Westerners equate white-
ness with Christianity?

Problem: The “Race” Construct


Given the perceptual quandary over “race,” a definition of “race” is
critical to understand how China and Western nations perceived one
another. Both groups recognized physiognomic and color differences
among humans, although the terms used to describe these differences
varied from society to society. In the 19th century Chinese lexicon the
notion of “race” was not included since it was a construct introduced
from the West. The emergence of anthropology as a distinct discipline
occurred in the 19th century and argued for “race” as a taxonomic and
biological category. French physician François Berniers (1625-1688),
Swedish naturalist Carolus Linnaeus (1707-1778) and German anthro-
pologist, Johann Friedrich Blumenbach (1752-1840) have contributed to
the development of the concept and categories of “race” to classify hu-
mans. However, it is naïve to assume that Chinese and Europeans shared
a common definition of the concept of “race.” In general, the notion of
“race” is said to be defined by biology, physical features, cultural differ-
ences and skin color—which runs counter to the biological, empirical
148 Restorative Justice Across the East and the West

fact that there is only one human “race” (that is to say, there is only one
“race” of humans today, the homo sapiens sapiens).
In this chapter, the concept of “race” is understood as “an arbitrary
socio-biological classification created by Europeans during the time of
worldwide colonial expansion, to assign human worth and social status,
using themselves as the model of humanity, for the purpose of legitimi-
zing white power and white skin privilege” (Barndt, 1991). This under-
standing recognizes the European origins of the “race” construct and its
subsequent misuse to dominate groups who were different from who
was doing the classification, with all its horrifying historical and con-
temporary outcomes.
The act of classification is an expression of power. Naming is more
than simply applying a descriptor to an object—it is the exercise of con-
trol over another and shaping of an identity. Who classified who is criti-
cal in the establishment of power and privilege in society. Unfortunately,
the history of the “race” construct involved subordination, segregation,
hatred and the oppression of individuals perceived as inferior (Fredrick-
son, 2002). Europeans not only developed the concept of “race” but
used the construct to justify their own white skin privilege.

Mediating the Problem: Restorative Justice


The philosophy of restorative justice offers analytic insight as well as
counterweight to the history of East-West ethnic disharmony. Resto-
rative justice was originally developed to mediate conflict between in-
dividuals as the result of criminal behavior. Its concern was on what
happens to the impaired relationship between two parties? Are the
injured parties permanently damaged? Can the damaged relationship be
restored? These are relevant queries and explored here regarding deve-
lopment of culturally competent social work practice in international
settings. In this chapter, the concern is whether or not restorative justice
is applicable to the mediation of conflict between nations.
According to Prison Fellowship International (PFI, 2007) “resto-
rative justice is a theory of justice that emphasizes repairing the harm
caused or revealed by criminal behavior. It is best accomplished through
cooperative processes that include all stakeholders” (www.restorative
Ethnic Relations in East-West Perspective 149

justice.org), PFI identifies three principles that undergird restorative


justice:

1. Justice requires that we work to restore those who have been injured.
2. Those most directly involved and affected by crime should have the
opportunity to participate fully in the response if they wish.
3. Government’s role is to preserve a just public order, and the com-
munity’s is to build and maintain a just peace.

In addition, four values shape the practice of restorative justice:

1. Encounter: Create opportunities for victims, offenders and commu-


nity members who want to do so to meet to discuss the crime and its
aftermath .
2. Amends: Expect offenders to take steps to repair the harm they have
Caused.
3. Reintegration: Seek to restore victims and offenders to whole, con-
tributing members of society.
4. Inclusion: Provide opportunities for parties with a stake in a specific
crime to participate in its resolution.

Restorative justice offers a unique opportunity for social workers to


deepen and broaden their understanding of ethnic relations beyond a
Western perspective. Although the original focus of restorative justice
was on the impact of criminal behavior on individuals, it is asserted here
that the approach has relevance to mediating ethnic reconciliation.
In the United States the discourse on ethnic relations has primarily
been between Blacks and Whites. Slavery, Jim Crow, the civil rights
movement and institutional “racism” have been given privileged status
over against Asian American issues (Wu, 2002). Ethnic discrimination,
however, perpetrated by and against Asians, is real but has not received
equal attention as Black-White issues. To the contrary, the Asian Ameri-
can experience has much to contribute to the discourse on ethnic rela-
tions, i.e., the Chinese Anti-Exclusion Acts, war brides, Japanese intern-
150 Restorative Justice Across the East and the West

ment, and the senseless murder of Vincent Chin, to name a few (Ava-
kian, 2002).
One strategy to include an Asian perspective in the discourse on
ethnic relations is by way of the Opium War. An international incident
in the 19th century, the Opium War involves elements pertinent to resto-
rative justice. The war was actually two separate conflicts over the
illegal smuggling of opium into China by British merchants. The First
opium war was 1839 to 1841 and the Second was 1856-1858. Opium
played a major precipitate role in both wars. The narcotic was used as a
ploy to reduce Great Britain’s trade debt with China and to subdue its
people. The Qing government disliked both British reasons and made
earnest attempts to eradicate the addictive and ruinous drug. “Race” also
played an important role in edging the two empires into battle. Ever
since Western merchants and missionaries arrived, the Chinese had
mixed feelings about foreigners being among them.
On the one hand, the Chinese considered all things foreign as cul-
turally inferior and subordinate. On the other hand, Western ideas were
recognized as uniquely different and a force to be reckoned with.
The Canton System of Trade represented China’s attempt to control
the spread of Westerners by confining them to a single location. In 1759
the Qing Emperor decreed that all foreigners could only trade and reside
near the southern port city of Guangzhou (also known as Canton). The
British resented having to submit and kowtow to Qing authorities and
schemed of alternative routes to trade. Historical exceptions to China’s
haughty attitude were the Jesuits because of their novel ideas about sci-
ence and salvation.
Arrival of the British however presented a wholly different set of
challenges. The British came with a trading aggressiveness and military
might unfamiliar to Qing rulers. In addition, the British greatly admired
China’s goods and resources, particularly Chinese porcelain, silk, tea
and spices. British merchants hoped the Middle Kingdom would privi-
lege them with free trade and mobility. China refused to open its ports to
foreigners other than at Guangzhou—setting the stage for social discord
and political duress. Today, the Opium Wars offers students of social
work important lessons for contemporary practice, especially as China
embarks on developing social work education (Beijing, 2006).
Ethnic Relations in East-West Perspective 151

The philosophy of restorative justice is also pertinent as a strategy


for ethnic reconciliation—it is congruent with social work values and it
embraces human relationships to advance social well-being.
At first glance ethnic relations and the Opium War might appear as
unrelated topics. After all, what do ethnic relations and the Opium Wars
have in common? Despite the appearance of dissimilarity, both topics
involve groups who identify themselves as “racially” superior and who
deserve special privileges and social status. Throughout its 6,000 year
history, the Chinese self-identified as the superior “race.” In Chinese,
China means “Middle Kingdom,” or center of the universe. The Chinese
believed Heaven had mandated them as special people. The Europeans
also viewed themselves as “racially” superior and destined to rule the
world. Robert Morrison (1782-1834), the first Protestant missionary to
China, exemplifies this proto-typical Western and religiously inspired
attitude, “I know that the redeemed of the Lord are to be gathered out of
every nation, every kindred and every language under heaven. I think it
is my duty to quit this country where there is abundance of laborers and
go to those countries where there are few or none” (Price, 1957). Morri-
son felt God had ordained him, and others, to spread Christianity to the
entire world. Clash between East and West was inevitable given their
motives and ethnic identity. Whatever the definition of ethnic relations
between China and the West became contentious and problematic.
The British were interested in colonizing China following a stra-
tegy that worked well in Africa, India and elsewhere—trade, colonize
and conquer. The British found out though that what worked in other
countries did not apply to China. The Chinese offered stronger resis-
tance and opposition to colonialization. To penetrate China’s thick cul-
ture and weaken its resolve, the British began smuggling opium to gain
an upper hand in the trade imbalance between China and Britain. In
1730, the British smuggled approximately 15 tons of opium, by 1773 the
figure had leapt to 75 tons. Close to 10 percent of the Chinese popula-
tion had become addicted to opium.
China was a proud nation and losing the Opium Wars instilled deep
national humiliation and shame. A civilization that for 6,000 years pri-
ded itself on cultural continuity, ingenuity, knowledge, and ethics, was
now forced to concede defeat to a much smaller and younger nation—on
152 Restorative Justice Across the East and the West

the other side of the world no less. The Treaty of Nanking in 1842 ended
the first Opium War forcing China to open five treaty ports to foreign
trade—Ningbo, Fuzhou, Guangzhou, Amoy, and Shanghai. China was
also forced to concede large areas of these cities as foreign concessions
with extra-territorial rights. The policy exempted foreign subjects from
Chinese law even though they were staying in China. By the late 19th
century at least 80 treaty ports were conceded to foreign nations, inclu-
ding the entire island of Hong Kong to the British.

Towards Restorative Justice: A Travel Course


A viable remedy for East-West ethnic disharmony is restorative justice.
Making amends, seeking reintegration and promoting inclusion through
cross-ethnic encounters are worthwhile pursuits. Travel to China pro-
vided such opportunities for students to experience and think differently
about ethnic relations. Encountering “the other,” in particular, helps
expand cultural horizons and understanding through direct engagement.
The idea for a travel course transpired during my first visit to China
in 1982, when my father took my younger sister, older brother and me to
his home village in South China. Hoi-Ping is a remote village nestled
among plush rice paddies, grassy hills and agrarian culture. The visit
was historic in how it opened for me a new way of seeing the world and
my role in it. I call the experience an ethnic-awakening because my
sensibility of things Chinese came into sharper focus. Being with
relatives and mingling with China’s masses increased my awareness of
my parents’ culture. Overall, the experience instilled a desire to under-
stand Chinese history, culture and ethnic relations in personal terms.
Particularly as an American-born Chinese, what W.E.B. Du Bois termed
“double consciousness” took on profound significance in describing my
dual commitments to things American and things Chinese. I was very
motivated to understand this duality in the context of an East-West
framework.
In the summer of 2004, I piloted a travel course to China. The
itinerary included visits to Guangzhou, Macau, Hong Kong, Xiamen and
Shanghai. The purpose was to see first-hand China’s colonial architect-
ture, gather information on local history and identify contacts in the de-
Ethnic Relations in East-West Perspective 153

velopment of the course. The course description for Ethnic Relations in


East-West Perspective was as follows:
This course critically analyzes the construct of “race” from a cross-
cultural and socio-historical perspective. Chinese and American views
of “race” will be examined using the First Opium War (1839-1842) to
frame understanding of Sino-Western attitudes towards ethnic relations
and colonization.
In addition to on-campus seminars, the class travels to South China
for two weeks to analyze colonial architecture in Hong Kong, Macau,
Canton (Guangzhou) and Shanghai. Students visit schools, social wel-
fare institutions, commercial districts, and religious sites to reflect on
contemporary Sino-American ethnic relations. The class also spends
three days in Beijing visiting historical sites. A reflection journal and a
course paper are required.
The course goal was to gain a deeper understanding of ethnic rela-
tions through travel and East-West comparative analysis. The expected
learning outcome was to subvert stereotype images of Chinese, analyze
China’s history of global isolation, and to evaluate how the Chinese
have historically responded to foreigners.
The first travel course was implanted in summer 2005 with five
graduate social work students and one undergraduate communications
major. Six students was an ideal number because of the intimacy and
flexibility it promoted. In summer 2006, three undergraduates, one
graduate student in public administration, and five non-student guests
took the course. The second group had one undergraduate social work
student. The 2005 and 2006 participants were both cohesive groups that
traveled and learned well together. The spirit of learning was high,
creating a positive atmosphere to deepen self-understanding in relation-
ship to others. The students’ major writing assignment bore out the
students’ learning and personal integration as a result of this travel
course.
The course involved six learning objectives designed to link semi-
nar readings and class discussions with travel experiences. The object-
tives were to:
154 Restorative Justice Across the East and the West

1. Explain the historical development of the construct of “race” from


an American and Chinese perspective.
2. Use historical examples to illustrate Sino-Western attitudes towards
the “race” construct.
3. Demonstrate increased personal awareness as to the effects of global
“racism.”
4. Identify the differential impact of “racism” on international social
work practice.
5. Explain the role of social work practice to dismantle institutional
“racism.”

The objectives sought through use of travel experiences challenge


preconceived notions about ethnic relations. Learning confined to the
classroom and ideas abstracted from cultural context limits understand-
ding to merely an intellectual activity. The advantage of this travel
course is that it combines intellectual inquiry with field experiences.
Before traveling to China, on-campus seminars were held to critically
examine the causes and consequences of the Opium War in relation to
emergence of the “race” construct. The seminars were essential for stu-
dents to grapple with course concepts, because once in China, the travel
is intense and does not allow for reflective analysis. In China, the
learning continued by building not only on seminar teachings but also
around meals, cab rides, train travel, museum visits, and the unpredicta-
bility of travel. Ad hoc conversations often offered optimum learning in
that they were intimate and motivated by curiosity in response to
historical sites or real situations. The syllabus describes learning as:
The course uses historic/analytic methods to explore, explain, and
critique the “race” construct from an East-West perspective. An adult
model of learning will be used to deepen understanding and analysis.
Since this is a travel study course learning centers on the use of your
five senses—seeing, hearing, tasting, touching and smelling. Our time in
China is organized around informal conversations, activities, critical
thinking, and group reflection on what we experience. Formal instruct-
tion will take place before leaving for China to provide basic informa-
tion on the Opium Wars, colonization and Sino-Western relations.
Ethnic Relations in East-West Perspective 155

The purpose of travel to China was to experience as directly as


possible the history of the Opium Wars, late-19th century colonial archi-
tecture and indigenous Chinese culture. On both occasions, the travel
course did challenge and deepen the students’ understanding of ethnic
relations. One student summarized her feelings this way:
Though we are given hours of cultural competency in trainings,
classes and books, not many people can truly identify with what it feels
like because of a personal experience. Being able to relate in that way
will build bridges in working with minorities. Another student wrote:

The preparation for this trip was methodical and stressful. Every effort
was made to prepare the travelers for the pending culture shock;
assigned readings helped assure that a cognitive base existed prior to
departure. Group meetings outlined the sights and sounds that awaited
our arrival and there was a review of essential language and signs. It
proved to be much easier to prepare for the trip than to properly
prepare for the overwhelming differences that would challenge our
westernized comfort level.

To deepen understanding of the Opium Wars and the “race” con-


struct we visited Humen—the site where Chinese dumped British East
India Trading Company opium into the Pearl River. Humen is a small
town located on the outskirts of Guangzhou and is key passage point
from ocean to inland. The British were outraged at what the Chinese did
with their illegal cargo and immediately demanded reparation. The Chi-
nese rebuffed British demands prompting Britain to declare war on
China. The central government built an Opium War museum at Humen
that houses artifacts and educational displays on the illicit opium trade.
The museum was an invaluable teaching tool for students to learn about
the devastating and deadly effects of opium addiction. Most interesting,
the exhibits explained events surrounding the opium war from a distinct-
ly Chinese perspective, e.g., how despicable and depraved were the Bri-
tish imperialists.
Students also saw for themselves American, British, French, Ger-
man and Portuguese colonial architecture. Under rules of the unequal
treaties and policy of extra-territoriality, foreigners were permitted to
construct buildings in China. They built banks, consulates, custom hou-
156 Restorative Justice Across the East and the West

ses, factories, hospitals, orphanages, and schools all over China. Many
of these structures still stand providing students with striking physical
evidence of Western semi-colonial rule in China. The course interpreted
these structures as symbols of past Western aggression and imperialism.
To appreciate what it took to build these structures in a foreign land,
imagine rows of Chinese pagodas lining Fifth Avenue in New York City,
or Hollywood Boulevard in Los Angeles—would not one ask how
pagodas got there and who built them? The same holds true for out-of-
place Western-style buildings on Chinese soil. Walking along the Bund
in Shanghai, or leafy Shamian Island in Guangzhou, one is struck by the
juxtaposition of Western architecture in China. One student observed:
The Opium war and the saga of Colonization are two key subjects
that continue to influence the nation’s history and its people … What
this trip demonstrated was a new version of oppression; a revelation that
it has very little to do with the present and very much to do with the
legacy of the past. The infrastructure that supports “racism” and cultural
disparity is as solid and durable as Egyptian pyramids … Of particular
note was the observation that “racism” seems to originate from the out-
side, introduced and imposed by foreigners; however, it is perpetuated
and solidified from the inside once the seed is planted.
The major writing assignment for the course was an 8 to 10 page
analysis on ethnic relations based on student travel experiences in China.
The writing guidelines were:

1. Compare Chinese and American notions of “race” using the Opium


War to frame your analysis.
2. Focus on a particular aspect of the Opium War the class visited to
critique the problem of the “race” construct.
3. Include in your discussion recommendations for practicing social
work in an international context.

Without exception, studying the Opium War challenged each student’s


assumptions, stereotypes and biases regarding ethnic relations. The tra-
vel course also challenged students to re-evaluate how to achieve ethnic
reconciliation. One student wrote:
Ethnic Relations in East-West Perspective 157

“After studying the Opium War, I can see how different groups of
people have gone to extraordinary lengths to achieve the power and
privilege which they felt is owed to them … We can learn from the
history of the Opium War, and in the future we must let go of the
beliefs of superiority and inferiority based on an individual’s skin
color … Looking back I realize that I learned more about myself as an
individual than I had expected … Overall it felt like the Chinese
people thought that I was better than they were, and I really disliked
that feeling. I think this was the most upsetting realization that I had
during our trip to China. I do not want to make a person feel inferior to
me because of my ethnic background or county of origin, and I do not
want to accept privileges or respect because of it either.”

Whatever image, belief or understanding students held about ethnic


relations prior to the travel course, their attitudes and assumptions
changed as a result of being in China. Ideas and images about China
generated by the Western media were by and large found untrue:
It’s funny that we went to China with an idea of how they lived
(and it was totally wrong) and they thought that we lived lives similar to
those of the characters off of sitcoms like “Friends” or “Sex and the City.
One student confessed:

“I admit that prior to the trip the information that I knew about China
and about the Chinese people was very limited and was mostly from
movies and friends.”

Another made the astute observation: Most importantly, the more


time we spent in China, the more the similarities of these two cultures
became apparent as opposed to these differences. Engaging in conver-
sation with Chinese social worker students, their hopes and future as-
pirations were similar to my own, and social work was not a well-known
entity in their communities, such as in the United States.
During conversation with these social work students, we became
aware of our narrow perspectives of each other’s lives. They asked if we
lived like the women on the sitcom Friends, and we asked if they
studied all the time and had no occasions for socialization. Together we
158 Restorative Justice Across the East and the West

understood that our lives were similar, taking on functions at school,


home, family, and as friends.
In hindsight, the above comments are less about naiveté regarding
Chinese culture, but rather a desire to think and act differently about eth-
nic relations.

Restoring the Harm Through Everyday Encounters


Everyday encounters with local Chinese were encouraged as a way to
experience cross-cultural engagement. In addition to visiting colonial
architecture sites and historical museums about the Opium War in
Guangzhou, Macau, Hong Kong and Shanghai, students had ample
opportunity to engage local folk. Although the students did not speak
Chinese, except for one male undergraduate in summer 2005, they all
learned the value of non-verbal communication, e.g., hand gestures,
smiling, silence, and broken-English/Chinese. The students found the
Chinese magnanimous, gracious and their encounters cherishable lear-
ning experiences. They were curious to learn about everyday life, family
relations, schooling and future ambitions of the Chinese. A similar
curiosity was true for the Chinese about mundane life in America. This
shared curiosity about each other provided for mutual exchange and
cross-cultural encounter. Interestingly, shopping became a frequent and
convenient opportunity for interaction. Bargaining and haggling over
sale prices is not only part of Chinese culture, but the exchange forces
one to socially engage the other to get a better deal. Of the many en-
counters we experienced in the various cities, one in particular took on
special meaning in relation to restorative justice. The interaction invol-
ved the relationship with our Shanghai tour guide—Mr. W.
Mr. W. was our local Shanghai travel guide in 2005 and 2006. For
both groups, he somehow became hero and emblem of restorative jus-
tice. Mild-mannered, affable, and healthy in his late 50s, Mr. W. began
as a tour-guide but evolved into friend. Everyday for three days he
arrived early on his Flying Dragon bicycle. A part-time English-tutor
when he was not with us, he played host and historian for us on our
forays around Shanghai. Walking, eating and lounging, he impressed the
Ethnic Relations in East-West Perspective 159

students with his personal stories of survival and sacrifice. In a natural


way, the students developed a genuine affection for Mr. W.:
Meeting Mr. W. was maybe the most important thing that I did on
this trip. It was the one experience that affected me to thee point of tears.
The experiences he shared about his life and seeing him in action was a
wonderful opportunity because it gave me reason to have some self-
reflection … I was impressed by the quiet power of this man and was
amazed with his courage and his genuineness in all aspects of his life.
Despite living an extremely harsh life and being victim of unfor-
tunate circumstances, Mr. W. appeared content and humble whether
peddling his bike around Shanghai or opening his life to us. One eve-
ning in 2005, he privileged our group by inviting us to his one bedroom
apartment. To get there we followed him through seemingly endless
twists and turns. Finally, and after climbing four flights of stairs in the
dark, we arrived. It took a few awkward moments before we found
places to sit amidst his earthly possessions. The room was small, box-
like, and cluttered with odds and ends—a tarnished cracked mirror,
worn wooden floors, ragged chairs—everything was worn and faded.
The students had fallen strangely silent, taking in the room with their
senses and reacting quietly to his space. It gradually dawned on us that
although friends for two full days, we were yet strangers sitting on his
soft bed. Suddenly, being together slowly brought tears to students’ eyes
as he served us tea and shared family photos. Apparently, the guilt and
sense of awe felt by the group was a special moment of justice restored.
He felt the kindness of us strangers, and we felt his alienation and
suffering. The empathic moment seemed to heal Mr. W.’s sense of mar-
ginalization and gave students the experience of encounter, making
amends, reintegration and inclusion. In that magic encounter the group
and Mr. W. experienced restored relationship. To this day we continue
to email and hope for future reunions.
Finally, the more Mr. W. shared stories about life as a peasant, the
more the students learned how 80 percent of China’s population lived.
The more they heard stories of the common person, the more cognizant
they became of their own privileged status as white Americans. To their
surprise, white skin privilege was also a fact of life in China. On several
160 Restorative Justice Across the East and the West

occasions female students in 2005 and 2006 had the following similar
experience:
In a city the size of Guangzhou, I would have thought that the
population would be used to seeing “foreigners,” especially with such a
British presence throughout the country. Nonetheless, wherever we went,
we were always asked to be in pictures with families or individuals, and
I’m even in some home videos. Eventually, one of the girls had enough
courage to ask me what time it was. After telling her the time, she turned
to walk away and then turned to face me again. It was apparent that she
was hesitant about what she wanted to say, but the moment got the best
of her. She smiled as she told me that my skin looked soft. This struck
me as amusing since to me, Americans perceive the complexion of
Asians as something close to perfect. But to this little girl, my fair
complexion was worth finding the courage to talk to a stranger. After
telling the little girl thanks, she ran off to meet her friends. They strag-
gled behind me most of the way, and when they realized my group was
leaving, they made sure to come over to me and tell me that it was nice
meeting me.

Conclusion
One need not dig by hand all the way to China to have a cross-cultural
encounter. Fortunately, modern day travel quickens face-to-face experi-
ences to advance learning. The primary benefit of a travel course to
China is the experience of relationships.
The relationships gained in China taught students how the “race”
construct functions in society, historical consequences of the Opium
War, and the value of restorative justice to heal broken relationships.
These are important qualities to possess in order to effectively practice
social work in an international setting. Moreover, genuine cross-cultural
encounter requires an open heart and mind. An open heart respects
human dignity and differences. An open mind is intellectually honest
about any differences, especially if it involves historical wrongs. A
critical analysis of Sino-Western history and willingness to look beyond
oneself are also are requisites to advance restorative justice. These qua-
lities were present among the two student groups enabling them to
Ethnic Relations in East-West Perspective 161

achieve course learning objectives. One student summarized her lear-


ning this way:
The preparation for this trip was methodical and stressful. Every
effort was made to prepare the travelers for the pending culture shock;
assigned readings helped assure that a cognitive base existed prior to
departure. Group meetings outlined the sights and sounds that awaited
our arrival and there was a review of essential language and signs. It
proved to be much easier to prepare for the trip than to properly prepare
for the overwhelming differences that would challenge our westernized
comfort level. Opinions and beliefs have been shaped from the media
and its portrayal of Asian people, primarily women as submissive and
men as kung-fu fighters. When friends learned China was the desti-
nation several people interjected their beliefs and biases. It was sur-
prising that a majority expressed some form of discontent for the culture.
What a thrill to return with personal stories and experiences that con-
tradict them all!

REFERENCES
Avakian, M. (2002), Atlas of Asian American History, Checkmark: New York.
Barndt, J. (1991), Dismantling “Racism:” The Continuing Challenge to White
America, Augsburg: Minneapolis, MN.
Fredrickson, G. M. (2002), “Racism:” A Short History, Princeton University
Press: Princeton, NJ.
Macau Museum (2006), East Meets West: Cultural Relics from the Pearl River
Delta Region, Macau Museum: Macau.
Lutz, J.G. (1965), Christian Missions in China, Evangelists of What?, D.C.
Heath: Boston, MA.
Prison Fellowship International, PFI (2007), www.restorativejustice.org.
Price, F.W. (1957), 150 Years of Protestant Christianity in China. Missionary
Research Library. Division of Foreign Missions, NCCC/USA, Far Eastern
Office, China Committee.
Missions in China (1936), Philadelphia: Presbyterian Historical Archives: Phi-
ladelphia, PA.
Wu, F.H. (2002), Yellow: “Race” in America Beyond Black and White, Basic:
New York.
12
____________________________

Restorative Justice in International


Relations: A Gandhian Approach
in the Post-Colonial Era
VANMALA HIRANANDANI

Restorative justice has gained much popularity in recent decades as an


alternative to the retribution approaches of the criminal justice system.
Most existing literature on restorative justice focuses on the deve-
lopment and implementation of its philosophy and practice in domestic
criminal justice systems within Western countries. 1 In contrast, the
theory of restorative justice in the realm of international affairs remains
embryonic at the very best (Roche, 2006). While developments in the
arena of transitional justice, such as truth and reconciliation commis-
sions in South Africa and Chile, suggest that restorative values are being
embraced in global affairs, overall the concept remains an under-ex-
plored in international relations. Following a discussion of the funda-
mental principles and practices of restorative justice, this chapter will
survey the evolving paradigms in international justice and consider the
164 Restorative Justice Across the East and the West

strengths and limitations of restorative justice in global affairs. This will


be followed by a discussion on the relevance of Gandhi’s teachings to
advance the concept of restorative justice particularly in the context of
inter-state relations.
Applying Gandhian approach to restorative justice aims to trans-
form existing power relations between Western and non-Western coun-
tries as well as a rethinking of fundamental notions of justice, peace,
democracy, nation-state, violence, crime, etc.
This approach necessarily exhorts powerful countries toward intro-
spection concerning the historical and contemporary ethos of structural
violence, “racism,” economic exploitation, as well as military aggres-
sion that have largely characterized their policies towards non-Western
countries.
The chapter underscores that recent discussions on reparations are
important but inadequate given continued economic exploitation of coun-
tries in Africa, Asia, and Latin America. Although this discussion is in
the context of interstate affairs, it is contended that Gandhi’s thinking
exhorts us to rethink some of the underpinnings of restorative justice in
the intra-state context as well.

Defining Restorative Justice


Over the past 25 years, restorative justice has emerged as an exemplar
that challenges the assumptions of Western criminal justice systems that
have been characterized by a retributive approach towards offenders.
Despite the increasing popularity of restorative practices as a viable
alternative paradigm of justice for non-severe offences, there is no
consensus about the theory or definition of restorative justice (Bazemore
and Walgrave, 1999; Roach, 2006).
Nonetheless, there is generally an agreement that the underlying
values of restorative justice include respect, inclusion, democracy, re-
sponsibility, honesty, humility, inter-connectedness, reparation, healing,
and empowerment (Boyack et al., 2004).
The most prominent definition of restorative justice is by Tony
Marshall, who defined restorative justice as “a process whereby all the
Restorative Justice in International Relations: A Gandhian Approach 165

parties with a stake in a particular offense come together to resolve col-


lectively how to deal with the aftermath of the offense and its impli-
cations for the future” (Marshall, 1999: 5).
Proponents of restorative justice espouse that the thrust of a justice
system should not be to punish the offender but rather to meet the needs
of the victim and to ensure that the offenders are made aware of the
damage they have caused and their liability to repair the harm (John-
stone, 2002). As Braithwaite (1999: 6) writes, restorative criminal jus-
tice is about “healing rather than hurting, moral learning, community
participation and community caring, respectful dialogue, forgiveness,
responsibility, apology and making amends.” Restorative justice is, thus,
primarily oriented towards repairing the harm caused by the crime. To
this end, formal prosecution and standard procedures of trial and punish-
ment based on punitive and exclusionary philosophies are seen to be in-
adequate as they neither heal the victim nor reintegrate the offender into
the community (Ashworth, 2002; Bazemore and Walgrave, 1999; Braith-
waite, 2000).
The chief difference between the dominant retributive system of
justice and the restorative perspective is that while the former approach
views crimes as violations committed against the state, the latter recog-
nizes that crime affects individual and community relationships (Um-
breit, 1999). As such, those who believe that reforms in the criminal
justice system are long overdue, therefore, espouse restorative justice,
which is based on the recognition of the personal dimension of crime
that demands a personal approach to address the aftermath of crime
(Zehr, 1990). In contrast to the dominant retributive justice model that
focuses on written laws, blame and punishment, restorative justice em-
phasizes the needs of victims, harms suffered by them, and obligations
of offenders (Toews and Zehr, 2003). Instead of legal professionals,
such as lawyers and judges prosecuting and sentencing the offender,
restorative justice elicits the active participation of victims, offenders
and community members in sharing their experiences and deciding a
course of resolution through dialogue and negotiations. The informal,
non-adjudicative methods of restorative justice “give[s] victims, offen-
ders and the community a central role in decisionmaking” (Corrado et
al., 2003: 3).
166 Restorative Justice Across the East and the West

The most common forms of restorative justice include victim-


offender mediation, a family group conference, a circle modeled on
Native American tradition, and a sentencing panel (Roche, 2006). The
focus of these forms of intervention is to “hold offenders accountable by
making them aware of the impact their offending has had on their
victims” (Corrado et al., 2003: 4). A general feature of all these metho-
dologies is a face-to-face meeting between the victim and offender in
the presence of a trained mediator in a safe environment. Most resto-
rative programs bring together the offender, his or her victims, and the
families and friends of victims and offenders in a “healing circle” to
discuss the aftermath of an offence and to discuss various measures to
repair the harm caused by the offender (Braithwaite, 2000; Johnstone,
2002).
Professionals are involved in the process as facilitators with the
goal of assisting constructive dialogue toward a mutually agreeable
resolution, rather than dictating the terms of mediation or imposing
sentences (Ashworth, 2002; Johnstone, 2002). Victims are urged to
describe the material and psychological impact of the crime. The per-
sonal meeting and facing the victim and their families directly are
believed to lead most offenders into accepting responsibility for their
behavior. Subsequently, all parties arrive at an agreement about the
nature and the amount of reparation, which usually includes an apology.
The facilitator also seeks assurances from the offender that the behavior
will not be repeated (Johnstone, 2002). Restorative justice, thereby, is
seen as empowering those who are usually silenced in the formal justice
process by giving them the power to create meaning about the event that
they have experienced as well as the power to determine justice (Toews
and Zehr, 2003).
Additionally, proponents of restorative justice believe that offen-
ders will be rendered less dangerous as attempts are made to reconcile
the offenders with their communities. The essence of restorative justice
is, thus, to restore all stakeholders, including victims, offenders, and
their communities (Ashworth, 2002; Braithwaite, 2000). The restorative
justice approach has been used mainly in cases of youth crime, child
abuse and neglect, and minor offences, rather than in violent crime
situations. Corrado, Cohen and Odgers (2003) point out that the gravity
Restorative Justice in International Relations: A Gandhian Approach 167

of the offense as well as the criminal history of the offender are general-
ly the most decisive factors in determining who is a suitable candidate
for restorative justice. Violent offenders usually require special consi-
deration with respect to restorative justice programs.
Although most contemporary restorative justice literature is written
in the advanced industrial Western context, this approach to conflict-
resolution is not new: its genesis can be traced to pre-colonial societies,
such as the Maori in New Zealand and Native Indian cultures in the US
and Canada, in which restoration of peace in the community was the
primary concern as opposed to the punishment of the offender (Van
Ness, 2007; Weitekamp, 1999; Weitekamp and Kerner, 2003). Furthe-
rmore, global developments in international law, responses to mass
crimes, and justice in transitional societies have been neglected in main-
stream restorative justice literature that has been mainly focused on the
recent expansion of intra-state restorative justice programs within Wes-
tern countries. This chapter is an attempt to bridge the aforementioned
gap.

Restorative Justice in World Affairs


It is plausible that the lack of scholarly attention to restorative justice in
inter-state contexts emanates from the fact that, in contrast to domestic
political theory, conceptualizations of global justice are in the early
phases of formation. Modern criminal justice processes have developed
within the limited context of the nation-state and associated notions of
penal sovereignty, accountability and social control (Henham, 2004).
Establishing universal ideals of relationships between states and their
citizens using existing paradigms of domestic criminal justice is pro-
blematic. Besides, recent trends in global capitalism have resulted in
gross injustices for the masses of the global South by exacerbating
poverty, income inequality, and structural violence.1 Consequently, the
vision for justice on a world scale is still hazy leading to uncertainties as
to how international or global institutions must function (Nagel, 2005).
The concept of global justice can encompass anything from cri-
minal law to the market economy. For instance, Nagel (2005) offers a
broad understanding of international justice to include standards gover-
168 Restorative Justice Across the East and the West

ning the justification and conduct of wars and standards that define the
most basic human rights. Standards pertaining to both these strands of
justice have attained a measure of universal recognition over the past 50
years. After World War II, the Nuremberg and Tokyo tribunals were
established to prosecute major war criminals. Despite a number of legal
failings, 2 Nuremberg and Tokyo trials have been viewed as moving
beyond “victor’s justice” which was crucial to addressing the sorrow of
Holocaust victims and helping to remove the collective guilt from the
two nations (Chomsky et al., 2002; Popovski, 2000). The Nuremberg
principles—most notably, the principle of individual accountability that
maintains crimes are committed by individuals, not by abstract entities,
and that only by punishing those who commit such crimes can interna-
tional law be enforced—were consequently developed into instruments
of universal law, such as the 1948 Genocide Convention, the 1949
Geneva Conventions, and the 1977 Additional Protocols.
With the birth of the United Nations after World War II, new in-
struments to promote peace and human rights were formulated. For the
first time, human values shared by many political, cultural, and religious
traditions were brought together. The most important document in this
regard is the 1948 Universal Declaration of Human Rights that put forth
the basic rules and freedoms for all peoples without discrimination.
Human rights include civil and political rights (such as the right to life,
liberty, security, freedom from torture, prohibition of slavery, right to
vote, and right to fair trial) and socio-economic and cultural rights (such
as right to an adequate standard of living, right to education, right to
health, the right to work, right to social security, right to join a labor
union, and right to practice one’s cultural and religious beliefs etc). 3
Human rights are seen as universal rights, the denial of which sows the
seeds of violence and conflict within and between societies and nations.
While there are no legal mechanisms to enforce the Declaration,
states that ratify it are supposed to adopt measures to ensure that the
treaty is implemented on the national level, and to make themselves
available to be scrutinized by the international community. The ideal of
universal human rights does not replace domestic protection of indivi-
duals; rather the attempt is to make the attainment of human rights more
effective within national systems. While these instruments and prince-
Restorative Justice in International Relations: A Gandhian Approach 169

ples address various dimensions of conduct, usually by states towards


other states or towards individuals or religious/ethnic/racial groups with-
in their boundaries, as the ensuing discussion suggests, most literature
on justice in global affairs has concentrated mainly on international cri-
minal justice, neglecting issues of socio-economic justice between and
within states.
While the Nuremberg and Tokyo trials were of key significance in
the development of international humanitarian law, they failed to re-
strain the human capacity to commit heinous crimes (Villa-Cicencio,
2000). Vinjamuri and Snyder (2004) point out that war crimes became a
scholarly preoccupation for international lawyers and historians after the
Nuremberg and Tokyo trials. More recently, genocides and crimes
against humanity in former Yugoslavia, Rwanda, Chile, apartheid South
Africa, Sierra Leone, East Timor and elsewhere have led to an increase
in the scholarship on atrocities and transitional justice most notably in
political science, international relations, philosophy, and sociology (Call,
2004; Vinjamuri and Snyder, 2004). In its broadest sense, transitional
justice refers to “how societies ‘transitioning’ from repressive rule or
armed conflict deal with past atrocities, how they overcome social di-
visions or seek ‘reconciliation’ and how they create justice systems so as
to prevent future human rights atrocities” (Call, 2004: 101).
The question of how amends must be made in response to massive
violence and human rights violations committed either by state actors or
others with the consent and tolerance of their governments has per-
plexed many advocates of human rights. A survey of the literature sug-
gests the two broad paradigms of retributive and restorative justice
familiar to domestic criminal justice systems have prevailed in interna-
tional criminal justice as well. The retributive paradigm advanced main-
ly by legalist scholars argues in favor of trials for war crimes, crimes
against humanity, genocide, and torture (Vinjamuri and Snyder, 2004).
The past decade, e.g., has witnessed the creation of international
tribunals for the former Yugoslavia and for Rwanda, a powerful Interna-
tional Criminal Court (ICC), national/international “hybrid” courts re-
cently erected to prosecute top human rights abusers, and the application
of universal jurisdiction to try former heads of state outside of their
home countries (Call, 2004).
170 Restorative Justice Across the East and the West

International tribunals gained popularity in the 1990s when the


United Nations created the ad hoc International Criminal Tribunals for
the former Yugoslavia (ICTY) and for Rwanda (ICTR) that drew on the
antecedents set in Nuremberg Tokyo after World War II (Call, 2004;
Mendez, 2001; Snyder and Vinjamuri, 2004). In 1998, at a specially
convened United Nations Diplomatic Conference, the statute for the
establishment of the International Criminal Court (ICC) was adopted.
The International Criminal Court became effective in 2002 with 104
countries ratifying its statute as of 2006 (Human Rights Watch, 2007).
While the ICTY and ICTR are tribunals for genocides and crimes
against humanity specifically in Yugoslavia and Rwanda respectively,
the ICC has broader jurisdiction over crimes against humanity, genocide
and war crimes committed in any part of the world. The ICC differs
from the earlier International Court of Justice (ICJ) in the Hague as,
unlike the ICJ that can settle disputes only among nations, the ICC has
jurisdiction over individuals as well (Johnson, 2000; Popovski, 2000).
Thus, efforts to bring war criminals to trial, which today require speci-
ally constituted UN tribunals, will be much easier with the ICC. Also,
the ICC adopts procedures that apply uniformly and fairly to states
rather than relegating the formation of tribunals entirely to an unrepre-
sentative UN Security Council (Call, 2004).
Many advocates of human rights have lauded the establishment of
international tribunals and the permanent ICC as extraordinary develop-
ments in international law because they eschew the granting of blanket
amnesties and de facto impunity and represent a turn towards policies of
holding high-ranking public officials and leaders accountable for their
actions (cf for example, Call, 2004; Mendez, 2001; Popovski, 2000).
However, several others assert that the prosecution of perpetrators of
atrocities in accordance with universal standards risks is causing more
atrocities than it would prevent, because it pays insufficient attention to
political realities (Snyder and Vinjamuri, 2003/04). These authors, poin-
ting to recent international criminal tribunals that have failed to deter
subsequent abuses in the former Yugoslavia and Central Africa, ques-
tion the effectiveness of international prosecutions emanating from the
retributive paradigm of justice.
Restorative Justice in International Relations: A Gandhian Approach 171

In any case, the ICC is not fully operational and its effectiveness in
ensuring justice remains to be seen. Moreover, the refusal of some
countries, most notably the United States, to ratify the ICC raises
important concerns about international justice. The United States claims
that, given its “special global responsibilities,” it must protect its more
than two hundred thousand troops permanently stationed in 40 countries
from “politically motivated charges” (Johnson, 2000). Johnson further
points out that the US specifically objected to the inclusion of war
crimes such as rape, forced pregnancy, torture and the forcible recruit-
ment of children into the military, and maintained that the ICC should
concern itself only with genocide.
This raises the question of whether individuals from powerful coun-
tries enjoy impunity even as these countries try to forcibly “police” the
rest of the world and claim to advance “justice” and “human rights” in
less powerful countries. Critics have questioned the hypocrisy inherent
in the fact that ICC instruments of international justice apply to the most
powerful individuals of poor transitioning countries but not to the
lowest-ranking soldier of the United States, Russia, and China (Call,
2004).
In case of tribunals, members of some ethnic groups of the former
Yugoslavia and Rwanda view the ICTY and ICTR as tools for ethnic
persecution rather than prosecution, as a conspiracy to “punish the main
enemy of NATO, the United States, and the West” (Call, 2004: 105). In
the case of Rwanda, the ICTR was located outside the country. As a
result only a small percentage of the hundred thousand perpetrators were
tried, and after nine years of its operation, only twelve convictions and
one acquittal were granted (Call, 2004). As Minow (1998: 87) suggests,
prosecutions are “slow, partial, and preoccupied with the either/or sim-
plifications of the adversary process.” Local perceptions of these tribu-
nals are that they are expensive, and they favor groups that are allied
with the West.
In contrast to those who support prosecutions for war crimes, ge-
nocide, and crimes against humanity, several scholars and advocates of
human rights have called attention to pragmatic approaches such as
those of reconciliation and restitution, broadly termed as restorative
justice, to secure justice in transitioning societies. Proponents of this
172 Restorative Justice Across the East and the West

approach observe that in recent decades restorative justice values have


been successfully deployed in peacekeeping operations (Braithwaite,
2002; Roche, 2006).
However, even so-called “peacekeeping operations” are militarized
and often turn violent. For instance, Razack (2004) puts forth an un-
settling analysis of Canadian intervention in Somalia which exposes the
contradictions between international peacekeeping, racist violence and
imperialism. Peacekeeping, writes Razack, imagines the interna-tional
as a space where “civilized” peoples from the North go to the South to
fight with “evil.” Rooted in the colonial project, contemporary peace-
keeping, for many Westerners, is Rudyard Kipling’s “white man’s bur-
den” that exhorts white men “to take up the thankless burden of meeting
the needs of their ‘new-caught sullen peoples’/half devil and half child”
(Razack, 2004: 4).
Highlighting the nexus between “racism” and First World domi-
nance, Razack points out that Northern “peacekeepers” imagine them-
selves as entering the “savage Third World” to sort out tribalisms, ethnic
hatreds, and warring factions. Without reflecting on their implication in
the terrible histories of the “Third World,” Northerners view themselves
as innocent parties carrying “the white man’s burden” of instructing and
civilizing the natives. For instance, popular discourses and practices of
peacekeeping offer no critical perspective on the historical implications
of colonialism or contemporary Western support for policies of the
World Bank and the International Monetary Fund (IMF) that have
further impoverished the “Third World.”
In the Canadian context, Razack (2004: 9) mentions that Canadians
have a deep sense of self as “the nicest people on earth, as [belonging to]
a peacekeeping nation, as modest, self-deprecating individual[s] who
[are] able to gently teach Third World Others about civility.” This na-
tionnal identity precludes any introspection of the gross human rights
violations and plundering of resources by Canadian registered mining
companies in Africa and elsewhere. Fantasies of innocence, “racial” su-
periority, and non-humanity of “Others,” as Razack reminds us, have
ensured that historically the “white man’s burden,” (including contem-
porary peacekeeping) have always been mired in violence.
Restorative Justice in International Relations: A Gandhian Approach 173

While the atrocities and torture perpetrated in “peacekeeping” are


ignored, international mediation and diplomacy in conflict situations
have been lauded as the application of restorative justice principles in
the global context (Braithwaite, 2002; Roche, 2006). Barkan (2000)
informs us that since the end of World War II, victims of historical in-
justices and crimes against humanity have increasingly turned to resti-
tution, financial and otherwise, as a means of remedying past atrocities.
Reconciliation eschews retributive justice in favor of “restorative” mo-
dels of dealing with the past, and has come to be institutionalized by
truth commissions (Moon, 2004).
Truth Commissions are perceived to be one of the “most vibrant
and imaginative forms of restorative justice” (Roche, 2006: 229). These
are government-sponsored inquiries into a pattern of human rights
abuses; their aim is to promote truth and reconciliation. Minow (1998:
87) underscores the importance of “the independent value of commis-
sions investigating the larger patterns of atrocity and the complex lines
of responsibility and complicity.” Truth commissions were first used in
Latin America in the 1970s and 1980s in Argentina, Chile, Guatemala
and elsewhere (Hayner, 2001).
According to Moon (2004: 186), Truth and Reconciliation Com-
missions (TRCs) are driven by a restorative approach to justice that
“claims to prioritize reparations for ‘victims,’ and, controversially, offer
amnesty to ‘perpetrators.’” TRCs gained much fame and media attention
in the 1990s when the South African Truth and Reconciliation Com-
mission (SATRC) was established by Nelson Mandela’s government to
investigate human rights abuses during apartheid (Llewellyn and Howse,
1999; Roche, 2006).
The SATRC comprised of three committees: a human rights viola-
tions committee that collected testimonies from more than 22,000 vic-
tims around South Africa; an amnesty committee, which heard more
than 8,000 individual applications for amnesty from civil criminal lia-
bility; and a reparations and rehabilitation committee that was respon-
sible for making recommendations to the South African government.
Critics point out that SATRC entailed a political compromise of
granting amnesty to human rights abusers and criminals. The idea that
an inquiry into the recent past can facilitate reconciliation and that jus-
174 Restorative Justice Across the East and the West

tice can be served by granting amnesty to those who disclose their role
in committing human rights violations was perceived by many to be
intriguing (Dyzenhaus, 1999). Before Mandela was released from prison
in 1990, the National Party government commenced negotiations that
demanded a blanket amnesty for all crimes committed during apartheid
rule in exchange for surrendering power (Roche, 2006). The African
National Congress (ANC) objected to this demand and in the meantime
had begun campaigning for a South African equivalent of the Nurem-
berg trials. However, a series of secret meetings between ANC and
National Party leaders eventually led to a compromise of establishing a
commission that would grant amnesties on a limited basis. Observers
questioned the possibility of achieving reconciliation when gross human
rights violators are allowed to go free after disclosing their crimes (Dy-
zenhaus, 1999).
Its founders argued, however, that the SATRC was not just a poli-
tical compromise; it was a project for “national unity and reconcili-
ation.” Justice was not absent; rather it was present in a different form
(cf Llewellyn and Howse, 1999). The Commission’s chairman, Arch-
bishop Desmond Tutu, emphasized that the SATRC had reawakened a
distinctive African approach to justice: “there is another kind of justice,
restorative justice, which was the characteristic of traditional African
jurisprudence. Here the central concern is not retribution or punishment
but, in the spirit of ubuntu, the healing of breaches, the redressing of
imbalances, the restoration of broken relationships” (quoted in Roche,
2006: 229). Consequently, the restorative justice model has been in-
creasingly used to foster and justify truth commissions. Recently, these
have been established in East Timor and Sierra Leone (Minow, 1998)
and have been proposed for other conflict-ridden regions such as Nor-
thern Ireland and Iraq (Roche, 2006).
Truth commissions are similar, yet significantly different from re-
storative justice practices used in domestic crime. Akin to domestic re-
storative justice, TRCs shun formal prosecution, encourage victim parti-
cipation, and use a hearing process that is less constricting than cour-
troom proceedings. However, unlike domestic restorative practices,
TRCs do not provide for meetings between individual victims and offen-
ders. In the case of the South African TRC, individual mediations were
Restorative Justice in International Relations: A Gandhian Approach 175

deemed impractical due to limited resources; moreover its tripartite


structure kept victims and offenders separate, except in a few instances
where a victim cross-examined an offender during his or her amnesty
application.
Another difference and a criticism of the SATRC is that the victims
received little or no reparation directly from the offenders. Instead,
responsibility for reparations fell primarily on the State (including,
arguably, Black taxpayers). The amnesty hearings required offenders to
only publicly confess about their crimes; no restitution was required to
be made to the victims. The Commission acknowledged and defended
this shortcoming in its final report citing the impracticability of in-
volving large numbers of perpetrators of violence in the process of
restitution (Roche, 2006). Besides, it can be argued, that most forms of
restitution in domestic restorative justice processes also tend to be more
emotional than material, usually in the form of an apology. However, as
Roche (2006) points out, even this type of restoration was lacking from
the SATRC’s hearings. There was no formal requirement for amnesty
applicants to be remorseful, thereby absolving “unrepentant serial mur-
derers who still felt that their war was a just one” (Wilson, 2001: 108).
The SATRC was mainly focused on nation-building rather than
justice for individual victims. This was manifest in the procedures for
victims to testify in human rights violations hearings. Victims were
hand-picked to remember and describe their experiences, which were
then generalized as being representative of a collective South African
experience. As Desmond Tutu mentioned, after hearing one victim tor-
tured by the police, “Your pain is our pain. We were tortured, we were
harassed, we suffered, and we were oppressed” (Wilson, 2001: 111).
After soliciting a limited number of testimonies, the Commissio-
ners then persuaded victims to forgive, sometimes by explicitly asking
them “are you now ready to forgive?” Individual acts of forgive-ness
were perceived to promote and symbolize the nation’s healing (Roche,
2006). As Toit (2005) argues, the SATRC process was characterised by
a major shift from a central concern with truth as acknowledgement and
justice as recognition during the initial victims’ hearings to the quasi-
judicial aims and procedures for granting amnesties.
176 Restorative Justice Across the East and the West

Predictably, then, the SATRC led to disappointment among victims


whose needs were subordinated to the national project of reconciliation.
Besides, changes were effected only at the constitutional, political and
legal levels in South Africa, leaving the socio-economic order and in-
equalities between Whites and Blacks largely intact. Truth and justice
were conceptualized merely in relation to the victims and perpetrators of
specific political atrocities, thereby overlooking social injustice and
systemic inequalities of apartheid (Mamdani, 2000). Toit (2005) points
out that this limitation reflects a general characteristic of TRCs, that they
typically give priority to gross human rights violations rather than to
systemic injustices. While TRCs are much celebrated in the West,
people actually affected by violence have different viewpoints.
These limitations of TRCs have left many doubts about the practi-
cability, and even misuse, of restorative justice in post-conflict states (cf
Call, 2004; Roche, 2006). While in the case of South Africa Truth and
Reconciliation Commission, amnesties were granted to perpetrators who
fully confessed, many TRCs have been unsuccessful in obtaining detai-
led accounts from offenders about their actions. Call (2004) cites the
example of East Timor’s Commission for Reception, Truth, and Recon-
ciliation (CAVR), for instance, that had taken seven thousand testi-
monies by January 2004; however, all of these were from victims and
none from the perpetrator, thereby thwarting the possibility of attaining
reconciliation and restitution. Many TRCs have been plagued with
insufficient funding and have failed to generate public interest and
awareness that is crucial to their function of society-wide education and
reconciliation. Moreover, critics point out that since TRCs do not have
the power to influence punishment (and therefore ensure justice) they
are at best reconciliatory mechanisms to complement retributive justice
(cf Call, 2004; Mendez, 2001).
The tensions between reconciliation and peace on the one hand, and
justice and accountability on the other, have underpinned discussions on
international justice. As the above discussion demonstrates, while some
argue that forgiveness and amnesties are the only way to ensure peace,
reconciliation, nation-building and the reintegration of offenders in so-
cieties transitioning from conflict (e.g., Llewellyn and Howse, 1999;
Snyder and Vinjamuri, 2004; Vinjamuri and Snyder, 2004), others assert
Restorative Justice in International Relations: A Gandhian Approach 177

that the granting of impunity and amnesties to war criminals undermines


justice and accountability and does nothing to ensure deterrence from
such crimes in the future (e.g., Call, 2004; Dyzenhaus, 1999; Mendez,
2001; Roche, 2006; Toit, 2005). For instance, pointing to the inadequa-
cies in restorative justice practices in the international context, Roche
(2006: 233) comments:

while it is possible to point to examples which illustrate one or two


restorative justice values, it is much easier to find cases where practice
fails miserably to live up to restorative ideals; where coercion is re-
sorted to before negotiation is exhausted, where mediation is under-
taken by self-interested super-powers, and where little thought is given
to repairing harm.

Quoting Peter Cosgrove, Commander of the Australian-led UN


peacekeeping operation in East Timor, Roche (2006: 234) upholds the
approach to “speak softly and carry a big stick.” The “big stick” was
provided by the US government in the form of a US aircraft carrier with
a contingent of US Marines. Roche (2006) maintains that working
without “a big stick” risks tragedies such as the massacre of 8,000
Bosnian Muslims in a supposed UN “safe haven” in Srebrenica. For
Roche, then, negotiation and appeals to a person’s morality (in other
words, the principles of restorative justice) are unlikely to succeed in
isolation; the threat of force is imperative to achieve the goal of main-
taining peace.
While Roche’s (2006) caution not to expect too much from re-
storative justice and to consider carefully where it should, and should
not, be deployed may be well-taken, his suggestion to use restorative
justice along with the threat of tougher enforcement to “maintain peace”
is problematic since, as discussed earlier, it is based on a simplistic
understanding of complex historical and political realities and lacks an
introspection of how the West is implicated in situations of conflicts in
other parts of the world. While it is true that restorative justice can leave
victims dissatisfied and offenders unchecked, the realm of international
law and transitional justice is much more complex than domestic cri-
minal justice.
178 Restorative Justice Across the East and the West

The review of literature for this chapter drawn from the fields of
peace research, conflict studies, international law, human rights, and
international security suggests that many Western scholars still perceive
that most wars and violent conflicts in “weak” or “failed” states are
intra-state affairs (cf Barkan, 2000; Hayner, 2001; Lederach, 1997; Po-
povski, 2000; Power, 2002; Snyder and Vinjamuri, 2004; Villa-Vicencio,
1999/2000; Vinjamuri and Snyder, 2004). For instance, Lederach (1997:
9, 13) writes “the majority of wars and protracted intermediate conflicts
are still located in the developing countries of the South,” and that “the
lines of contemporary armed conflict are increasingly drawn along eth-
nic, religious, or regional affiliations rather than along ideological or
class lines.”
Even the most famous writings on genocide and war crimes (cf
Hayner, 2001; Power, 2002) have paid scant or no attention to the
historical and contemporary implication of the West in “intra-state”
wars of the “developing” South. At best, the indictment has been about
Western/US inaction in cases of mass crimes (cf Power, 2002). For
example, most literature and even the proceedings of the International
Criminal Tribunal for the former Yugoslavia (ICTY) have shied away
from fully accounting for NATO’s war over Kosovo (cf Blum, 2005;
Vest et al., 2000).
While Milosevic was considered to be responsible for the death of
250,000 people in former Yugoslavia, Western media failed miserably
to investigate and provide an honest account of the history of Yugos-
lavia’s civil war. In his incisive analysis of the Balkans war, Parenti
(2001) writes between 1960 and 1980, Yugoslavia, a federation consis-
ting of multiple ethnic groups, including Albanians, Hungarians, Slo-
venes, Egyptians, Bosnians, Serbs, and Croats, was a prosperous country.
Economic growth was dynamic; citizens had a guaranteed right to
income and a good quality of life. The federation’s many national and
linguistic groups coexisted peacefully through a complex system of go-
vernment spanning multiple languages and semi-autonomous regions.
However, in the 1970s, Yugoslavian leaders borrowed money from the
West.
When western economies entered a recession due to the oil crisis of
the 1970s, Yugoslavian exports were blocked, leading to devastating
Restorative Justice in International Relations: A Gandhian Approach 179

effects. As in many other countries of the global South, the International


Monetary Fund (IMF) and the World Bank, stepped in to “rescue”
Yugoslavia: their demands included that the economy be “restructured,”
a process that included wage freezes, the abolition of state subsidized
prices, increased unemployment, elimination of most worker-managed
enterprises, and massive cuts in social spending (Parenti, 2001). As a
result, according to the World Bank’s figures, restructuring produced six
hundred thousand layoffs in 1989-1990 alone.
The IMF, through its control over Yugoslavia’s economic policy,
effectively broke the country into pieces by preventing transfer pay-
ments to the republics (such as Croatia, Bosnia and Serbia) from the
federal government and assigning debt to each of the member republics.
Serbia was the most hostile to IMF-imposed economic restructuring
with workers engaging in massive walkouts and protests. The economic
destruction of Yugoslavia, Parenti argues, caused different ethnic groups
to compete furiously for a share of rapidly declining economic wealth.
This in turn led to a cycle of bloodletting, vengeance and retribution.
Parenti (2001) and Clark et al. (2002) call attention to the long-term,
deliberate campaign on the part of several Western powers, most notab-
ly the US and Britain to destabilize and divide the last socialist holdout
in Eastern Europe.4
Similarly, the International Criminal Tribunal for Rwanda (ICTR)
has overlooked the historical colonial division of Tutsis between the
Belgian Congo and German East Africa, which later became Rwanda
and Burundi. No attention has been paid to the colonial exacerbation of
ethnic tensions between the Hutus and the Tutsis when the Belgians
gave every individual a tribal label that was written on his or her card,
hardening tribal identities that were previously fluid and peacefully co-
existing (Easterly, 2006), or the fact that French troops had provided
training to the Hutu-controlled Rwandan military, which in 1993 and
1994, organized massacres of some eight hundred thousand people of
Tutsi descent (Johnson, 2000). Furthermore, McNally (2006) discloses
how the World Bank and IMF intervention in Rwanda prepared the
ground for the mass genocide of the Tutsis.
Like many debt-ridden countries of the “Third World,” the Rwan-
dan government, facing a spiraling debt of more than $1 billion, ob-
180 Restorative Justice Across the East and the West

tained loans from the World Bank and IMF that are based on the con-
dition that the country would implement structural adjustment programs
(SAPs), commonly known as “economic reforms,” that are designed by
these financial institutions. The “reforms” led to heightened unemploy-
ment, mass impoverishment, inflation, rising fuel prices, and price-
freezing for farm produce. The European-trained political elite, in its
quest to maintain power, deliberately channeled the resultant social
tension to foment ethnic hostilities as a means to deflect the anger of the
masses (McNally, 2006). McNally informs that more offensively while
demanding ‘adjustments’ that destroyed the livelihoods of millions of
people, the IMF and the World Bank allowed the use of their funds for
massive arms purchases that facilitated the genocide.
Similar colonial as well as post-colonial inter-state linkages can be
traced in the case of numerous conflicts in Africa, Latin America, Asia,
and the Middle East. Unfortunately, truth commissions established to
investigate atrocities in Chile, El Salvador, and Guatemala have failed to
report on the US involvement in supporting the despotic regimes, dic-
tators, and military regimes of these countries (cf Hayner, 2002: 39, for
this failure in the case of the truth commission in El Salvador). Besides
these three countries, Costa Rica, Ecuador, Brazil, Peru, the Dominican
Republic, Bolivia, Nicaragua, Honduras, Panama, Mexico, and Colom-
bia have all been the playgrounds for covert and overt CIA operations.
Hundreds of thousands of Latin Americans have been killed, tortured, or
have simply disappeared in dictatorial and military regimes propped up
in these countries (Blum, 2005; Chomsky et al., 2002; Roy, 2003).
Many of the perpetrators were trained in the infamous School of the
Americas renamed later as the “Western Hemisphere Institute for Secu-
rity Cooperation” funded by the US government (Blum, 2005; Roy,
2003; Zinn, 2003). These facts have been overlooked by the mainstream
media as well as by prominent writings in international justice and
human rights.
The injustices perpetrated by colonial powers and current Western-
dominated institutions of neo-colonialism, for example, the World Bank,
IMF, and more recently the World Trade Organization (WTO), have
come nowhere close to being on trial in international justice mecha-
nisms.5 Extant discussion of the limited application of restorative justice
Restorative Justice in International Relations: A Gandhian Approach 181

in international affairs centers on overt violence, such as war crimes,


genocides, human rights violations, thereby ignoring structural violence
in the form of Euro-centric development models, structural adjustment
policies, and globalization that have constituted new forms of colonia-
lism a “war on the poor,” aggravating impoverishment, socio-economic
inequalities, crime, and destruction of societal fabric in “Third World”
countries.
How do we respond to the gross injustice of the fact that roughly 80
percent of the world’s income is concentrated in the richest 20 percent
of the world’s nations, while only 1.4 percent of the world’s income
goes to the 20 percent who live in the world’s poorest countries? Frame-
works for reconciliation and justice, based on an incomplete picture of
the historical and contemporary inter-state and intra-state connections of
conflict and injustices in the post-colonial (or rather neo-colonized)
South are bound to be inadequate to ensure sustainable peace and sta-
bility. Unfortunately, in the name of espousing human rights, these
structural defects and the virtual impunity for rich countries have been
glossed over by international organizations, academics, and journalistic
observers (Call, 2004). We must exercise caution that the benevolence
of restorative justice and its inherent value of forgiveness can mask
structural injustices that have become deeply entrenched in international
relations.
Recent years have seen claims for reparation for slavery advanced
by African states against the West (Plessis, 2003). Advocates for repa-
ration argue that it is hypocrisy on the part of the West to promote
“human rights” “democracy” while simultaneously avoiding the ques-
tion of reparation for injustices committed by its own governments in
the past. In the United Nations World Conference against “Racism,”
Discrimination, Xenophobia, Related Intolerance in Durban, South Af-
rica in 2001, reparationists argued that reparation for slavery is a pre-
requisite of a moral global economy that is premised on righting past
injustices. The demand for reparation for slavery is closely aligned with
the call for reparations for colonialism (Plessis, 2003), and more re-
cently with appeals for reparations and restitution in war-torn Afghanis-
tan (Kolhatkar and Ingalls, 2006). While these discussions on repara-
tions are important, they fall short of addressing the continued economic
182 Restorative Justice Across the East and the West

exploitation of countries in Africa, Asia, and Latin America. Keeping in


mind these limitations of justice in the international realm, I turn next to
Gandhian thought that has much to offer in the evolution of global jus-
tice.

A Gandhian Approach to Justice in International Relations


The grassroots resistance initiated by Mohandas Karamchand Gandhi
played a key role in overthrowing British colonialism in India. Gandhi
was not anti-British or against any government; rather he was against
untruth and injustice. This section contends that Gandhian philosophy is
still relevant today, not in India alone, but in promoting justice and
democracy worldwide. While a large number of Gandhi’s writings
pertain to the socio-economic direction that he believed India should
pursue, his views on life and human existence were transformed by
twenty-one years of experience against “racism” and denial of civil
liberties and political rights to Indian immigrants in South Africa. His
thinking, overall, was shaped by atrocities committed by the privileged
on the dispossessed. While Gandhi has been recognized as one of the
philosophers of non-violent approach to conflict resolution, this chapter
accentuates that there is much scope to re-visit Gandhian thought in
greater detail in order to expound an approach that promotes social and
economic justice in the international realm. Gandhi emphasized that
socio-economic exploitation is the root cause of violence and conflict.
This section provides an exploratory discussion on the potential contri-
butions of Gandhian thought to restorative justice in international affairs.
It is exploratory in the sense that this matter has received little attention
in international justice literature.
While Gandhi did not espouse a theory of justice per se, his ex-
periments with conflicts and their resolution and his resistance to in-
justice have much to offer to the discourse of restorative justice. More
than his spoken and written texts, the testament of his life reveals all that
he stood for (Bose, 1981: 159). Quoting his statement “my life is my
message,” Bose suggests that one must turn to his life and his principles
and values that informed his actions, since he was no academic theorist
but rather an activist and a practical philosopher. The fundamental ele-
Restorative Justice in International Relations: A Gandhian Approach 183

ment in Gandhian perspective of peace is his revolutionary mode of


action called Satyagraha, in conjunction with his exigent goal of Sarvo-
daya, meaning the well-being of all, which is a much richer concept of
people’s democracy than that practiced in Western liberalism.
In the literature on Gandhian thought, the discussion of Satyagraha
(“truth-force”) that is practiced with Ahimsa (non-violence) has often
been limited to a moral or even religious force, the spiritual power of
selfless, suffering love (Toit, 2005). However, Gandhi insisted that the
committed and principled non-violence of Satyagraha was much dif-
ferent from passivism, which he deemed to be a residual strategy of the
weak and the powerless. As his life demonstrated, he firmly believed in
opposing all forms of injustice; in his view silence and inactivity in the
face of injustice amount to cowardice and escapism. Gandhi (1940: 97)
wrote “No man could be actively nonviolent and not rise against social
injustice no matter where it occurred.” Satyagraha non-violence (Ahim-
sa) is a way of life that excludes violence in thoughts, words and actions.
These principles reject casting the opponent in the role of an enemy, and
hence presuppose compassion and self-criticism (Bose, 1981). A Satya-
grahi (practitioner of truth-force) “must never forget the distinction
between evil and the evil-doer” (Gandhi, 1929 quoted in Weber, 2001:
494). Thus, Gandhi’s concept of non-violence and truth-force were nei-
ther a sentimental practice nor a particular religion nor a denial of the
existence of evil.
Gandhi’s Satyagraha, in fact, was a political strategy that involved
an ingenious and complex blend of rational discussion, self-imposed
suffering, and political pressure (Parekh, 1989). However, as his poli-
tical tactics demonstrated, Satyagraha was not merely about self-im-
posed suffering (such as his famous fasts) or individual sacrifice. Gan-
dhi’s Satyagraha was a mode of political action, rather than political
compromise, and a strategy of popular resistance astutely premised on
the modernizing state’s commitment to universal moral principles (Toit,
2005). Satyagraha, entailing non-violent protest, civil disobedience,
boycotts, non-payment of taxes, strikes and other forms of non-coopera-
tion, was his means to compel the government to listen and negotiate,
thereby leading to his desired goals of freedom, justice, and equality for
all.
184 Restorative Justice Across the East and the West

Satyagraha mobilized moral outrage and public opinion against


injustices perpetrated by the state and its agents. Gandhi claimed quite
candidly that the “method of reaching the heart is to awaken public
opinion. Public opinion, for which one cares, is a mightier force than
that of gunpowder” (Gandhi, 1925 quoted in Weber, 2001: 508). His
most important “discovery” was that the conception of power need not
be restricted to that of the state only; popular action, too, was a fun-
damental source of power, and indeed it was more potent than that of the
oppressive state (Steger, 2006; Toit, 2005). Gandhi believed power was
ultimately derived from the victims. Popular resistance served as a coun-
tervailing force to hold the state accountable to administer justice and
equal civil rights.
Toit (2005) notes that while resistance to injustice was the most
crucial element in Gandhi’s project, justice as a positive objective did
not figure prominently in his discourse. Undoubtedly, justice as re-
tribution had no place in Gandhi’s thinking as is evident from his
resolute conviction and practice of Ahimsa (non-violence). Toit (2005)
suggests that although Gandhi’s critique of violence was directed mainly
to prevent political violence in popular resistance, it is evident that his
notion of Ahimsa applies to coercive and violent aspects of punishment
in the retributive justice paradigm. Parekh (1989) agrees that in
Gandhi’s fundamental assumptions about shared humanity, justice ne-
cessitated the restoration of equal rights and civic dignity of the
oppressed, but it did not require the punishment of the guilty as is clear
from his dictum “an eye for an eye will make the entire nation blind.”
How then should state agents responsible for political atrocities and
perpetrators of gross human rights violations be dealt with? Toit (2005)
contends limitations of Gandhi’s approach begin to appear in this regard,
since Gandhi was focused mainly on developing grassroots resistance
rather than on developing a theory of the state.
An in-depth examination of Gandhian thought, however, suggests
that everything that Gandhi wrote and practiced was permeated by a
notion of justice—justice not merely in terms of outward acts (ritual) but
in terms of inner conviction (Bakker, 2007). In the non-violent method,
the wrong-doer brings about his own ruin, if he does not undo the wrong
because either he is made to see the error through non-violent non-
Restorative Justice in International Relations: A Gandhian Approach 185

cooperation or he finds himself completely isolated (Gandhi, 1939).


Gandhi stressed that human nature is never beyond redemption (Gandhi,
1952). Thus, while Gandhi did not believe in justice as vengeance, his
implicit conception of justice was that of principled love to change the
opponent, rather than harmful indulgence that is expected to forgive
everything (such as blanket amnesties in TRCs). Thus, the dilemma
between justice (accountability) and reconciliation (peace, forgiveness),
discussed earlier, that has preoccupied scholars of international law is
futile from a Gandhian perspective: rather than conceptualizing justice
and reconciliation as inherently conflicting values or goals, both can be
envisioned as crucial pieces of the project of moral regeneration that is
based on mutual respect for the humanity and equality of all stake-
holders.
Moreover, although political theories of the state are well-deve-
loped in Western discourse, it must be noted that the notion of the
nation-state achieved institutional status only after the treaty of West-
phalia in 1648. Moreover, the fundamental role of the European state
since 17th century has been to protect modern institutions and interests
of industrial capitalism and to impose the will of the ruling class on the
fluid, uncertain and changing processes of capitalist modernity (Harvey
1990; Ny 2001). For Gandhi, the state represented violence in a con-
centrated and organized form: “the individual has a soul, but as the State
is a soulless machine, it can never be weaned from violence to which it
owes its very existence” (Gandhi, 1935). Hence, instead of developing a
theory of the state, Gandhi espoused the doctrine of “trusteeship,” which
provides a means of transforming the present capitalist order of society
into an egalitarian one. Trusteeship does not believe in capitalism and
gives the present owning class a chance to reform itself. It does not
recognize the right to private ownership of property except insofar as it
may be permitted by society for its own welfare. Ownership and use of
wealth are regulated by legislation. Thus, under state-regulated trustee-
ship, individuals are not free to use wealth for selfish satisfaction or in
disregard of the interests of society. Gandhi invited capitalists to become
trustees for those on whom they depend for the making, retention, and
increase of their capital since capitalists are owners not in their own
right but in the right of those they have exploited (Gandhi, 1931a,b).
186 Restorative Justice Across the East and the West

While it can be argued that trusteeship too requires regulation by a


democratic state, the concept of democracy in Gandhian thought is quite
different than that commonly accepted in Western liberalism. Instead of
majority rule, Gandhi believed in the principle of Swaraj (self-rule, self-
determination based on consensus). Vinoba Bhave, a follower of Gandhi,
remarked that the majority rule of 51 percent vote is a joke because “that
means 51=100 percent, 49=0! That is the meaning of rule by majority”
(quoted in Pey, 1996: 78). Gandhi believed that we have to strive for
Sarvodaya or the uplifting of all, rather than of just the majority. For
Gandhi, the rule of majority has a narrow application: he considered
yielding to the majority in matters of detail as nothing short of slavery.
He wrote that democracy is not a state in which people act like sheep;
rather individual liberty of opinion and action even of the minorities are
important and should be guarded (Gandhi, 1922). Gandhi believed that
in matters of conscience, the law of majority has no place. He cited the
example of Europe that has democracy and political power, but no
Swaraj. Asian and African races are exploited by Europeans, who in
turn, are exploited by the ruling class in the sacred name of democracy.
From Gandhi’s standpoint, contemporary practice of democracy is fal-
lacious even in advanced countries that have free elections as long as
racialized/ethnic/religious “Others” have a lower socio-economic posi-
tion than the dominant population in these countries.
In Gandhi’s perspective, then, there can be no true democracy in
the present state of iniquitous inequalities in which the elite roll in riches
and various subgroups of the population do not have enough to eat or
are oppressed in any way. Social and economic equality is the key to a
nonviolent free society in Gandhian thought (Pey, 1996). Non-violence
or Ahimsa, for Gandhi, must become the governing principle of society.
A nonviolent society, national and international, is not possible, so long
as the wide gulf between rich and poor persists. His idea of non-violence
is much broader than is currently understood; it includes not only non-
violent resistance to injustice, but also a non-violent state that is possible
only in a non-violent society and economy.
As a corollary, Gandhi’s definition of violence is much broader
than popular and legalistic characterization of the term. For him any-
thing that smacked of exploitation was violence. Gandhi perceived “vio-
Restorative Justice in International Relations: A Gandhian Approach 187

lence” in its fundamental sense of “violation,” which refers not only to


physical forms of violence, but encompasses emotional harm and psy-
chic terror that result when people are subjugated, repressed or exploited.
Violence, in its broad sense therefore, has a structural conno-tation: it
refers to “all those forms of indirect exploitation and structural mar-
ginalization which limit reflectivity and self-realization” (Steger, 2006:
333). Viewed this way, Gandhi’s definition of violence includes the
structural violence of poverty, inequality, overdevelopment, under-deve-
lopment, denial of basic needs, and “racism” (termed “racialism” by
Gandhi) and other forms of discrimination. The term “structural vio-
lence” was first coined by Johan Galtung, who was inspired by Gandhi’s
life and writings.
From a Gandhian perspective, then, violence in the international
arena is not restricted to armed conflict, but includes systems of “free
market” capitalism that blatantly protects Western markets and pushes
“Third World” countries to dismantle their trade barriers; structural
adjustment programs forced by the World Bank and IMF on indebted
countries leading to further impoverishment of their populations; trade
wars created by the World Trade Organization that have converted trade
from cooperative agreements to coercive arrangements resulting in star-
vation deaths, distress, and suicides of thousands of farmers in “Third
World” countries, displacement of millions of people large-scale deve-
lopment projects funded by the World Bank, and so on (cf McNally,
2006; Prigoff, 2000; Roy, 2004b; Shiva, 1997; 2000; 2002). Resistance
movements against corporate globalization are growing in countries,
such as Argentina, Brazil, Mexico, Bolivia, and India, to name a few. To
contain them, even “democratic” governments have unleashed various
forms of repression to tighten their control; civic protest has been
redefined as “terrorism” protestors and dissidents are then being dealt
with as such (Bishop, 2002; Earth Island Institute, 2001; Klein, 2002;
McNally, 2006; Roy, 2003, 2004a,b). While genocide and war crimes
receive much media attention, it is unfortunate that widespread misery
of structural violence on a global scale does not generate as much moral
outrage and media attention. As Arundhati Roy (2003: 4) writes “The
threshold of horror has been ratcheted up so high that nothing short of
genocide or the prospect of nuclear war merits mention.”
188 Restorative Justice Across the East and the West

In Gandhi’s view, the violence of discrimination, oppression, and


socio-economic exploitation, no matter how subtle, eventually degener-
ates into overt violence and aggression since organized violence is nee-
ded to maintain unjust systems. Organized violence and fascism, after
all, as Roy (2003: 37) notes are about “the slow, steady infiltration of all
the instruments of state power. It’s about the slow erosion of civil
liberties and about unspectacular day-to-day injustices.”6 In order to get
rid of organized violence and ensure a peaceful society, it is imperative
to eliminate structural violence. Peace cannot be sustained when a majo-
rity of people globally are forced to engage in a daily battle for food, for
water, for shelter, and for dignity. Gandhi’s concept of justice, therefore,
is one of social justice, fairness, and redistribution of resources.
Therefore, the first requisite of democracy and justice, from a Gan-
dhian perspective, is that privileged groups must outgrow their greed
and sense of self-possession, superiority and racialism, which, in turn,
requires self-introspection and moral regeneration. If the dominant
groups do not voluntarily discard their greed and exploitative practices,
the Satyagrahi must endeavor to expose the injustice that s/he sees or
experiences, even if s/he has to suffer in this process. The central agent
in all of Gandhi’s thinking is the individual or vyakti, the human being
comprised of the spirit (soul), mind, and body (in contrast to Kantian
duality of body and mind), who is never static and whose “being” is
intrinsically linked with his/her “becoming” (Bose, 1981). Gandhi be-
lieved that the individual must rediscover the right mind and live accor-
ding to ethical values encompassing unity, love, tolerance, and peace,
which are eternal and universal. Drawing on Gandhi, Kumarappa (1949)
emphasized the need for moral restoration:
While pacifism hopes to get rid of war chiefly by refusing to fight
by carrying on a propaganda against war, Gandhiji goes much deeper
and sees that war cannot be avoided as long as the seeds of it remain in
man’s breast and grow and develop in his social, political and economic
life. Gandhiji’s cure is, therefore, very radical and far-reaching. It de-
mands nothing less than rooting out violence from oneself and one’s
environment (quoted in Bose, 1981: 160).
Thus, existing international justice mechanisms such as interna-
tional criminal tribunals, the ICC, and truth commissions, etc., are in-
Restorative Justice in International Relations: A Gandhian Approach 189

adequate to ensure sustained peace since, in their current form, they do


not address the root causes of violence. From the standpoint of Gandhi’s
Satyagraha (truth-force), international justice systems, to be truly just
and effective, must uncover the truth about historical and structural
injustices rather than addressing specific instances of genocide or crimes
against humanity.
Further, Gandhi believed that there can be no peace on earth unless
human beings understand that all life is one, emanating from a universal
Self, and that interdependence between peoples and co-existence bet-
ween nature and human societies is imperative for human survival. In an
era of conflict between and within nations, unless evil and untruth in
one’s own self and in society are rooted out, we will continue to be “at
war with ourselves and therefore at war with one another” (Coomars-
wamy, 1947, quoted in Bose, 1981: 160).
Human values are crucial in Gandhi’s conception of peace. Similar
to Western liberal discourse, individual freedom and integrity rated high
in Gandhi’s assessment; however, unlike neoliberalism’s emphasis on
the “rational,” autonomous competitive individual, Gandhi placed im-
portance on “individual in society” rather than “individual per se.” If the
“individual in society” becomes devoid of values, the social fabric will
gradually crumble with conflict. Gandhi believed that human relation-
ships are in an incessant state of flux and, therefore, human life is in a
continuous process of “becoming.” Gandhi’s principle of ahimsa (non-
violence) recognizes this and endeavors to heal and reconcile, since it
believes in the possibility of transforming human minds. For Gandhi,
there is no victory or defeat; there can be only a pursuit of certain kinds
of values (Bose, 1981).
As mentioned earlier, to understand Gandhi’s perspective on peace
and justice, one has to comprehend his goal of “Sarvodaya” or well-
being of all without any discrimination between the rich and the poor,
strong and weak, or good and bad. Sarvodaya was not only his primary
objective, but also his central principle in the attainment of peace.
Sarvodaya calls for self-giving in socially beneficial labor and involves
a continuous struggle towards social and economic equality (Bose,
1981). Unlike classical and neoclassical economics and their utilitarian
principles that believe in “the greatest good of the greatest number,”
190 Restorative Justice Across the East and the West

Gandhi believed in the holistic well-being of all (Sarvodaya), not merely


of the greatest number. Sarvodaya was a philosophical position of
morality that Gandhi believed must underpin all human actions. In
contrast to the emphasis in mainstream economics on personal acqui-
sitiveness and material advancement, Gandhi adopted a holistic appro-
ach to well-being: in his view, societies must strive to promote not just
the material, but more importantly the spiritual, psychological, corporal,
and social well-being of all. Gandhi’s concept of Sarvodaya also incur-
porated a firm belief in Antodaya, that is, welfare of the least advantaged.
Antodaya was the pathway to Sarvodaya (welfare of all).
It is striking to note that most literature on international justice has
been written by international legal scholars, law professors, and human
rights advocates; accordingly, the perspectives of the victims of war
crimes, crimes against humanity or their loved ones are under-repre-
sented.7 While arguably scholars and advocates have played significant
roles in the development of international criminal justice institutions,
domestic tribunals, and truth commissions, from a Gandhian perspective
of Antodaya (well-being of the least advantaged), it is crucial to involve
victims and survivors and their insights in the development of mecha-
nisms for international justice. This shortcoming in international justice
models has been recently highlighted by Villa-Vicencio (2000) and
Henham (2004). Henham (2004: 437) writes “decision making in inter-
national criminal trials must be seen to engage effectively with victims
and victim communities if restorative justice considerations that reach
beyond rhetoric and symbolism are seriously contemplated.”
Moreover, Gandhi’s principle of Sarvodaya has implications be-
yond the inhabitants of the nation-state. Sarvodaya is an extension of the
Indian concept of Vasudhaiva Kutumbakam, a Sanskrit term that refers
to global human family or the entire humankind, as enshrined in the
Vedic and Upanishad wisdom of India’s ancient civilization. While it is
true that Gandhi always began his struggles for justice at the local micro
level, his vision surpassed the exigencies of local or national barriers.
According to Gandhi
My patriotism includes the good of mankind in general. Therefore,
my service of India includes the service of humanity … My patriotism is
not an exclusive thing. It is all embracing. I should reject patriotism
Restorative Justice in International Relations: A Gandhian Approach 191

which sought to mount upon the distress or the exploitation of other


nationalities. I want to realize brotherhood or identity not merely with
the being called human, but I want to realize identity with all life, even
with such things as that crawl on earth (Gandhi, 1925: 329).
Thus, Gandhi’s version of patriotism was towards the entire hu-
mankind, and indeed, the entire universe, instead of the narrow con-
ception of patriotism for a country. The “nation,” after all, as Benedict
Anderson (1983) points out, is an “imagined community” that not only
requires people to construct a sense of shared identity with large
numbers of other people whom they will never meet, but also involves
fantasies of belonging, kinship and shared history based on supposedly
common ideology, customs, and a sense of homogeneity. While nationa-
lism can evoke a sense of responsibility and commitment to the national
community, this dedication and the resultant “patriotism” often unques-
tioning entail a “herd mentality.” Nationalism leads to a narrow sense of
community that does not comprehend common interests of humankind
in its entirety. With its commitment towards “my country, right or
wrong,” nationalism easily degenerates into zealotry and fascism that
leads to inter-state conflicts and wars (Sorenson, 2003a). Gandhi ab-
horred narrow, exclusionary and uncritical nationalism. The rise of na-
tionalism is rather amazing, given that that the notion of the nation-state
achieved institutional status only in the 17th century. Echoing Gandhi’s
belief in patriotism for the entire Cosmos, Roy’s (2003: 36) words are
trenchant: “can we not find it in ourselves to belong to [a] civilization
instead of to just a recent nation? To love a land instead of just patrol-
ling a territory.”
The concept of Vasudhaiva Kutumbakam –Gandhi’s principle of
Sarvodaya “patriotism” towards all humankind, indeed, towards all
living beings—is of paramount importance in the current era of glo-
balization, ecological degradation and the rise of fundamentalism and
nationalist jingoism. The effects of neo-liberal globalization have eroded
and undermined the boundedness of nation-states (Hurrell, 2001). Today,
transnational corporations and international organizations such as the
World Bank, IMF, and the WTO have more power than national go-
vernments to dictate their economic, social, environmental, and health
policies, particularly in the “Third World.” These organizations are un-
192 Restorative Justice Across the East and the West

accountable, undemocratic, and lack transparency to the general public


(cf Goldsmith and Mander, 2001; Korten, 2001; McNally, 2006).
Besides, globalization has increased the incidence of transnational harm
(injuries to individual, groups, and local environment caused by other
societies or transnational corporations) exportation of hazards as in the
case of the Bhopal industrial disaster (IRENE, 2007; Linklater, 1999).8
The structural violence unleashed by global market forces has led to the
displacement and migration of large numbers of people. Refugee re-
settlement and immigration pose fundamental moral questions to notions
of bounded communities that often benefit from policies that cause
displacement in the first place. 9 Several writers (e.g., Devetak and
Higgott, 1999; Linklater, 1999; Nagel, 2005) have mulled over the co-
nundrums of tackling global injustices in their multidimensional forms
and achieving a just international order.
Gandhi’s principle of Sarvodaya (well-being of all) is in glaring
contrast to classical theories of the state that have long argued that the
first task of the state is to protect the interests of insiders (Linklater,
1999; Marchetti, 2005). The classical realist claim of state self-interest
underpins most developments in international law. Indeed, the entire
edifice of international relations remains anchored in the Westphalian
model of sovereign, self-contained states. However, as Linklater (1999)
and Marchetti (2005) point out, when arguments upholding self-interests
of self-contained states were made in the 17th and 18th centuries, the
level of cross-border harm was not as prevalent as is today. The argu-
ment that “insiders” come first has become untenable today in the con-
text of increasing transnational harm. Gandhi’s philosophy of Sarvodaya
(well-being of all) and Antodaya (welfare of the least privileged) pro-
vide a normative framework within which to rethink the meaning of
state sovereignty move towards transnational justice in a globalized
world.
While Gandhi’s thinking can inspire rethinking of contemporary
notions of international justice, it has wide implications for domestic
restorative justice as well. The theory and practice of restorative justice
in intra-state contexts thus far has been mainly concerned with criminal
justice, overlooking socio-economic justice. Recently, a few writers
have recognized the need to understand violence and injustice in the
Restorative Justice in International Relations: A Gandhian Approach 193

broader sense of structural violence. For instance, while most propo-


nents of domestic restorative justice aspire towards restructuring of cor-
rectional practices, Ashworth (2002), Christie (2000), Johnstone (2002),
and Sullivan and Tifft (2004) remind us that such reform is, at best,
simplistic and ignores underlying social inequalities based on “race,”
class, gender, and religion, etc. Gandhi’s approach provides the nor-
mative and transformative dimensions to conflict resolution and justice
mechanisms that can bring about broader and deeper changes in hu-
manity and society. Conventional restorative justice that utilizes narrow
definitions of crime, harm, and injustice is insufficient to deal with
structural conditions that perpetuate inequality and violence. Restorative
justice must, therefore, be re-envisioned as “transformative justice;” the
definition of crime needs to be expanded as well to include social and
economic exploitation and discrimination. To this end, Gandhi’s frame-
work can serve to expand the circle of restorative and criminal justice
systems to include the task of rectifying inequalities in societal and eco-
nomic structures that can lead to violence.
Besides, it has been contended that the neglect of social and econo-
mic inequalities is a consequence of the prevailing statist approach in
most political systems (Ashworth, 2002). Restorative justice, and indeed
the entire criminal justice system, assumes that the state and its agents
are righteous and fair arbiters of human rights and enforcers of the social
contract (cf Johnstone, 2002). As stated earlier, Gandhi viewed the state
and its mechanisms as a locus of oppression. Smith (2003) corroborates
that “the capitalist state and its courts are not “neutral” arbiters of “jus-
tice.” Rather they are instruments of class domination and racial op-
pression” (Smith, 2003: 263). The implications of the predominance of
ruling class interests in the institutions and decision-making processes of
the state as well as police brutality and harassment of ethnic/religious
minorities have been ignored by most restorative justice literature. 10
With its emphasis on justice well-being for all, the Gandhian approach
exhorts restorative justice mechanisms to demand accountability from
the state and its agents by forging grassroots resistance based on the
principles of Ahimsa (non-violence) and Satyagraha (truth-force) to at-
tain inclusive and participatory governance.
194 Restorative Justice Across the East and the West

Gandhi’s experiments throughout his life and work in South Africa,


India, and in England led him to emphasize that merely condoning
injustice and advocating peace is unsustainable. The task of resolving
violence with moral regeneration is an imperative of our time (Bose,
1981), a counsel that truth commissions and other institutionalized
forms of international justice can no longer ignore. Unlike restorative
criminal justice as is currently practiced in domestic and international
contexts, Gandhi’s sense of justice is transformative and preventative in
nature rather than after-the-fact because it interrogates struggles to
remedy socio-economic inequities that lead to violence in the first place.
At a time, when statist assumptions are crumbling due to globali-
zation and increasing interdependence of states, Gandhian thought, with
its conceptualization of violence as encompassing physical as well as
structural violence calls for re-thinking popular and legalistic notions of
crime and criminal justice to include both intra-state and inter-state
economic exploitation. The current state of international affairs is cha-
racterized by an alarming level of exclusion, disenfranchisement, and
socio-economic injustices. Justice in international affairs requires first a
radical redistribution of power and wealth from the rich to the poor both
within and between countries (Linklater, 1999). Since distributive jus-
tice is still a novel principle in the international context (Armstrong,
1999; Caney, 2000; Hurrell, 2001), Gandhi’s perspective provides the
ethical foundation as well as practical strategies to advance the cause of
socio-economic justice in global affairs, which is imperative to ensure
global peace, justice and democracy.

Conclusion
While restorative justice has gathered momentum in intra-state contexts,
justice on a world scale continues to be in a perplexing and undeveloped
state even in the twenty-first century. Extant literature in the global con-
text is limited to a discussion of international criminal justice in situ-
ations of wars, genocide, and violent crimes on a mass scale, while igno-
ring stark socio-economic inequalities, which is a residual of colonia-
lism as well as a consequence of contemporary global economy condi-
tions largely dictated by the West.
Restorative Justice in International Relations: A Gandhian Approach 195

Gandhi’s teachings can be used to expand the concept of restorative


justice into one of societal transformation and moral regeneration to pro-
mote a just world order that upholds social and economic justice. While
this may appear to be a massive project, it must be noted that piecemeal
or band-aid approaches to international justice, as has become manifest
time and time again, are inadequate and even perilous. The concept of
international justice needs to be expanded from one of criminal justice,
as is commonly understood today, to one of global socio-economic
justice since globalized inequalities are the underlying root cause of glo-
bal conflicts. Gandhian thought can provide important insights for ans-
wering the theoretical, pragmatic and normative questions that besiege
world governance and justice.
There is certainly no shortage of writings on Gandhi or Gandhian
philosophy. However, attention to his approach in fields of knowledge
or praxis other than non-violent activism has been scant (Weber, 1999).
For those who want to study and promote peace and justice, whether
domestic or international, writing off the Gandhian approach as archaic
would be a ominous error. Instead, Gandhi’s philosophy is ever more
crucial for transformative justice in the present era to address spiraling
violence—both armed and structural—that threatens the very existence
of humankind.

Endnotes
1 Several writings on restorative justice use the term “developed” countries
instead of Western nations. However, given the arguments advanced by se-
veral critical development theorists about the contested nature of “develop-
ment” and the power of the West in marking countries as “developed”
“developping” (cf e.g. Chowdhry, 1995; Escobar, 1995; Esteva, 1992; Gold-
smith, 2001; Sardar, 1998; Tucker, 1999), I prefer to use the term Western
countries, or simply the North, to include the G8 countries.
2 The literature on the debilitating effects of the global economy is vast (cf e.g.
Hong, 2000; Johnson, 2000; McNally, 2006; Prigoff, 2000; Roy, 2004a,b;
Stiglitz, 2002).
3 Cf Chomsky, Mitchell, and Schoeffel (2002: 56-57) for a discussion on the
failings of Nuremberg and Tokyo trials.
196 Restorative Justice Across the East and the West

4 For a detailed discussion on the Universal Declaration, see United Nations


Center for Human Rights (1994).
5 Also cf www.zmag.org/ZMag/kosovo.htm, for detailed analysis of the Ko-
sovo war.
6 Cf, for instance, Goldsmith (2001), Ismi and Schwartz (2007), McNally
(2006), Veltmeyer and Simon (2005) for a discussion on neo-colonialism.
7 Cf Democracy Now! (2007), Hewitt (2006), Roy (2003: 17-44), Sorenson
(2003a), and The Black Commentator (2006), as well as websites, such as
www.stormfront.org.
8 Mendez (2001), a survivor of torture and detention by the Argentinean
military and currently a human rights advocate, is an exception.
9 In December 1984 deadly methyl isocyanate gas leaked from a Union Car-
bide chemical plant in Bhopal, causing the deaths of more than 3,800 people
ongoing. This was the worst industrial accident in world history. Survivors
and their children continue to suffer multi-generational health effects ran-
ging from cancer and tuberculosis to birth defects and chronic fevers. In
1989, after years of litigation, the United States and owners of the plant
agreed to pay the Indian government $470 million. In return, the govern-
ment agreed to drop criminal charges against the company and its former
chairman; cf Karliner (2007) for a discussion on the Bhopal tragedy.
10 The effect of the North American Free Trade Agreement (NAFTA) on Me-
xican society and economy is a case in point. NAFTA has led to the
displacement of millions of Mexicans who attempt to move to the US to
find work, often risking their lives in the process. The recent debate on
immigration in the US is an example of the challenges for moral response-
bilities of bounded societies in a globalized world.
11 Cf Burghardt (2002), Earth Island Institute (2001), Smith (2003), Sorenson
(2003b), as well as websites such as www.copwatch.org, members.fortune
city.com/brutalitycanada, mediafilter.org/cwdir. Also, see Amnesty Interna-
tional (2007); Blackwell et al. (2003); Desai (2005); Hagopian (2004);
Srikanth (2004: 202-29) for a discussion on post-9/11 racial/religious profi-
ling of Arabs, Muslims, South Asians, and other minorities and dissidents in
the USA and elsewhere. Debates over the abuse of state power are trumped
in the name of “security” and “patriotism.” Anecdotal experiences of ha-
rassment and persecution of new immigrants, visible minorities, and inter-
national students of South Asian and Arab descent in the US, Canada and
elsewhere suggest the use of see-through-wall and audio bugging devices to
monitor their homes and everyday activities using neighborhood “watch”
Restorative Justice in International Relations: A Gandhian Approach 197

groups, besides wiretapping, researching their past, trailing them and the
subsequent misuse of information gathered through these surreptitious
means. While domestic spying has received some media attention in the US,
awareness of the clandestine use of see-through-wall technology has been
lacking (cf Burke and Warren, 2006; Chan, 2006; Hearn, 2006; Hunt et al.,
2001; Jones, 2006; for the existence of this technology). Media, scholarly
and civil attention to the use and abuse of these technologies is called for.

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Weitekamp, E.G.M. and Kerner, H. (2003), Restorative Justice in Context:
International Practice and Directions, Willan: Devon, UK.
Wilson, R. (2001), The Politics of Truth and Reconciliation in South Africa:
Legitimizing the Post-Apartheid State, Cambridge University Press, Cam-
bridge, UK.
Zehr, H. (1990), Changing Lenses: A New Focus for Crime and Justice, Herald:
Waterloo, Canada.
Zinn, H. (2003), A People’s History of the United States 1492-Present, Harper
Collins: New York.
13
____________________________

The Environmental Restoration


Movement as an Issue of Justice
FRED H. BESTHORN

The disastrous impacts of global warming specifically and global envi-


ronmental degradation more generally, by all reputable estimates, are
fast reaching a point of no return. That is, even if humanity reduced
greenhouse gases substantially and committed to a concerted effort to
halt destruction of fragile ecological systems, it would take centuries if
not millennia to restore the earth’s climatic and ecological stability. The
sobering reality of glacial ice melts and corresponding sea level rises,
mass population relocations due to increased incidents of natural disas-
ter and encroaching desertification, unprecedented shortage of fresh wa-
ter and the disastrous health impacts of degraded ecological systems,
and many similar issues can no longer be denied.
Noted British geophysicist, James Lovelock, who popularized the
notion that the earth is a holistic, self-regulating and self-sustaining
system notes that the community of earth has already reach a point of no
return (Lovelock et al., 2006). His theory, referred to as the Gaia Hypo-
206 Restorative Justice Across the East and the West

thesis, postulates that that the earth is a living system much like the
human body and that it has a myriad of feedback mechanisms that work
together to maintain the health and viability of the whole organism.
When the earth organism comes under threat it will respond in often
dramatic ways to insure its survival—much like the human body’s
immune system works to heal itself from injury or to rid itself of in-
vasive viruses. But, in the case of the earth the viruses are us. Human
beings have now become the single most virulent threat of the survival
of the earth by virtue of our reckless and inane ecological practices. For
Lovelock, Gaia is fighting for its very survival as rapidly increasing
human populations, unrestrained neo-industrialization, and an ever-
growing reliance on western economic models of resource extraction
and consumption threaten to upset the precise balance that had made the
earth conductive for life and human habitation. Lovelock likens the
current state of ecological health to an illness that has beset the earth and
which the organism is now preparing to resist. He writes:

But we are sufficiently aware of the physiology of the Earth to realize


the severity of its illness. We suspect the existence of a threshold, set
by the temperature or the level of carbon dioxide in the air; once this is
passed nothing the nations of the world do will alter the outcome and
the Earth will move irreversibly to a new hot state … The few things
we do know about the response of the Earth to our presence are deeply
disturbing. Even if we stopped immediately all further seizing of
Gaia’s land and water for food and fuel production and stopped poi-
soning the air, it would take the Earth more than a thousand years to
recover from the damage we have already done, and it may be too late
even for this drastic step to save us (Lovelock et al., 2006: 6).

Whether or not Lovelock’s forecast proves predictive in the long


run only time and circumstance will tell. Notwithstanding his clarion
call, there are many opportunities for individuals and institutions to
work to establish more just ecological practices. Indeed, in many ways
ecological justice and human justice are two sides of the same coin. As
social work theorists Van Wormer, Besthorn and Keefe (2007: 254) note,
“destructive uses of nature rebound back to harm humans, thus locking
people into a cycle of harm and oppression for both humans and non-
The Environmental Restoration Movement as an Issue of Justice 207

humans.” Two emerging justice movements, one focusing on the human


community and the other on the ecological community—and both of
which emphasize just practices of restoration rather than retribution—
offer insight into how we might develop saner and more sensible envi-
ronmental policies and practices.

Restorative Justice and Environmental Restoration


In the weeks and months following September 11, 2001 much of the
public debate in America and in many places around the world focused
on issues of retaliation, retribution, and justice. For most people, the
immediate response to being harmed by another, especially when that
harm is great, is to avenge the act in a manner and to an extent that
attempts to equalize the hurt. That is, retaliation attempts to create a kind
of harm-quotient that, while not removing the hurt of original act of
harm, will in some manner force the other to experience the relatively
same amount of pain; thus balancing the ledger.
In those rare reflective moments following a great harm, the higher
consciousness of most human beings makes the case that there is, in fact,
no way to equalize the pain. A murdered family member, a lost career or
broken relationship can never be fully recompensed fully. Rationally,
most recognize this reality. However, retribution can be a highly char-
ged and reactive emotional force. At the level of instinct and in the
immediacy of the harm-event people are not reflecting upon the ne-
cessity of reasonably response. In fact, most feel somewhat obliged to
balance the harm quotient because in the public arena rejoinders to
crime and harm are predicated on a punitive response. The liberal
democratic political project postulates a contractual relationship bet-
ween persons which, when broken seriously, legitimizes retribution in
the form of judicial punishment.
While an escalating cycle of violence and judicially sanctioned
counter violence seems to be the norm for a world gone astray from the
impulse of its gentler angels, there are growing signs that many societies
are attempting to find a way out of the destructive and repetitive cycles
of harm and retribution. The Restorative Justice Movement is one such
example of this emerging effort. Restorative justice aims to bring about
208 Restorative Justice Across the East and the West

a fundamental change in modern western cultural response to crime and


punishment. The Restorative Justice Movement sprang from the civil
rights, feminist, and indigenous freedom movements of the 1960s and
1970s. While these earlier progenitors were largely focused on social
transformation, the Restorative Justice Movement has as its primary aim
the dismantling of the justice-industrial complex (Johnstone, 2002). This
system executes or incarcerates ever increasing numbers of its citizenry
in a continually more punitive and depriving environment. Restorative
justice seeks to replace the values of vengeance and retributions with a
more humane and morally defensible stance of restoration, healing, and
forgiveness. These are thought to be the primary ameliorative paths of
crime victims and the only way to “create just communities in which
people who are in pain and suffering can heal with dignity” (Sullivan
and Taft, 1998: 21) and where meeting core humans needs and main-
taining primary relationships are created and honored from the outset.
Restorative justice shines a light on the question of how to hear the
voice of those who suffer and how to foster healing of those harmed
without creating a disabling and harmful situation for another. With this
as background, the central aim of this essay is to consider the pro-
position that human beings are not the only constituency victimized by
the raising tides of harm and violence. It is increasingly clear that the
physical environment and its non-human members also suffer and are
victimized by the rapaciously violent acts of others (Besthorn and Canda,
2002). And, in most cases, this violence is perpetrated by human beings,
often under the aegis of larger corporate or private market-based inter-
ests. While the impact of natural environmental harm may not be imme-
diately evident to the casual observer it is nonetheless apparent that the
earth community is approaching the place where humanity’s insidious
acts of extractive and exploitative violence, often hidden behind the pha-
lanx of growth, development and continually progress, is bringing the
earths carrying capacity close to the precipitous of collapse.
Many ethical frameworks and practical policies have been proposed
to address this situation but none have found a more receptive hearing
than the Environmental Restoration Movement. Environmental Resto-
ration has emerged as one of the central platform principles of western
environmental policy. It is predicated on a mixed array of ecological,
The Environmental Restoration Movement as an Issue of Justice 209

ethical, and moral premises positing how humans ought to live in rela-
tionship with the rest of the natural world. Its primary normative prin-
ciple is that when natural settings are degraded by human interference,
human beings have a responsibility to restore these settings back to a
state of relative naturalness. Environmental Restoration is not without a
considerably degree of controversy. It, in fact, raises some of the most
challenging questions in the field of environmental policy and ecologi-
cal philosophy (Katz, 1997).
The thrust of this study is to suggest a critical way that the Restora-
tive Justice Movement may inform Environmental Restoration. If it is
true as Thomas Berry (1988) and others have suggested that the way we
treat the non-human world is reflected in the way we treat others in the
human world then this perceived reciprocal interrelationship may have
something to say about how we think about recreating an ecosystem
after damage has been inflicted upon it and, perhaps most importantly,
how we consider our relationship with the earth community before we
inflict damage upon it.

Core Elements of Restorative Justice


Restorative Justice is not a unitary concept. It is frequently referred to in
a number of different ways in an attempt to describe the multiple
dimensions of its evolution and current practice. It has been variously
called relational justice, restorative community justice, transformative
justice and needs-based justice (Burnside and Baker, 1994; Morris, 1994;
Sullivan and Tifft, 1998; Young, 1995). Many restorative justice propo-
nents are clear to make a distinction between restorative justice as a
conceptual or philosophical framework and restorative justice as a
sociopolitical movement aimed at changing the current criminal justice
system (Johnstone, 2002; McCold, 2000; Zehr, 1990). Others suggest
that there are many insincere advocates of restorative justice initiatives
and, as a result, there are many distorted versions of restorative justice.
While using the restorative parlance, many reformist schemes still oper-
ate out of a punishment-based, retributive paradigm of justice (Harris,
1998; Sullivan and Tifft, 2002).
210 Restorative Justice Across the East and the West

While restorative justice is difficult to characterize it is not un-


reasonable to attempt some broad definitional boundaries. Restorative
justice is as much about individual and social values and ideologies
which guide community response to crime as it is about best methods of
preventing future offenses (Daly, 2000). It is not simply a new method
to control crime and criminal behavior but rather suggests a fundamental
reorientation to the manner in which communities view and respond to
criminal acts. Katherine van Wormer (2002), social worker and ardent
supporter of the Restorative Justice Movement offers this straightfor-
ward characterization. Restorative justice:

aims to change the direction of criminal law by focusing it on the


needs of victims and on repairing communities. Unlike retributive
justice, which focuses on punishment of the guilty offender, restorative
justice takes a more caring approach. Proponents of this non-adver-
sarial model adapt a different lens for viewing crime and rectifying the
harm done by the crime. Restorative justice entails active involvement
by members of the community operating with official sanction of the
local court.

Restorative justice has ancient roots. Several theorists have noted


that the impetus toward restorative justice as currently conceived is
actually a rediscovery of what most ancient cultures knew at very
intuitive levels (Braithwaite, 2000; Findlay, 2000; Yazzie, 2000). Before
the establishment in early modern Europe of the current law-based,
punitive, state-sanctioned model of criminal justice, many cultures
viewed crime as a breaking of community relationship. Since close
personal ties and strong communal relationship were the lifeblood of
survival in often dangerous environments, justice did not generally take
the form of punishment and removal. Crime was viewed as an offense
against the community to which the offender would continue to be con-
nected.
While restitution played an important part of early justice system, it
was the reestablishment of community peace and the mending of broken
relationship which made up the core of earlier cultural responses to
crime (Sullivan and Tifft, 2001). For example, indigenous populations in
North America, South America, Australia and New Zealand have had
The Environmental Restoration Movement as an Issue of Justice 211

various forms of healing circles whose aim it was to bring victim,


offender and community together to give deep and resonant voice to the
complexity of the causes and effects of the harm event (Taraschi, 1998;
Yazzie, 2000). Everyone spoke so that everyone could hear the deep
impact of the crime upon the victim, why the offense occurred, how the
community is impacted and what will be done to repair the harm. The
target of this communal event was to repair the damage and reestablish
relationships. Van Wormer (2002) notes that a ceremonial feather or
talking stick was passed from speaker to speaker to emphasize the
importance of fully hearing the voice of the persons giving expression to
their hurts, sorrows or concerns. In this manner ancient traditions placed
the focus on conversation intending to lead to a state of personal and
collective reconciliation rather than impersonal distancing resulting in
separation and punishment. Van Ness and Strong (1997: 21) compare
and contrast the ancient and current patterns in the context of the nature
of the crime, the parties to the crime and the goal of justice (Table 13.1).
While proponents of the Restorative Justice Movement are not
necessarily of one mind regarding the essential character of how socie-
ties deal with harm, there are frequent themes which tend to epitomize
some common viewpoints. Johnstone (2002) identifies five core themes
that are at the heart of many restorative justice systems.
The first theme is that modern western patterns of responding to
crime represent a relative new position which is, in fact, quite inconsis-
tent and alien to most non-Western and earlier cultural traditions (Bian-
chi, 1994; Johnstone, 2002).
Early tribal groups did not make the same distinction between
crime and conflict as modern Western societies tend to make. Crime was
not the rending of some abstract social contract but rather a break of
communal relationships. The primary aim of justice was to restore peace
and heal relationships.
A second theme involves the kind of moral questions societies
ought to ask after a crime has been committed. For restorative justice,
the principle question is not what should be done to the offender but
rather what does the victim have to say about the offense and how resto-
ration ought to precede.
212 Restorative Justice Across the East and the West

Table 13.1
ANCIENT PATTERN CURRENT PATTERN
Crime Injury to victims and their Violations of the law
families in the context of the
community
Parties Victims, offenders, Offenders and government
community and government
Goal Repair damage and Reduce future lawbreaking
reestablish right through rehabilitation,
relationships punishment, deterrence
and/or incapacitation

Specifically, it means listening intensely to what the victim wants now


that harm has been inflicted upon her or him. Modern victim rights
movements, although an advance over previous periods when victim
voices were rarely heard; still tend to subordinate the voice of the victim
to the dictates or mandates of the judicial process. That is to say, while
victims are heard they still have little or no input into wider matters
concerning whether or not formal charges ought to be pursued or the
nature and scope of restitutional endeavors. Restorative justice posits
giving primary voice to victims relative to how a crime is defined and
how it ought to be resolved. Modern criminal justice protocols rarely
hear this deeper voice of the victim because either it believes it already
knows everything they shall say or because it has not developed the skill
to hear the quiet voice of healing and reconciliation since the language
of punishment and retribution is such a cacophony.
A third theme concerns the way communities and victim(s) relate to
the offender. Restorative justice presumes the offender and the victim
being involved in ongoing connections with one another. The offender is
a member of the community rather than an alien or enemy from the
outside. There is no arbitrary or abstracted separation between victim,
offender and larger community. This stance hypothesizes a dynamic,
though temporarily strained, interrelationship between all parties. As
such, neither the victim nor the community can cut themselves off from
The Environmental Restoration Movement as an Issue of Justice 213

the offender. The offender is a full member of the community and an


estranged partner of the victim. Alternative strategies must then be
found to rebuild the community and heal the estrangement.
Punitive models of justice are premised on the attitude of punitive
segregation. In a sad twist of fate, this approach regrettably ensures that
the offender will be more rather than less a threat to the community in
the future. This alternative view of healing and restoration of commu-
nity and offender is not a naively sympathetic view of the offense nor is
it a utopia perspective on the prospect of reconciliation. In fact, the
offender must do whatever the community demands to regain full mem-
bership. In the words of Johnstone (2002: 13):

in the very process of being confronted personally with their victims


and hearing first hand of the actual harm caused by their behavior—
something which does not happen in the conventional criminal justice
process—offenders will begin to grasp the true effect of their behavior.
The psychological strategies they use to distance themselves from
knowledge of these consequences will be penetrated.

A fourth theme of restorative justice is the importance of commu-


nities being involved in the resolution of conflicts between its members.
Responsibility for crime cannot be delegated solely to the state and to
professionals. It is as important that the community make the offender
aware of the collective consequences of their acts as it is for the ag-
grieved to make them aware of the individual consequences. Every
crime perpetrated on an individual has reverberations to the entire com-
munity. The current system of justice ostensibly acts as the agent of the
community. Criminal petitions before the court are spoken in the name
of the people, when in reality most communities have little to do with
the remediation of individual criminal acts. Opponents of restora-tive
justice frequently argue that this part of the restorative model is im-
practical because communities no longer exist in the way they did in
earlier societies. While this may be partially true in terms of traditional
place-based communities, communities are also being redefined in much
broader terms than before and restorative programs that find ways to
involve members can help foster a revitalized sense of community.
214 Restorative Justice Across the East and the West

A final core theme is the belief that the formal legal justice system
is not suitable for restorative goals. The current adversarial system,
where one is a winner and the other is a loser, can never be sufficiently
reformed to allow room for the goals of restorative justice. What is
required is a complete revamping of the system that allows for less
formal face-to-face negotiations where parties are free to determine the
nature and extent of the harm done and creative ways to its resolution.
Current constraints regarding strict legal definitions, legal precedents,
coercive deterrence and safety through segregation will not provide the
scaffolding for a mediated model of victim, offender and community
response to harm.
This section has provided a brief survey of the contours of a re-
newed strategy for handling human harm in the context of the modern
Western criminalized justice systems. The Restorative Justice Move-
ment has much to offer our understanding of the relationship between
victim, offender and community before and after a harm event. It also
has, in fact, much to say to the idea of Environmental Restoration, an
environmental policy agenda which shares a similar vernacular but
which can be strengthened by a serious consideration of key themes of
Restorative Justice.

Core Elements of Environmental Restoration


Environmental Restoration shares a key concern with The Restorative
Justice Movement. In the main it is a environmental policy initiative
designed to deal with the aftermath of great harm. It, like restorative
justice, seeks to equalize the harm quotient between the victim and the
offender. But, in the case of environmental restoration the victim is not a
person but rather the earth—an ecosystem, a sentient physical being or
place that has sustained a great harm. Like restorative justice, the
offender or the creator of the harm is in most cases a person or more
likely a collective of persons (a company, a corporation, a development
group) which either maliciously or by legal sanction caused great harm
to another, a living entity.
Environmental Restoration has been the cornerstone of most Wes-
tern models of ecological justice for the larger part of the last half cen-
The Environmental Restoration Movement as an Issue of Justice 215

tury (Baldwin et al., 1994; Gunn, 1991). It has been the basis of many
environmental policy agendas in the industrialized world. It is premised
on a mixed array of ecological and normative standards suggesting how
humankind ought to live in relation to the natural word. Its overriding
assumption is that when harm is caused a living ecosystem it is the
moral responsibility of humans to restore that harmed place to a state of
relative dis-harm (Cowell, 1993; Jackson et al., 1995).
The Environmental Restoration Movement had its genesis in the
early years of the 20th century. As the 19th century ended, after a half-
century of rapid industrial development, population growth and west-
ward expansion, many policy makers and average citizens alike began to
realize for the first time that natural resources were finite (Worster,
1994). These sobering realities meant that unless collective action was
taken to slow resource extraction and, where possible to rehabilitate de-
graded natural systems, America would gradually, but inescapably, out-
strip the carrying capacity of its land and resources. Conservation, pre-
servation resource management and land restoration were increasingly
becoming in the public mind practices of choice for dealing with the
nation’s dwindling natural inheritance (Hays, 1972). President Theodore
Roosevelt convened the first Governors Conference on natural resources
in 1907 in order to bring together the best minds from the highest levels
of government and private industry to deal with the problem of dimi-
nishing resources. He wrote “it is evident the abundant natural resources
on which the welfare of this nations rests are becoming depleted, and in
not a few cases, are already exhausted” (cited in Jarrett, 1958: 51). This
conference became the vanguard for new reform spirit of stewardship
and reasoned action toward the natural world. It was the symbolic be-
ginning of the Progressive Era’s conservation and presservation senti-
ment (Hays, 1972).
The crux of early environmental policy was not philosophical but,
rather, very practical. The issue was how America might more efficient-
ly manage its natural resources. It became apparent to these early re-
formers that unrestrained and unfettered laissez-faire economics pro-
mised unremitting environmental damage and ultimately economic ruin
once the preponderance of natural resources were used up. This whole-
sale exploitation of nature for profit without sufficient regard for the
216 Restorative Justice Across the East and the West

larger social good or well-being of future generation was at the heart of


Roosevelt’s effort. For him and many others, as natural resources went,
so went the nation. Resource management and all the associated prac-
tices and assumptions such as wise-use, stewardship, preservation, con-
servation and restoration was primarily concerned with the protection of
natural resources for the practical and economic use of future genera-
tions. It was an ethic driven by utilitarian first principles of the highest
good for the greatest number of people and infused with immerging
principles of scientific management and genetic improvement (Sessions,
1995). Few of these early reformers had any illusions concerning the
deeper meaning of nature, so unabashedly trumpeted and epitomized by
their contemporary and mystical naturalist John Muir (Fox, 1981). His
writings were immensely popular and heralded the renewal of an older
transcendentalist belief in the intrinsic value of nature and the impor-
tance spiritual and numinous experiences with wildness (Shi, 1985). But,
in the minds of most early 20th century progressive environmental refor-
mers there were only two relevant, fundamental interests to be consi-
dered: “humans and natural resources” (Fox, 1981: 22).
In the century following these tenuous beginnings, resource ma-
nagement has dominated the conceptualization and practice of environ-
mental policy. Resource management became official government poli-
cy and has legitimated federal involvement in a full range of environ-
mental issues from the husbanding and efficient use of non-renewable
resources to the restoration of lands and ecosystem damaged by the
necessity of resource extraction or economic development. Immense
federal bureaucracies including the National Forest Service, Bureau of
Land Management, National Park Service, US Army Corps of Engineers,
and Environmental Protection Agency support this expanded federal
presence. “In short, there has grown and developed in America a re-
source management elite consisting of academic theoreticians, politi-
cian-administrators, and technicians who attempt to impose cultural pur-
pose on and thereby control nature” (Oelschlaeger, 1991: 284).
There are several core themes of Resource Management generally
and the Environmental Restoration Movement especially that provide
insight into their philosophical underpinnings. First, there is a funda-
mental belief that natural ecosystems have only instrumental or use va-
The Environmental Restoration Movement as an Issue of Justice 217

lue. That is, they exist for human purposes. Their continued being and
thus our efforts at conservation and restoration are only justified because
of the relative economic and survival value ecosystems have for the
human species. The earth is essentially dead matter. It is primarily, if not
exclusively, a collection of natural resources available for human ex-
ploitation and consumption (Sessions, 1995).
Secondly, homo-sapiens are related only externally to the natural
world. That is, ontologically, humans are separate from nature. They are
fundamentally different from the rest of the natural world. Of course
humans survive via biological processes like other species but, at the
level of culture, intelligence, consciousness, language and rationality are
in very real and practical senses above the natural world (Besthorn, 2001,
2002; Capra, 1996). In the hierarchical ordering of natural phenomena,
humans rank at the pinnacle of the ontological ladder. They have no
equal.
This anthropocentric bias of the human place in the natural order
leads logically to the third theme of resourceism and restoration ma-
nagement. By virtue of humanities special place in the great ordering of
beings and by virtue of their advanced skills, solutions of thorny envi-
ronmental problems are viewed as simple technicalities and fully sol-
vable within a techno-scientific framework (Besthorn, 2000; Besthorn
and Canda, 2002). Environmental solutions are human solutions which
have been technically developed and refined to better address how na-
tural resources may be better or more efficiently used. Human problem
solving of environmental concerns has been reduced to battles between
competing specialists who develop reasonable, rational and professional
technicalities of scientific expertise which are then applied to the ma-
nagement or rehabilitation of the environment.
The above topics lead to the final theme which has particular re-
levance to environmental restoration. That is, humans can, indeed have a
moral imperative, to restore and repair the natural environment. Practi-
cally, this means for example that loggers of old-growth forest have an
obligation to replant trees that have been cut. The fundamental principle
of instrumental value and economic development is not questioned.
Forests are still, by the end of each day, standing reserve for the use of
the human economic enterprise. Old growth cutting is technically and
218 Restorative Justice Across the East and the West

expertly justified on the grounds that these forests can be restored quite
adequately or replaced by technologically designed and managed tree
plantations (Drengson and Inoue, 1995). Restoration forestry is seen as
the only true forestry. In a similar way, real estate developers or coal
conglomerates are obliged to restore damaged acreage in exchange for
building or mining permits.
The language and practice of restorative environmentalism and re-
source management reveal a great deal about their underlying assump-
tions. The rhetoric of restoration, conservation, and stewardship often
means in practice the economic development of resources as quickly as
technically possible. This means altering and exploiting nature to pro-
duce more or better products for human consumption. Framing human/
nature issues as technical abstractions of management and restoration
reveals the strong human-centered bias. Nature’s value still lies only in
its usefulness to humankind and change involves improvement, develop-
ment or rehabilitation of an imperfect natural world.
Environmental restoration is not without its vocal critics. Robert
Elliott published a sharp criticism of the restoration thesis in his original
article and later book entitled Faking Nature (1997). Elliott argued that
even if a perfect copy of a degraded environment could be created, it
would still have less value than the original because it would, in fact, be
a manufactured fake or forgery. Eric Katz (1991, 1997) also has been
sharply critical of the restoration movement on several grounds. One, it
is inherently anthropocentric because it considers only the human prio-
rity in its perceived moral responsibility to restore natural environments.
Secondly, restoration policy leads to a world of artifacts—a world of
things and devices that have no intrinsic value but which carry in them-
selves only human intentions and purposes. Katz has also been critical
of restorative environmental policy because it creates the false assump-
tion that natural environment can, in fact, be restored. This human-
centered arrogance, if broadly inculcated in environmental policy and
the public sentiment will lead to a human culture that has an even grea-
ter sense of its omnipotence to exploit, manipulate and manage nature.
He writes clearly that restoration policy:
The Environmental Restoration Movement as an Issue of Justice 219

“presents the message that humanity should repair the damage that
human intervention has caused the natural environment. The message
is an optimistic one, for it implies that we recognize the harm we have
caused in the natural environment and that we possess the means and
will to correct these harms. These policies also make us feel good; the
prospect of restoration relieves the guilt we feel about the destruction
of nature. The wounds we have inflicted on the natural world are not
permanent; nature can be made “whole” again. Our natural resource
base and foundation for survival can be saved by the appropriate poli-
cies of restoration, regeneration and redesign (Katz, 1997: 94).”

Katz makes the compelling argument that the real danger with the
management of nature including its restoration is that it “results in the
impositions of our anthropocentric purposes on areas and entities that
exist outside human society” (Katz, 1997: 13). In this world, the only
phenomena will be human phenomena, the only vistas will be humanly
constructed and the only voice will be the human voice.

Hearing the Voice of Nature


Too often the retributive enterprise of the western justice system has
ignored or muted the voice of the victim while most of systemic
energies have focused on protecting the rights of the accused—in es-
sence insuring only the voice of offender. I contend that the Environ-
mental Restoration Movement must also find a why to dialogue and to
hear the voice of the victim. That is, environmental restoration must
listen to the earth’s voice and the voice of the earth’s non-human
inhabitants if it is to become a reasonably justified and not a wholly
anthropocentric approach to knotty problems of environmental degra-
dation.
The problem is not their speaking but rather our failure to hear. One
may legitimately ask how the Environmental Restoration Movement
might look as a careful and systematic element of environmental policy
if it were first to seek out and listen to the earth’s voice—listening—in
order to hear the earth’s pain, to acknowledge its concerns, to contem-
plate its desires, and to confess our failures. And, on those occasions
when great harm does occur; humanity’s restorative efforts shall first
220 Restorative Justice Across the East and the West

seek out and consider the earth’s voice rather than purely human evo-
cations regarding the best course of action.
For Friskics (2001: 395), the very essence of human existence is
constituted in and defined by humanities constant involvement with a
markedly complex system of relational events. To be human is to be
related to concretized, materialized and metaphysical reality. “There can
be no thing-in-itself except as it is abstracted from the relational milieu
of actual, concrete being with others.” Relational events are not synony-
mous with relationships, as we typical understand that term. Nor, are
relational events simply cognitional associations between one human
being and another. Relational events are physical, sensorial action ex-
periences with living beings; human and non-human alike. Indeed, rela-
tional events preclude anything that might resemble a kind of effortless,
individualized meeting of two separate ego-bound selves; as is com-
monly understood within dominant western ontology (Besthorn, 2002).
There is no laying hold of the self in isolation from the matrix of our
relational bonds.
Of critical importance for the current discussion is the perspective
that relational events assume address and response. That is, when rela-
tionships are concrete, sensual experiences with other there is no possi-
bility to relate on a purely ephemeral level. Relationships are not im-
mediately in the mind but rather are in the senses, in the body, in the felt
connection between living phenomena. In this sense, selfness is much
like the Buddhist notion of self as matter, sensation in addition to per-
ception and mental formation (Friskics, 2001). Networks of relational
events take place in the context of self-speaking fellow creatures, both
sentient and non-sentient. Friskics supports this view by suggesting
hearing the world and speaking to the world was the foundation on-
tology of early Judeo-Christian culture. In truth, the ancient Hebrew
term davar, originally used to refer to word, over time came to mean act,
event or in many cases the thing that voices. Clearly, Friskics finds
linguistic recognition of the vocative character of reality, the pervasive-
ness of the voice of things—a humbling realization that things are “first
and foremost, envoiced speakers” (Friskics, 2001: 394). For the ancient
Semitic tribes, their languages of the mountains and hills as breaking
forth into song were not mere figures of speech. For them, the sense of
The Environmental Restoration Movement as an Issue of Justice 221

being is in essence annunciation, speaking, singing, chirping, creaking,


warbling, whistling, whooshing and clapping. All of these are sounds,
which if one intently listens, can be heard in the natural world.
Phenomenologists are unambiguous in their assertion that to live, to
be, to be present in the moment means to be addressed. What’s around
us and what occurs to us addresses us. The beings and things we meet in
the natural world have something to say to us by their presence with our
presence. When we confront a river, a toad or a tree we have encoun-
tered a relational event, we are being spoken to and in the speaking, per-
haps most importantly, a claim is being made on us.
Abram (1996: 74) brings our attention to the Koyukon people of
northeastern Alaska and the mythological language of aboriginal Austra-
lia. As Abrams notes, the early non-literate (unwritten) or spoken langu-
ages, still used predominantly by these ancient peoples, are a profoundly
carnal phenomena “rooted in our sensorial experience of each other and
of the world.” Their language was not learned mentally but bodily. And,
the instrument of the learning was the vocative world. Touch and voice,
seeing and hearing, tasting and smelling are all relational events con-
current with our embodiment in the world and which created the context
for language. To touch the course bark of a tree is at the same time to
experience one’s own tactility “to feel touched by the tree” (Abram,
1996: 68). We are a part of this relational event. In fact, it could not be
otherwise. It is then no surprise that we still have vestiges of this early
iconic language when describing such things are a babbling brook, the
rustling wind and the pattering rain. Each of these phonetic descriptors
refers back to sensuous experience with and sounds of these things—
brook, wind and rain. Our words are, indeed, the sounds these things
make. To hear a brook is to hear babbling. To hear the wind is to hear
rustling. If one has ever listened intently to a soft spring rain gently
pelting a roof or window sill one begins to experience the voice with
which the rain is speaking.
Abrams argues that language is not in its essence creative but re-
flective. By this he means it reflects its embodiment in the world. One
could say language doesn’t create the world; rather, the world creates
language. He appeals to the work of Maurice Merleau-Ponty, the French
phenomenologist, to suggest that language can never be severed from
222 Restorative Justice Across the East and the West

direct experience of materiality. The impact of this is insightful for it


suggests that language and language relationships are not just the unique
property of the human species. Abram (1996: 80) describes this idea
eloquently:

The chorus of frogs gurgling in unison at the edge of a pond, the snarl
of a wildcat as it springs upon its prey, or the distant honking of Cana-
dian geese veering south for the winter, all reverberate with affective,
gestured conversations and soliloquies, moving us at times to tears, or
to anger, or to intellectual insights we could never have anticipated.
Language as bodily phenomenon accrues to all expressive bodies, not
just to the human. Our own speaking, then, does not set us outside of
the animate landscape but—whether or not we are aware of it—in-
scribes us more fully in its chattering, whispering, soundful depths.

Abrams and Friskics both affirm that modern, technological society


has lost much of its ability to listen to the natural world. There are many
reasons for this, not the least of which is that we live in an incredibly
noisy and invasive world. Televisions, radios, stereos, video games,
computers and all manner of industrial noise usurp the silence at every
turn. The world of artifacts—of humanly created things—is a cacophony
of noise. It all but drowns out the voices of creation which are rarely
intrusive and only occasionally deafening. When we hear other voices
they are our own voices—human voices and human constructions of
what is and ought to be. The contact we might still have with nature is
based on our technological interpretation of nature’s function and
structure and rests largely on our humanly conferred values and uses. In
this world, nature is no longer autonomous and eloquent. It stands mute,
“a silent storehouse full of inert stuff—an inventory of lifeless stock”
(Friskics, 2001: 401). We are involved, at best, in an interspecies mono-
logue with ourselves.
These philosophers—Abram, Friskics, and Bugbee—share remark-
able similarities in the way they sketch a path to greater engagement and
dialogical encounters with our fellow citizens of the natural world (cf
Abram, 1996; Friskics, 2001; Bugbee, 1958). This calling is intensely
personal, spiritual and intuitive and finds its deepest expression in the
The Environmental Restoration Movement as an Issue of Justice 223

manner in which we seek and then find the native anthem that is
nature’s voice calling back to us.

Restorative Environmental Policy: Listening First


The Restorative Justice Movement challenges the environmental policy
community to consider the critical need of incorporating a vital resto-
rative justice tenet into any comprehensive environmental policy ini-
tiative. It makes clear that environmental restoration, as the Restorative
Justice Movement has long known, must begin to consider how a sensi-
tive consideration and dedicated attention to the words of the victim can
be incorporated into viable and comprehensive environmental policies.
Restorative Environmental Policy, coming as it does, from a re-
formist and anthropocentric concern for control, problem solving and
expertise has failed to integrate into its efforts a deeper concern to hear
the voice of nature. If our earlier conclusions are correct—that there
exist very real possibilities of humans having greater dialogical encoun-
ters with their fellow earth citizens, then Restorative Environmentalism
must be careful not to succumb to the temptation to speak for the needs
natural world through purely human monologues of re-creation. The
sobering reality is that humanity knows very little about the complex
and elaborate structures of nature let alone how these interact in pro-
foundly intricate ways to form living ecosystems. The assumption that
human ingenuity is capable of a complete technological fix of degraded
environments demonstrates the arrogance with which modern culture
assesses the natural world. Human solutions to make the natural whole
again are just that. They are human solutions.
Regrettably, there seems to be a growing number of serious ecolo-
gists, environmental philosophers and policy advocates who dutifully
believe that human inventiveness can fully restore degraded ecosystems.
They believe this even though the destructive relationship between the
technological worldview and environmental crisis has been amply de-
monstrated. It is important to understand my uneasiness. The core
concern is not whether environmental restoration is an important prac-
tical and short-term response to environmental degradation. Few people
would agree with those who believe exploited or injured natural envi-
224 Restorative Justice Across the East and the West

ronments should be left in their degraded state. This is not the overriding
issue. Rather, the core concern is that arguments for reclamation based
on human benefit and interests alone fail to provide adequate moral and
ethical justification for the restoration of ecosystems. The moral dilem-
ma manifests itself most completely when restoration policy is consi-
dered an appropriate environmental response on purely human grounds.
In those instances, the real enticement is that the restoration thesis be-
comes a powerful justification for degrading ecosystems in the first
place because, presumable, humans can restore them to their original,
untrammeled perfection.
When the first requirement of restoration becomes the priority of
listening sincerely and intently to the voice of the earth, in all the depth
of consideration that may require, then restoration will not only be more
ethically grounded and thorough, but the decision to degrade environ-
ments will become even more cautiously considered except, perhaps, in
the case of meeting vital human needs (Naess, 1989). Hearing the voice
of the earth in questions of degradation and restoration establishes a
rival tradition of environmental policy. In this vocative perspective, all
parts of the world have the ability to speak to us and to establish
relationship with us. This view implies a radical equality among the
beings and phenomena of nature as well as a kind of universal kinship of
life in which humans do not dominate, exploit, or destroy (Katz, 1997).
Nature ceases to become simply the material of human happiness, rather,
it is intrinsically valuable in itself—a manifestation of the ineffable
spirit presence in all.

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14
____________________________

Restorative Justice, Empowerment


Theory, and Transformative
Spirituality: Searching for
Authentic Strategies in China,
Hong Kong, India, and Korea
MARTA VIDES SAADE

The transformative effect of restorative justice has a resonance with the


empowerment theory of social work. Yet, in its most basic articulation,
restorative justice depends on cultural realities and theological and spi-
ritual beginnings for effectiveness in its implementation. This article
examines the prior conditions for a transformative spirituality that would
sustain restorative justice solutions to social work challenges by exa-
mining the experience of specific communities.
When writing about restorative justice, the epistemic location of
both writer and reader are important to consider in order preserve the
230 Restorative Justice Across the East and the West

transformational potential of restorative justice in its thickest description.


In Spanish we say there are two ways to know: saber, to know
intellectually and conocer, to know in your heart. As a person of the
North, a lawyer and Roman Catholic ethicist living in the United States
of America, and as a person of the South, a Nahuatl danzante equally
rooted in Cuscatlan—the country known as El Salvador after European
contact—formed by stories of ancestors who migrated there from
Europe and Palestine, I know that the threads of authentic spiritual
sustenance and empowerment for a person can weave a complicated
tapestry. This modest essay is my granito de arena (grain of sand)
added to the conversation about restorative justice, empowerment, and
spirituality.
Adam Crawford has likened the “tendency within restorative justice
literature to extract examples (often drawn from around the world or
across time) which are abstracted and removed from the cultural en-
vironment which sustains them as butterfly collecting. Collecting
“pretty” or “exotic” examples used in a way similar to citing precedent
in the law or proof-texting of scripture obviates the need to “engage with
the less attractive aspects of social arrangement and human relations.”
(Crawford, 2002).
In an effort to avoid being one of those participants in a collection
of essays that often “speak and write about restorative justice initiatives
as if they, like the butterflies in the glass-cased collection, were easily
understood abstracted from the habitat which nourishes them” (Craw-
ford, 2002), I will begin by examining basic concepts within restorative
justice with particular attention to how understandings of the relation-
ship between individual and community stakeholders influence the
scope and limits of the way personal autonomy and responsibility func-
tion as a rationale for either re-integration or retribution as matters of
justice, using the USA as example.
I will then examine the tensions within empowerment theory of
social work regarding policies that balance care-control and empower-
ment-coercion. Finally, I will draw upon transformative spiritualities in
China, Hong Kong, India, and Korea, which hold possibility for sustain-
ning restorative justice solutions to some of the challenges faced by
social workers in serving their clients in those particular communities.
Restorative Justice and Transformative Spirituality 231

Transformative spiritualities that would sustain restorative justice solu-


tions to social work challenges offer prophetic understanding about the
notions of freedom, responsibility, obligation, and relationship between
the individual and society.

Restorative Justice, Rightly Understood


Theologically, restorative justice is justified by the mandate of shalom
or a condition of “all rightness” of things, based in covenant. Relying on
Perry B. Yoder and other Mennonite theologians, Howard Zehr des-
cribes the three dimensions of shalom, as including: (1) material or
physical well-being, (2) right relationships with other people and with
God, and (3) moral or ethical “straightforwardness,” referring to both
honesty in dealing with others and to moral integrity or a condition of
being without guilt or fault (Zehr, 1990). According to this biblical
alternative, the relationship between divine-human and human-human
relationships is transformed by the concept of Covenant, which forms
the basis and model for shalom. Covenant implies mutual response-
bilities. In the Jewish scriptures, adopted by both Christian and Muslim
people of the Book, this happens when out of God’s love, God repeated-
ly delivers the people, whether or not that salvation was earned or de-
served.
In the Christian scriptures, these relationships are transformed in
Jesus in a foundation act of salvation and freedom. This covenant
created the basis for a new community with its own operating principles
(Zehr, 1990). In theoretical discussions about restorative justice, the
covenant and Christian origins of restorative justice are acknowledged
yet not considered central to considerations of applicable justice theory
or models for justice systems (Van Ness, 1993). Theological fragments
are also scattered throughout literature connecting restorative practices
in criminal justice with peacemaking (Pepinsky and Quinney, 1991).
Certainly, the principles of restorative justice have a resonance with
other theologies and spiritualities found in the USA such as Roman
Catholic social teaching’s concern for the dignity of the human person
as made in the image of God (Hollenbach, 1979) and corresponding
principles of a revitalized sense of the common good (Hollenbach,
232 Restorative Justice Across the East and the West

2002). However, the contemporary theological justification for restora-


tive justice is covenant theology.
Restorative justice basically reframes the ethical question of how
justice is defined. This redefinition, in turn, requires a reframing of the
legal processes of justice. Some theorists recently have made a connec-
tion between a restorative justice approach to crime and the need for
social justice (Braithwaite, 2000a; McCold, 1996). The three Big Ideas
of Restorative Justice are:

1. The Principle of Repair: Justice requires we work to heal victims,


offenders and communities that have been harmed by crime.
2. The Principle of Stakeholder Participation: Victims, Offenders, and
Communities should have the opportunity for active involvement in
the justice process as early fully as possible.
3. The Principle of Transformation in community and government
roles and relationships. We must rethink the relative roles and
responsibilities of government and the community. Government is
responsible for promoting a just order and community for establi-
shing a just peace (Van Ness and Strong, 2006; Schiff and Baze-
more, 2002).

Using the juvenile justice system in the USA as a concrete example,


these ideas have developed over several decades of experimenting with
the use of practices described as restorative. The first contribution of
restorative justice was to shift the focus from the offender to the victim.
The emphasis was on restitution and the need for the offender to make
amends for his or her actions. In this context, restorative justice had a
natural strategic alliance with activists within the “victims’ rights”
movement. The initial projects were part of victims’ rights projects
primarily responsible for administrating state funds used for victim-
witness compensation in criminal cases.
In time, a Victim Offender Mediation Association formed to ex-
change information about mediation of victim-offender meetings. Dis-
pute resolution programs in universities considered the theory and skill
sets necessary for the primarily facilitative mediation that was part of
Restorative Justice and Transformative Spirituality 233

the projects. While the “community” was acknowledged as a stake-


holder, the actual participation of the community was more abstract. The
language of restoration was used regarding the practice of restitution and
making amends. Most participants considered the “transformation” that
would take place to be an event that was part of the mediation between
victim and offender.
Current practices include: fully restorative practices—such as peace
circles, family group conferencing community conferencing; mostly
restorative practices—such as victim restitution, victim-offender me-
diation, victim support circles, truth and reconciliation commissions,
victimless conferences, positive discipline, therapeutic communities;
and partly restorative practices—such as crime compensation, victim
services, offender family services, family-oriented social work related
community service, youth aid panels, reparative boards, and victim
sensitivity training (Walgrave, 2000). A limited understanding of “trans-
formation” continues with partly restorative practices as the most pre-
valent. The possibilities for transformation that include social change are
contained in the fully restorative practices.
Based on this understanding, theoretical discussions recognize
origins of restorative justice in the theological concept of covenant and
its obligations. (The Biblical definition of covenant is a relationship
between God and God’s people in which each party gives generously in
order to remain in a “right relationship;” the term is used here in a
spiritual context to contrast it to legal definitions in which covenant is an
agreement containing reciprocal terms.)
In its USA legal implementation, restorative justice remains based
in a system of rights, inconsistent with covenant. This dissonance signi-
ficantly affects the understanding of role for the “community” stake-
holder. The rights-based framework merely shifts the emphasis from
solely victim’s or society’s right to retribution, to include the offender’s
responsibility and the need for involvement of what is innocuously
described as “the community” in the re-integration of the offender into
relationship with the victim and the community.
In evaluating programs, the question becomes reintegration into
what community? What does this aspect of the reparation require?
Community involvement is reduced to crime prevention. Program goals
234 Restorative Justice Across the East and the West

are considered impossible to measure and lacking in vision practice


(OJJDP, 1996). While rights-based framing might make the alternative
less of a threat to the underlying principles of established legal struc-
tures, such a view dilutes the transformational potential of restorative
justice, correctly understood. It separates restorative justice from its
most prophetic insight. Taking the theological understanding of cove-
nant and its obligations as foundational to restorative justice seriously
would alter this result most noticeably in the role of the community
stakeholder.
In the discourse of legal justice, restorative justice is usually cate-
gorized as “alternative dispute resolution” or ADR, to distinguish it
from the rights based system of civil rights, with its correspondingly
retributive criminal justice system. It is worth noting that in the dis-
cussions about what restorative justice offers, circles and conferences
modeled after indigenous practices occupy a prominent place despite the
reality that restorative justice in practice is more likely to be victim-
offender mediation. Furthermore, as Judge Raymond D. Austin, empha-
sizes, “Those of you who are interested in alternative methods of dispute
resolution may find Native American peacemaking useful, but be sure to
not call it ADR, because to Native Americans the adversary system is
ADR” (Austin, 1995). The Navajo or Dine system of peacemaking oper-
ates within a context of sacred systems and social responsibilities.
Peacemaking seeks to reestablish a way of relating in harmony with
a particular set of sacred commands and within a world view based on
the concept that all things are inter-connected and which explains the
meaning of words like balance, harmony, and healing in the idea of
returning the community to this state of balance.
In peacemaking, the resolution of the dispute takes on a sacred
meaning. The Peacemaker is not present to adjudicate as a judge or
arbitrator. Neither is s/he a “neutral” as in conventional USA mediation.
In fact, the Peacemaker usually knows the parties, and their families,
which is considered a strength. To export these ideas out of their cultural
context is to engage in over-extended borrowing. “Cultural differences
between Native and non-Indian cultures make the process of cross-
cultural importation treacherous at best, and altogether futile at worst.
This is true even if, as most borrowing proponents assume, alternatives
Restorative Justice and Transformative Spirituality 235

to the prevailing US legal system are desirable, and tribal peacemaking


is working well within Indian Country” (Goldberg, 1997). The result is a
failure to find an authentic foundation for restorative justice that allows
it to have its full transformative impact within both informal social
systems and the formal the legal system. My point is that peacemaking
is not adequately defined by reference to what it is not: not adversary,
not retributive. Similarly restorative justice cannot be defined by re-
ference to what it is not: not retributive, not peacemaking. Neither can it
be defined in terms of a system such as peacemaking to which it bears
only a superficial resemblance.
Restorative justice as practiced, both informally on the periphery of
the legal justice system, as well in relation to the USA legal justice
system, requires a justification on its own terms. Several models have
emerged in the attempt to articulate both the diverse views among
restorative justice theorists on what a restorative justice approach must
include as well as how restorative justice relates to the existing justice
system.
In the criminal justice system of the USA, four models summa-
rized by Daniel Van Ness are helpful in observing the impact of taking
the theology and spirituality of covenant seriously in the construction of
formal systems. (Van Ness, 2003). These are the unified model, the
dual-track model, the safety-net model, and the hybrid model. The most
interesting model for concerns of empowerment and transformative spi-
rituality is the unified model, in that it makes assumptions about the
human person and notions of freedom, responsibility, obligation, and the
relationship of the individual to society. These notions are consistent
with theological concept of covenant and the obligation it creates in the
individual who follows this spiritual tradition. This pushes the question
of core values uncompromisingly.
Briefly, these distinct models can be summarized as follows. The
unified model is a unitary one in which restorative justice is the only
approach available. For example, in criminal justice, all steps in the
justice process would include a consideration of the victim, offender,
and community stakeholders and leave open the possibility of repair and
transformation: from the arrest, through adjudication of guilt and in the
imposition of any sanction. In a social work context this might be seen
236 Restorative Justice Across the East and the West

as part of the consideration in counseling of battered spouses, or in


managing parents who seem unable to care for their own children or
their aging parents. Extreme intervention would be a last resort. Gordon
Bazemore and Lode Walgrave support the idea of one unified system
(Bazemore and Walgrave, 1999).
The dual-track model is one in which both systems operate simul-
taneously while the participants, and particularly the offender, move
back and forth as necessary, e.g., guilt is adjudicated, but before sen-
tencing the offender participates in a victim-offender mediation agreeing
to pay restitution, and then returns to a court hearing for imposition of
sentence.
The safety-net model contains some of the structural elements of the
dual-track model, except the safety-net model is definitive in its pre-
ference for restorative justice as the first option. Finally the hybrid
model is an approach that progresses from one system to another, some-
times depending on the step in the process and other times depending on
whether the offender is a virtuous actor, a rational actor or an income-
petent or irrational actor (Braithwaite, 2002a).
While there is some agreement that restorative justice could work
systemwide, views about how this should be accomplished or what fun-
damental principle should be emphasized vary. Gordon Bazemore and
Sandra O’Brien (2003) embark on a quest to articulate a restorative mo-
del of rehabilitation. To the extent that it includes capacity building for
the benefit of the offender, rehabilitation is the mainstream criminal
justice response to wrong-doing most analogous to empowerment of the
client in a social work context. Bazemore and O’Brien’s particular con-
tribution is to examine restorative conferencing as an example of rehabi-
litation that involves stakeholders in decisionmaking and transformation
of the roles and relationships in the justice system. In outlining theories
of this model as supporting the three principles of restorative justice, one
part is not part of the outline: There is no intervention or outcome theory
for the community role from this perspective.
Another concern that is voiced by supporters of the restorative mo-
del is the question of community values. Restorative justice often up-
holds an ideal of justice in a just society. The ability to communicate the
violation of moral values underlying the offender’s actions depends
Restorative Justice and Transformative Spirituality 237

upon the strength of values in the community (Walgrave, 2005) and


upon community solidarity in transmitting those values. For O’Neill
(1996), community solidarity is based on citizens’ vulnerabilities and
needs. Community solidarity is a commitment to companionship and
reciprocity of support characterized by empathy and mutual trust.
In the context of a human rights-based system in the USA, a bridge
between the spiritual foundations for restorative justice and the formal
legal justice system is necessary. A purely rights-based system that
requires everyone be punished according to his or her due mandates
punishment in the face of wrong-doing and leaves little room for the
generosity of covenant. The notion of community solidarity helps link
the concepts of human rights and spirituality.
The community responds to wrongdoing with the resources neces-
sary to assist in reaching out to an offender who might otherwise be lost
to that community because of indifference. For O’Neill (1996), the
structural obligations of justice include rejection of direct and indirect
injury. Indirect injury occurs through indifference and neglect.
Instead of community representatives asking “What assurance of
safety is owed to me?” these stakeholders must ask themselves as
rational agents: “What ought I to do, given that my action (and inaction)
impinges on others, and may destroy or erode their capacities for ac-
tion?” (Vides Saade, 2006).
Communities, in fact, can include constraining, exclusionary, and
repressive forces. So we need to examine community values, actions,
and practices that might have led up to the wrongdoing with which the
restorative process is concerned.
The role of the community in creating any conditions that contri-
buted to the event requires a focus on those practices. For example, if
misogynist values in the culture create a tolerance for spouse battering,
those values would need to change and be addressed—in the media, in
the public discourse, and in social services. Community participation in
the system of justice is essential to the possibility of needed social
change. Out of community participation in a restorative process comes
community empowerment.
238 Restorative Justice Across the East and the West

Empowerment Theory
In October, 2004, the International Association of School Social Wor-
kers (IASSW) and the International Federation of Social Workers
(IFSW) adopted a document entitled “Global Standards for Social Work
Education and Training” (IASSW and IFSW, 2004). This document is
intended to be a living document articulating a definition of social work,
and core purposes and functions of the social work profession. The
document is designed to be used as a guide for educating and training
social work professionals where no local guidelines exist. The document
is useful in its articulation of standards that have been critically consi-
dered and that resonate with restorative justice principles in addition to
other social justice principles. The guidelines support recent scholarship
that emphasizes a historical and practical purpose of empowerment as
core to the social work profession, despite a lingering perception that the
social work is a profession that is coercive at its core with tendencies
toward colonial attitudes (Burford and Adams, 2004). The definition of
social work contained in the document states:

The social work profession promotes social change, problem solving


in human relationships and the empowerment and liberation of people
to enhance well-being. Utilizing theories of human behavior and social
systems, social work intervenes at the points where people interact
with their environments. Principles of human rights and social justice
are fundamental to social work (IASSW and IFSW, 2004).

Clearly the standards contain assumptions about human person and


notions of freedom, responsibility, obligation and relationship between
the individual and society. These core purposes are to:

(1) Facilitate the inclusion of marginalized, socially excluded, dispos-


sessed, vulnerable and at-risk groups of people.
(2) Address and challenge barriers, inequalities and injustices that exist
in society.
(3) Work with and mobilize individuals, families, groups, organiza-
tions, and communities to enhance their well-being and their pro-
blem-solving capacities.
Restorative Justice and Transformative Spirituality 239

(4) Assist people to obtain services and resources in their communities.


(5) Formulate and implement policies and programs that enhance
people’s well-being, promote development and human rights, and
promote collective social harmony and social stability, insofar as
stability does not violate human rights.
(6) Advocate for, and/or with people, changes in those policies and
structural conditions that maintain people in marginalized and vul-
nerable positions, and those that infringe the collective social har-
mony and stability of various ethnic groups, insofar as such stabi-
lity does not violate human rights.
(7) Engage in social and political action to impact social policy and
economic development, and to effect change by critiquing and eli-
minating inequalities.
(8) Enhance stable, harmonious and mutually respectful societies that
do not violate people’s human rights.
(9) Promote respect for traditions, cultures, ideologies, beliefs and re-
ligions amongst different ethnic groups and societies, insofar as
these do not conflict with the fundamental human rights of people
(IASSW and IFSW, 2004).

The challenge for social work professionals becomes how to balance the
tension between care and control, and between empowerment and co-
ercion (Burford and Adams, 2004). Braithwaite’s hybrid model, often
illustrated as a pyramid, offers one useful framework (Braithwaite,
2002a). For Braithwaite (2002b), the threat of state intervention must
remain in the background. For example, in a child welfare case in-
volving the high level of social control that might be exerted by a social
worker limiting a parent’s access to his or her child, the more prevalent
regulatory formalism approach would allow for an ultimatist (extremely
controlling) social work that threatens the parent with loss of her child.
Compare this to a collaborative social work which would work with the
parents and others within processes such as family group conferencing,
to prevent escalation of the level of state intervention. Here the assump-
tion would be that the parent is a virtuous actor open to persuasion until
her actions proved otherwise (Adams and Chler, 2004).
240 Restorative Justice Across the East and the West

When working within a particular society or community, especially


outside the Western European community, the difference in how culture,
beliefs, religions, and customs are integrated in formal policy can be of
significance in formulating models of restorative justice. Knowledge of
how these belief systems might constitute resources or obstacles to
growth and development, or empowerment are considered core social
work curricula (IASSW and IFSW, 2004). The social work profession
promotes social change as well as harmony in human relationships and
the empowerment and liberation of people.
To the extent that theological and spiritual beginnings are founda-
tional to restorative justice, close attention to this aspect of restorative
justice is in order

Transformative Spirituality
The contribution of religious ideas in understanding how restorative
justice views the person and notions of freedom, responsibility, oblige-
tion and relationship between the individual and society is a foun-
dational one. The emphasis that both restorative justice advocates and
social work professionals place on social justice means those ideas need
to be understood in their particular social and political context. In a
Western context, the religious concepts that inform understandings of
restorative justice reflect differences between indigenous or First Nation
religious traditions and a world view of persons in society as inter-
dependent, and a predominantly Christian view that makes use of Jewish
scripture that informs all “people of the book” Jewish, Muslim, and
Christian, and yet comfortably co-exists in the context of a worldview
that begins with the rights of individuals. Doing theology in an Eastern
context resonates with these tensions in that indigenous Eastern reli-
gious traditions emphasizing a less individualistic world view exist
simultaneously with Christian traditions that have been more recently
imported and that are sometimes viewed as a colonial remnant.
The distinction between Western and Eastern contexts is worth
noting. In the West, the predominant social context is one beginning
with the individual. Political and legal structures reflect that view. Chris-
tian traditions accommodate that view. Indigenous world views inform
Restorative Justice and Transformative Spirituality 241

that context, sometimes more completely than others. In the East, the
predominant social context is one which begins rooted in indigenous
traditions that include a range of understandings regarding the interde-
pendence of persons within society and family.
The example of that integration is illustrated by the example above
of a definition of the social work profession that would easily include
the value of harmony. Christian traditions are primarily viewed as part
of a colonial legacy more accepted in westernized nations. Political and
legal structures reflect that particular historical context. Only recently
have Christian traditions in the East included liberating theologies. And
yet, the most interesting feature of this co-existence is that, in contrast to
the West, doctrinal purity is not the rule. When searching for religious
sources that provide sustenance and empowerment, Asian women have
approached the many different sources that contribute to the survival of
themselves and their communities. This de-emphasis on orthodoxy and
emphasis on the elements of culture and religion that provides women,
as well as other marginalized groups, a way to claim their humanity has
been referred to as “survival-liberation centered syncretism” (Chung,
1993).
Transformative spiritualities that would sustain restorative justice
practices might reflect particular Christian doctrinal teachings such as
covenant and dignity of the human being. Likewise these spiritualities
might reflect particular indigenous doctrines such as han-pu-ri. Both
indigenous and Christian traditions must be critically appraised. In her
critique of patriarchal coercion that is a legacy of Confucian familism,
Nam Soon Kang points out that just as individualism is problematic in
the West, so communitarianism and human-relatedness might be con-
sidered problematic in the East (Nam, 2004). I suggest the over-arching
source for transformational spiritualities in the East is best described by
the life-centered movement toward survival-liberation centered syncre-
tism. To begin the dialogue, I offer the following modest examples.

China
Traditionally, the images of deity for the Chinese people included two
general categories of spirits: official and popular. Deities such as the
242 Restorative Justice Across the East and the West

Spirit of Heaven and ancestral spirits are part of the official beliefs
which were prescribed by the state. The Emperor was considered the
Son of Heaven and able to communicate directly with the Spirit of
Heaven. Popular Gods such as the God of War and the God of Trade
were part of magical cults that retained an impersonal character.
Popular religion is not a religion of the book. It is a religion of the
people with a crucial political relationship to orthodox religion (Feucht-
wang, 2001). The masses of people—poor and rural, worshipped popu-
lar deities in their village temples. During the Cultural Revolution,
1966-1976, these religious elements were sacralized in a political reli-
gion in which Mao Ze-dong replaced the Emperor in ritual practices
reminiscent of those dedicated to the Son of God. Contemporary Chi-
nese citizens continue to feel normative pressure from above.
Confucianism was the dominant official religion since the Han
Dynasty co-existing over time with Buddhism and Taoism (Zuo, 1991).
The significance of Confucianism is as proscribing an ethical way of
living. Its philosophers, such as Xunzi, have a well-developed concept
of shame and honor. Norms for honor are established in light of an
affectionate concern for the well-being of one’s fellows in the com-
munity. Shame is concerned with a failure to keep one’s word regarding
actions, and avoiding excess at the expense of that community. And yet,
shame is not the same as inward-directed Western guilt. It has no
relationship to sin in the Western sense. Shame, chih, is outward directly
related to self-respect in relation to others (Cua, 2003).
This prevalent understanding of shame might provide a foundation
for restorative justice and yet, this must not be confused with the
theological concept of Christianity. The Confucian view of the human
person is an optimistic one. Antisocial thought develops before anti-
social behavior. Even behavior can be cured. Education of a person’s
way has been the traditional way. Because self-respect is connected to
relationship with others, intrusion into a person’s life is accepted. The
tradition of “greatest unity” provides a kind of autonomy in which
uniformity of mind and act is achieved. Interpretation using classical
Western theories of criminology would seem culturally anachronistic.
For these reasons, initial intervention is extra-legal. The problem
lies not in determining what constitutes community given that village,
Restorative Justice and Transformative Spirituality 243

neighborhood or work group are concrete containers for community.


The tension lies in the determination of what degree of public inter-
vention is useful at any given point in a person’s learning process.
Excessively public intervention too early in the process or when anti-
social thinking or actions are nascent, results in labeling that might
prove detrimental to a change in behavior. Community involvement
takes place through neighborhood committees that, by a Western view,
appear as informal approaches although in China are formally estab-
lished. The family is viewed as a central place for education, and there-
fore the pressure on the family to assist in changing an individual’s
behavior can be extreme. In criminal matters, only serious violations
would warrant state intervention. Even after adjudication and sentencing,
the responsibility of the family continues, making the family part of the
formal system of justice (Chen, 2004). The role of the social worker in
guiding a balance between coercion and empowerment, for both clients
and their families or communities, while respecting the spiritual tradi-
tion and sense of community, seems crucial.
Until recently, Christians in China have been rural people. Nearly
90 percent of the Chinese population remains rural. During the Cultural
Revolution, many rural Christian churches were rehabilitated. What
emerged since the early 1990s were official Christian church organiza-
tions: the “Three-Self Association” and the “Catholic Patriotic Associa-
tion” as well as underground Christians outside the officially sanctioned
groups. Recently, a new type of Christian is emerging, referred to as
“Boss Christians.” These Christians are young and better educated city
dwellers. Their economic position allows them to make contributions to
develop their churches. Their social connections allow them to have
international influence. Unlike the previous three groups, they do not
consider it necessary to hide their affiliation with the Protestant and
Roman Catholic Christian traditions (Chen and Huang, 2004). These
changes have the potential of making Christian spiritualities of covenant
and right relationship, as well as the optimistic view of human dignity as
being based in the image of God, complementary to a Confucian ethic in
sustaining restorative justice models.
244 Restorative Justice Across the East and the West

Hong Kong
Religious practices, similar to social, political and economic policies in
Hong Kong, present the pervasive “China factor,” that is, the anxiety
related to changes that might occur during the first fifty years of the
transition between British and Chinese governments beginning in 1997.
Negotiations in 1984 resulted in an agreement between the British and
Chinese governments making Hong Kong a Special Administrative
Region (HKSAR) of China at the time it was returned to the Chinese
government in 1997.
Still, this did not reassure the Protestant and Roman Catholic Chris-
tian Churches in Hong Kong which suspected that the ideological dif-
ferences between the Chinese Communist Party and the Christian world-
view would inevitably clash resulting in the regulation of the Christian
Churches as official state churches. The thinking was that these chur-
ches would be cut off from their particular ecclesiastical structures and
doctrinal dialogue such as what happened in China. Such regulation is
viewed as oppressive by the Christian churches in Hong Kong. Relevant
to the social justice goals of restorative justice, the response of both
Protestant and Roman Catholic Christian Churches was to reaffirm their
respective commitments to social justice principles as articulated in the
teachings of the World Council of Churches 1974 Lausanne Conference
by the Protestants, and in a 1997 pastoral exhortation from the Hong
Kong prelate “March into the Bright Decade.” The result was active par-
ticipation of Christians in the promotion of democracy, particularly in
the election work during the transition period (Chan and Leung, 2000).
For those already engaged in practices that could become estab-
lished as restorative justice practices, the transition in governance was
viewed with concern that retributive practices would seep into the Hong
Kong legal justice system consistent with Chinese principles such as
“rule by the people,” the death penalty, “leniency for self-confession,
severity for resistance,” “toeing the Party line” regarding crimes against
the state, and the loss of “presumption of innocence” (Davidson and
Wang, 2000).
Today, in Hong Kong, under the Community Service Order (CSO)
program, with the consent of the offender, courts have the option to sen-
Restorative Justice and Transformative Spirituality 245

tence offenders, aged 14 years or older, to perform unpaid community


service in lieu of or in addition to other sentences.
CSO advocates attribute the increasing view that CSOs are rehabili-
tation and welfare oriented to the reaction of possible repression and a
corresponding appreciation for any models that include increased civil
liberties and judicial independence (Wing Lo and Harris, 2004). The
view of the formal justice system in China as being solely retributive
belies the legacy of formal community structures bestowed by Confu-
cian ethics. CSO advocates consider CSOs to be “an indigenous attempt
informed by a blend of cultural sensitivity and knowledge that has been
gained overseas in particular from England and Wales” (Wing Lo and
Harris 2004). Perhaps knowledge is also to be gained overseas from the
mainland and vice versa. Dialogue between restorative justice advocates
in mainland China and Hong Kong might elicit some of the stakeholder
concerns that are sustained by spiritual traditions and customs not
immediately visible to the observer of the legal justice system. The sour-
ces of responsive regulation for a balance between coercion and em-
powerment might increase with such dialogue.
The traditional religion of Hong Kong is considered to be popular
Buddhism, influenced by Confucianism. Women-defined popular religi-
osity includes the cult of Kwan In, sometimes Kuan-yin, (Chung, 1993)
as a guide to interpreting Buddhism’s Eight-Fold Path. In Mahayana
Buddhism, the central figure making liberation available to all by faith
of love is the Bodhisattva Avalokitasvara, the embodiment of compass-
sion who hears the Cries of the World (Tay, 1976). Kuan-Yin appeared
as early as 185 in Sanskrit writings as a male deity. She was transformed
into a female deity around the fifth century. Kuan-Yin can take whatever
form necessary to guide her devotees to Enlightenment. In the Bud-
dhism of faith, Kuan-Yin is a refuge and protector who suffers vica-
riously out of compassion because she suffers with all sentient beings.
Her compassion includes the practice of non-attachment in order to
achieve the oneness of Samadhi. When asked about the characteristics
of the Dharani (mantra) for awakening a compassionate heart toward all
beings, the Thousand Handed Dharani Sutra stated that Kuan replied:
246 Restorative Justice Across the East and the West

(1) It is the great compassionate heart; it is the heart of non-discrimi-


nation;
(2) It is the unconditioned or spontaneous heart; it is the heart of non-
attachment;
(3) It is the heart of contemplating all things as unreal; it is the heart of
reverence;
(4) It is the heart of humility; it is the heart of non-confusion (or Sama-
dhi); it is the heart of not clinging to heterodox views and
attainment; it is the heart of unexcelled perfect enlightenment …
(5) If you can really achieve non-duality, you are Kuan-Yin (Tay, 1976).

This idea that Kuan-Yin is the awakening of a person’s self-nature is an


important counter-point to understanding the meaning of suffering in
Buddhism so that it does not create a situation in which persons cling to
their suffering in situations, such as domestic violence, out of a mis-
interpretation of what compassion requires. The idealization of suffering
is not the Buddhist way. In fact, releasing a clinging or attachment, to
that suffering in order to allow understanding of things to change the
way emotions are experienced is consistent with the Four Noble Truths
of Buddhism. An analysis of Buddhist cultural understandings for do-
mestic violence survivors creates a transformative possibility including
the space for survivors to take action to live more fully, while at the
same time compassionately allowing for services to perpetrators of
violence in order to stop the cycle of violence (Wong, 2002).

India
For social workers in India seeking to empower their clients, the religion
of their clients plays a role in the extent to which clients perceive they
have an ability to determine their own fate. In a country that is mostly
Hindu, there is an inevitability of karmic consequences in this current
life for actions of a past life. The majority of social work clients in India
are uneducated and poor, while the social workers come from middle or
upper middle class backgrounds. The class into which persons are born
has religious implications for the Hindu social worker and client in
Restorative Justice and Transformative Spirituality 247

terms of acceptance of karma or the belief that the sum of actions in a


previous life determines one’s position in the present life. Social wor-
kers trained in a profession that came to India in the 1930s through
American (United States of America) educators, tend to attribute the cir-
cumstances of one’s life in terms of free will and responsibility until an
inexplicable tragedy, such as fatal illness, ensues, in which case the
reliance is on karmic fate. Because Hindu clients tend to ascribe the
cause of their life situations to fate, they have little motivation to create
restorative justice solutions to make changes to those circumstances but
instead bow to the force of this external will.
When responsibility is perceived as making a difference in relation-
ship to spiritual consequences, Muslim interpretations of naseeb or
taqdeer and a Christian interpretation of destiny by social workers has
motivated social workers to more comfortably guide their clients gra-
dually to the point where clients were making their own decisions. For
social workers seeking to empower their clients, the reliance on external
causes to explain life situations has been usually viewed as negative,
thought to lead to apathy in fashioning solutions. But karma, can be a
double-edged sword. Dharma, or duty in life, also means one need not
be overwhelmed by life events (Contursi, 1993)
In India, the class and caste differences also have cultural-religious
implications. For those dalits, meaning the downtrodden, a casteless
term adopted by those in the Untouchable caste, who were once rele-
gated to the lowest social, economic and ritual status, related to the
rationale of karma which in Hinduism referred to the belief that one’s
station in the present life depended on one’s actions in a past life. A
prominent Dalit leader, B.R. Ambedkar, urged a re-interpretation of
karma in the Buddhist tradition (Aleaz, 2004). He converted to Bud-
dhism himself shortly before his death in 1956 and urged that his fellow
dalits do so as well. Ambedkar challenged the inherited character of
karma on the basis of the science of heredity: if a child inherits the
physical genetic material of his or her parents, then why not the soul? If
this is not so, then the karma which has consequences is the karma
flowing from deeds in this life. Therefore, like other liberation theolo-
gies, Ambedkar asserted that the oppression of dalits was not justified
by karma and was caused by problems in the social order.
248 Restorative Justice Across the East and the West

By this syncretism of religion and politics, and mass conversions


commenced in 1956 when the first generation of educated dalits sought
an alternative to their life situation, and they continue to the present.
Through an emerging Christian liberation theology, dalit conversions to
Christianity have also been supported by the political movement for
human rights. Through Jesus Christ, compassion is bestowed upon the
suffering of the dalits while Jesus’ death and resurrection can be
interpreted as having made the dalits his suffering servants at the same
time that it empowers them to continue their struggle against oppression
(Aleaz, 2004).
Social workers of middle and upper middle classes are well advised
to be nonjudgmental about the dalit movement and to actively support it
in order to maximize the benefits to their clients. The social justice
implications of the dalit movement make it a potential source for the
foundation for restorative justice practices including advocacy for
reparations for the extreme discrimination of the past.

Korea
Out of the Christian and Buddhist land of South Korea, a theology and
spirituality of the people have emerged with great possibilities for
sustaining restorative justice practices: this is minjung theology.
Minjung is the Korean word for oppressed peoples though it is a
more expansive political term and embodies groups such as the prole-
tariat. Minjung include the:

1. oppressed, exploited, dominated, discriminated against, alienated and


2. suppressed, politically, economically, socially, culturally, intellecttu-
ally,
3. women, ethnic groups, the poor, workers, farmers, and even intellec-
tuals (Chung, 1993)

The term Han-pu-ri, meaning liberation, comes from Korean shamanis-


tic tradition which referred to wandering ghosts, Han, who had unresol-
ved oppressions that a community would resolve through negotiation
Restorative Justice and Transformative Spirituality 249

and ritual. Korean minjung theologian Hyun Young Hak describes the
experience of Han as:

a sense of unresolved resentment against injustice suffered, a sense of


helplessness because of the overwhelming odds against, and a feeling
of total abandonment (“Why has Thou forsaken Me”), a feeling of
acute pain and sorrow in one’s guts and bowels making the whole
body writhe and wiggle, and an obstinate urge to take “revenge” to
right the wrong all these constitute” (Hyun, 1985).

This spirituality is one which encourages liberation of constraining


bonds in the lived experience of a human person. The possibilities for
restorative justice practice in social work that empower clients and
further social justice goals are clear. Empowering practice means dea-
ling with social structures that are not life-giving as well as transforming
oneself to become an instrument of the liberation.
A special power—empowerment—develops when nations join to-
gether united on behalf of human rights and social justice. The Fourth
Dalit-Minjung-Aboriginal Theological Dialogue that took place in
Chennai, India, August 5-8, 1999 is an excellent historical example. The
gathering included representatives from Australia, India, Korea, Cuba,
and the Netherlands (Fernez-Calienes, 2000).

Conclusion in a Sentence
In Tlaneztia In Tonatiuh (“May Your Sun Shine Brightly,” Traditional
Nahuatl greeting).

Note
Special thanks to Katherine van Wormer for this gracious invitation, to my
mentor Sue Scher, for her astute encouragement in my work of integrating
disciplines, to my colleague Kathryn Poethig who taught me it is sometimes a
good thing to get lost in China, and to my complice Marta Benavides and the
spirit of all the women I met in 1995 at the United Nations Fourth World
Conference on Women: Action for Equality, Development and Peace. To these
and all the strong women in my life I owe my chispita electrica.
250 Restorative Justice Across the East and the West

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15
____________________________

Spiritual Dimensions
of Restorative Justice:
Teachings of the Dalai Lama
WAYNE EVENS

Other chapters in this book and other authors (Gilligan, 1996; Achilles
and Zehr, 2001; Braithwaite and Roche, 2001; Sullivan and Tifft, 2001;
Braithwaite, 2002; Strang, 2002; Christie, 2003; Harris, 2003; Mc-
Laughlin et al., 2003; Zehr and Mika, 2003; Walgrave, 2005; Sherman
and Strang, 2007) have addressed the theory practice of restorative
justice. This chapter will focus on some spiritual aspects of restorative
justice.
Restorative justice proposes a paradigm shift in the administration
of justice. The fundamental issue in the debate between restorative jus-
tice and retributive and rehabilitative justice can be seen as a debate
about effective social control. Retributive justice seeks to properly pu-
nish the offender for misdeeds, as it represents state power.
254 Restorative Justice Across the East and the West

Rehabilitative justice inserts treatment into the system with the goal of
reforming the offender.
Restorative justice theorists critique retributive and rehabilitative
justice as being about state power (Braithwaite, 2002; Strang, 2002), as
being over professionalized (Christie, 2003), as being insensitive to the
needs of victims (Achilles and Zehr, 2001), as being ineffective (Gilli-
gan, 1996; Braithwaite and Roche, 2001; Strang, 2002; Harris, 2003;
McLaughlin et al., 2003).
The conflict between retributive justice and restorative justice, at its
base, is a conflict between the desire to control and the desire to reduce
suffering. State based justice is as much, or more, about state power as it
is about reducing suffering or preventing crime (Strang, 2002). By
punishing the perpetrator, retributive justice doubles the harm done; by
seeking to right wrongs done restorative justice seeks to repair the harm
done (Walgrave, 2005). It remains to be seen how effective this appro-
ach will be.
Schiff and Bazemore (2001) suggest four visions for the future of
restorative community justice. One of which is that this movement will
become a sort of footnote in the history of justice. They suggest that the
future of the movement will depend upon the vision of restorative
community justice practitioners. This chapter seeks to expand that vision
by looking at the spiritual dimension of restorative justice. It argues that
restoration needs a vision of love and compassion if it is to change how
justice is understood and delivered.
Arendt (1964) addresses the banality of evil. Neiman (2002) frames
the issue of evil as a historic not a moral problem. Gilligan (1996) notes
how ordinary the men in maximum security prisons, who have
committed extremely violent acts appear. The current system constructs
criminal acts as evil and seeks to punish the evildoer (Gilligan, 1996).
Gilligan argues that current justice with its emphasis on punishment is
ineffective in addressing the causes of crime.
Restorative justice grows out of frustration with the rule-driven
alienating system of state administered criminal justice system. Our
society seeks to be rule driven. We have substituted ethics and/or laws
for virtue. In an effort to create security, we want clear rules that tell us
what to do, and more importantly, rules that tell others what to do. The
Spiritual Dimensions of Restorative Justice 255

problem is that rules depersonalize people and create alienation. Harris


(2003: 35) argues that the current criminal justice system is embedded in
a power and control model of the state. As she states, “Those who set
themselves up as beyond reproach define the criminal as less than fully
human. Without such objectification, the routine practice of subjecting
human beings to calculated pain infliction, degradation, domination,
banishment and execution would be regarded as intolerable.” The pro-
cess for so judging people is institutionalized and bureaucratic.
Weber (1958; 1986a-c) saw rational bureaucracy as a means of
depersonalizing domination. Edwards (1979) argues that bureaucracy
served to establish capitalists control over labor by establishing imper-
sonal rules. Postmodernists seek to debunk the rules. They situate mea-
ning in historical contexts and deny any absolute meaning (Best and
Kellner, 1991). In essence, they remove the rule base and push us back
to the personal and community agreement.
The restorative justice movement participates in this deconstruction
of the social system. These theorists and practitioners deconstruct the
statist approach to criminal justice. They argue that wrong doing and
harm doing are personal acts that damage persons and interpersonal
relationships (Zehr and Mika, 2003). Christie (2003) argues that statist
justice and the professionalization of justice processes steal our right to
settling conflicts. Bazemore and Schiff (2001) argue that there is a need
to focus on the harm the crime does and to focus on restoration rather
than retribution. Harris (2003), from a feminist perspective, seeks an
approach that values harmony rather than focusing on appropriate pu-
nishment.
The deconstruction of rule based/proper punishment approaches
creates some issues. Sullivan and Tifft (2001) point out that when we
experience harm we want revenge. They also point out that in many
cases the harm cannot be undone. I will argue that, at a spiritual base,
restorative justice moves us from a rules and harm classifying system to
a consideration of virtues. In the modern world, ethics, as a set of rules,
has been substituted for virtue.
This substitution is especially obvious in the criminal justice sys-
tem. There are no laws that prescribe positive behaviors. Even traffic
laws are of the form, “you shall not exceed the speed limit.” This form
256 Restorative Justice Across the East and the West

tends to support angry and retributive responses. If you break the rules
there is a price to be paid. The Dalai Lama (1997: 1) has taught that we
need to develop patience, which he defines as, “a certain ability to
remain firm or steadfast, to not be overwhelmed by the adverse situa-
tions or conditions one faces.” This chapter will focus on anger and hel-
ping people move beyond anger as essential to the restorative process.

Anger
Thurman (2005) points out that in both Eastern and Western traditions
anger is considered deadly to the soul. In the Buddhist tradition anger is
considered the greatest evil (Dalai Lama, 1997). Thurman (2005) ex-
plains that anger and its concomitant hatred destroy rationality and de-
personalize the person with whom one is angry.
Anger presents two problems. First, anger tends to destroy the one
feeling anger. Second, anger begets anger. Along with feeling the pain
of an injustice done, one feels the pain again, over and over, and as one
experiences anger, one plots revenge (Thurman, 2005). Anger, focuses
the mind on the object of its anger and on the desire to harm the other.
The actions taken in anger are designed to harm the other. This arouses
in the other anger that seeks retribution. Anger, thus, destroys the angry
person and human relationships (Thurman, 2005).
Thurman (2005: 12) also speaks of “organized anger.” He states,
“Culturally organized anger sets the standard for our militaristic, violent
lifestyle, modeled by heroes from Achilles to the Terminator.” He is
speaking primarily about war, but I extend his argument to the criminal
justice system with its organized “professionalism” and retributive
punishment. The system has stolen the personal element (Christie, 2003).
Many laws express “organized anger.” We are angry that people use
drugs. We pass mandatory sentencing laws to express our anger. We
rationalize that prisons are rehabilitative in the face of much evidence to
the contrary.
Restorative justice seeks to change this system. To do so, I will
argue, restorative justice must confront the anger and propose an alter-
native to anger and retribution. I suggest that patience, tolerance, and
Spiritual Dimensions of Restorative Justice 257

compassion, as taught by the Dalai Lama can be developed as theory


and practice.

A Tale of Two Leaders


To examine these issues, we will look at the biographies of two leaders
of countries that were attacked and how they responded. The Dalai
Lama was the political and spiritual leader of Tibet when the Chinese
invaded the country in 1949. George W. Bush was president of the
United States when it was attacked by Al-Qaeda operatives on Sep-
tember 11, 2001.
“President Bush was born on July 6, 1946 in New Haven Connec-
ticut, and grew up in Midland and Houston, Texas (Whitehouse, 2006).”
He was educated at Yale and Harvard. Prior to becoming President, he
worked in the energy business, was pert owner of a baseball team and
served as governor of Texas. The 1970s were a period of unfocused
activity in his life (Networks, 2004).
On the morning of September 11, 2001, terrorists attacked our
Nation. Since then, President Bush has taken unprecedented steps to
protect our home and create a world free from terror. He is grateful for
the service and sacrifice of our brave men and women in uniform and
their families. The President is confident that by helping to build free
and prosperous societies, our Nation and our friends and allies will
succeed in making America more secure and the world more peaceful.
(Whitehouse, 2006).
The Dalai Lama was born in Takster, Amdo, Tibet on July 6, 1935
(Dalai Lama, 2007). He began his education at age 6, and at the age of
23, passed his final examination in the Jokhang Temple, Lhasa receiving
the highest level of degree in Buddhist philosophy. In 1950, he assumed
full political power in response to the Chinese invasion. In 1954, he
went to Beijing for peace talks, but in 1959, he was forced into exile
(Dalai Lama, 2007).
The Dalai Lama has sought to work through the United Nations to
obtain justice for his people. He has presided over a democratization
process for the Tibetan government in exile, has proposed a peace plan
(Dalai Lama, 2007). The five points of his peace plan include:
258 Restorative Justice Across the East and the West

1. Transformation of the whole of Tibet into a zone of peace.


2. Abandonment of China’s population transfer policy that threatens
the very existence of the Tibetans as a people.
3. Respect for the Tibetan people’s fundamental human rights and for
democratic freedoms.
4. Restoration and protection of Tibet’s natural environment and the
abandonment of China’s use of Tibet for the production of nuclear
weapons and dumping nuclear waste.
5. Commencement of earnest negotiations on the future status of Tibet
and of relations between the Tibetan and Chinese peoples (Dalai
Lama, 2007).

In response to the attack on September 11, President Bush defined an


“axis of evil.” On September 11, the President said, “Today, our nation
saw evil, the very worst of human nature (Bush, 2001).” He further said,
“America and our friends and allies join with all those who want peace
and security in the world, we stand together to win the war against
terrorism (Bush, 2001). On September 11, 2006, the President said:

Since the horror of 9/11, we’ve learned a great deal about the enemy.
We have learned that they are evil and kill without mercy—but not
without purpose. We have learned that they form a global network of
extremists who are driven by a perverted vision of Islam—a totali-
tarian ideology that hates freedom, rejects tolerance, and despises all
dissent. And we have learned that their goal is to build a radical Isla-
mic empire where women are prisoners in their homes, men are beaten
for missing prayer meetings, and terrorists have a safe haven to plan
and launch attacks on America and other civilized nations. The war
against this enemy is more than a military conflict. It is the decisive
ideological struggle of the 21st century, the calling of our generation
(Bush, 2006).

Victor Chan asked the Dalai Lama if he hated the Chinese (Dalai Lama
and Chan, 2004). The Dalai Lama’s response was:
Spiritual Dimensions of Restorative Justice 259

(as the private secretary translated): “His Holiness does not have any
bad feelings toward the Chinese. We Tibetans have suffered greatly
because of the Chinese invasion. And as we speak, the Chinese are
systematically, stone by stone, dismantling the great monasteries of
Tibet. Nearly every Tibetan family in Dharamsala has a sad story to
tell; most have lost at least one family member due to Chinese atro-
cities. But His Holiness said his quarrel is with the Chinese Com-
munist Party. Not with ordinary Chinese. He still considers the Chi-
nese his brothers and sisters. His Holiness doesn’t hate the Chinese. As
a matter of fact, he forgives them with no reservation (24).

President Bush’s statements express an appeal to “organized an-


ger.” He defines those who attacked the World Trade Center and the
Pentagon and their supporters as evil, the enemy, uncivilized and bear-
ing malevolent intent. He proposes a war on terror as the appro-priate
response. He clearly demands retribution for the harm done. As is
typical of anger, he expands the target to include Iraq with no evidence
to indicate that Iraq was in any way complicit in the September 11
attack.
In contrast, the Dalia Lama forgives those who attacked his country
and seeks peace through the United Nations. He defines no enemy. He
continues to see the Chinese as people, even as brothers and sisters.
These two leaders personify the two approaches. President Bush
seeks retribution. The Dalai Lama seeks restoration. I suggest that if
restorative justice truly seeks restoration it will do well to learn from the
Dalai Lama.

Virtue vs. Law


Law can be understood and/or defined as a set rules enforced by socially
legitimated institutions (Hart, 1961). Hart suggests that law and morality
are separate and not necessarily compatible. Virtue is demonstrated by
the positive practice of values or presentation of goods. From a Christian
point of view, Paul taught:

You must obey the governing authorities. Since all government comes
from God, the civil authorities were appointed by God, and so anyone
260 Restorative Justice Across the East and the West

who resists authority is rebelling against God’s decision, such an act is


bound to be punished. Good behavior is not afraid of magistrates; only
criminals have anything to fear. If you want to live without being
afraid of authority, you must live honestly, and authority may even
honor you. The state is there to serve God for your benefit. If you
break the law, however, you may well have fear; the bearing of the
sword has its significance ... Avoid getting into debt, except the debt of
mutual love. If you love your fellow men you have carried out your
obligations. All the commandments: You shall not commit adultery,
you shall not kill, you shall not steal, you shall not covet, and so on,
are summed up in this single command; you must love your neighbor
as your self. Love is the one thing that cannot hurt your neighbor; that
is why it is the answer to every one of the commandments (Romans,
12: 1-10).

In response to the question, “Your Holiness, I thought it natural that


you’d harbor resentment toward the Chinese. Yet you’ve told me that
this is not so. But do you sometimes at least, experience deep feelings of
animosity?” The Dalai Lama (2004: 47) responds:

Almost never. I analyze it like this: if I develop bad feelings toward


those who make me suffer, this will only destroy my own peace of
mind. But if I forgive, my mind becomes calm. Now, concerning our
struggle for freedom, if we do it without anger, without hatred, but
with forgiveness, we can carry out that struggle even more effectively.
Struggle with calm mind, and with compassion. Through analytical
meditation, I now have a full conviction that destructive emotions like
hatred are of no use. Nowadays, anger and hatred, they don’t come.
But little irritation sometimes comes.

The major point is that if one’s life is guided by love or compassion


one will not need to be concerned about rules or the law. The question
becomes can a system of justice especially criminal justice be based on
love and compassion?
Spiritual Dimensions of Restorative Justice 261

Compassion
His Holiness, the Dalai Lama (1997: 3-4) states:

Compassion can be roughly defined in terms of a state of mind that is


nonviolent, non-harming, and non-aggressive. Because of this there is
a danger of confusing compassion with intimacy.

So we find there are two types of love or compassion. On the one


hand is compassion or love which is tinged with attachment. That type
of love and feeling of intimacy is quite partial and biased, it is based
very much on the consideration that the object of one’s affection or
attachment is someone who is dear or close to one. On the other hand,
genuine compassion is free from such attachment. There the motivation
is not so much that this person is my friend, is dear to me or related to
me. Rather, genuine compassion is based on the rationale that just as I
do, others have this innate desire to be happy and to overcome suffering;
just as I do, they have the natural rights to fulfill this fundamental
aspiration. Based on that recognition of this fundamental equality and
commonality, one develops a sense of affinity and closeness, and based
on that, one will generate love and compassion. This is genuine com-
passsion.
Relevant to restorative justice His Holiness, the Dalai Lama (1997:
5) states, “One aspect of compassion is to respect others’ rights and to
respect others’ views. That is the basis of reconciliation.
Thurman (2005: 60) acknowledges that it is too much to expect
ourselves or others to move from anger hatred to compassion in a quick
way. He suggests that “tolerance, patience, forbearance and forgiveness”
are the steps on the path toward compassion. I would add empathy as a
step.

Tolerance
Tolerance is accepting events as they are without becoming angry. We
may be irritated by a harm or a perceived harm, but we do not lose
ourselves to anger (Thurman, 2005). As one learns to tolerate small
discomforts, one develops the capacity to tolerate larger discomforts.
262 Restorative Justice Across the East and the West

The Dalai Lama (2001) points out that all people experience frustrations
in life. If we do not develop tolerance we become discouraged and lose
some of our ability to effectively cope with issues. “Since patience or
tolerance comes from a certain ability to remain firm and steadfast, to
not be overwhelmed by the adverse situations or conditions that one
faces, one should not see tolerance or patience as a sign of weakness,
but rather as a sign of strength coming from a deep ability to remain
steadfast and firm (Dalai Lama, 1997: 1).”
Achilles and Zehr (2001) point out the wide range of emotions
victims experience. For restorative justice to be effective, we must be-
come tolerant of the anger and frustration of the perpetrators, the victims,
and the community. We must also develop tolerance for the current
system. They explain many of the needs that victims have. The Dalai
Lama repeatedly stresses that adversity can be a stimulus for growth. He
states, “Retaliation based on the blind energy of anger seldom hits the
target (Dalai Lama, 2001: 26).” Restorative justice needs to develop
interventions that help the victims understand the potential for growth.
They need to be helped to understand how their anger and frustration
only continue to harm them They also need to understand that tolerance
and compassion do not preclude strong action (Dalai Lama, 1997).
If the restorative justice project is to be successful it must also
develop a better understanding of the perpetrator. The process must
encourage the perpetrator to tell her or his story. Gilligan (1996) argues
that people engage in crime to hide a deep sense of shame and in-
adequacy. The Dalai Lama (2001) in many of his other works stresses
that people can change and grow. In the process of making the per-
petrator responsible for his or her actions, restorative justice must help
the perpetrators accept the harm they have experienced and use that to
grow.
Practitioners must help the community develop a tolerance that
humanizes both the victims and the perpetrators. The community must
also accept its responsibility for crime. The Dalai Lama encourages us to
realize that all humans have a right to be happy and overcome suffering
(Dalai Lama, 1992). Community agents need to be taught to seek the
growth and restoration of both the victims and the perpetrators. In many
Spiritual Dimensions of Restorative Justice 263

cases, the anger that drives the perpetrator grows from the actions or in-
actions of the community.
“Generally speaking, all the major religions of the world emphasize
the importance of the practice of love, compassion, and tolerance (Dalai
Lama, 1997: 1).” “In the Buddhist tradition, compassion and love are
seen as two aspects of the same thing: Compassion is the wish for ano-
ther to be free from suffering; love is wanting them to have happiness
(Dalai Lama, 2001: 17). The desire to reduce suffering is the basis of
restorative justice.

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www.whitehouse.gov/president/biography.htm.
Zehr, H. and Mika, H. (2003), Fundamental Concepts of Restorative Justice, in
E. McLaughlin, R. Fergusson, G. Hughes and L. Westmarland (eds.), Re-
storative Justice: Critical Issues, Sage: London.
Index
Abram, D., 221-22. Australia, 6, 27, 96, 124, 127,
Achilles, M., 262. 135-36, 177, 210, 249.
Addams, Jane, 124.
Additional Protocols, 168. Bao-Gu system, China, 117-18.
Afghanistan, 181-82. Barnevernsnemnd, 39-40.
Africa, 3, 82, 96, 97, 125, 131, 138- Bazemore, Gordon, 12, 95, 236,
39, 146, 151, 161, 164, 169-86, 254-55.
194. Belgium, 27, 179.
African National Congress, 174. Benneche, Gerd, 36.
Ahimsa, 183, 186, 189, 194. Berniers, François, 147.
Al-Qaeda, 257. Bernstein, Joan, 106.
American Nazi Party, 97. Berry, Thomas, 209.
Anderson, Benedict, 191. Besthorn, Fred H., 5, 8, 205-06.
Androff, David, 7, 123. Blumenbach, Johann Friedrich,
Antodaya, 190. 147.
Apartheid, 3. Bolivia, 180, 187.
Arendt, H., 254. Bose, A., 182.
Argentina, 173. Braithwaite, J., 68, 70, 165, 239.
Ashworth, A., 193. Bratt, Bob, 108.
Austin, Raymond D., 234. Brazil, 180.
268 Index

Breton, D., 4. Confucius, 3, 115-16, 119, 146.


Buddha, 4. Corrado, R.R., 166.
Bugbee, H., 222. Cosgrove, Peter, 177.
Burns, H., 66. Costa Rica, 180.
Bush, George W., 257. Crawford, Adam, 230.
Criminal justice, 2-4, 6, 14-16, 28,
Cambodia, 48-49, 60. 33-34, 40-44, 63-70, 77-86, 94,
Canada, 3, 27, 167, 197. 98, 114, 118, 130-36, 163-69,
Carlos Belo, Bishiop, 128. 180, 193-97, 209-13, 231-36,
Chan, Victor, 258. 254-60.
Chesney-Lind, M., 65. Crow, Jim, 149.
Child Protective Services, Norway, Cuba, 249.
38-43. Cultural Revolution, China, 98, 242-
Children, Young Persons and Their 43.
Families Act, New Zealand, 17.
Chile, 163, 169, 173, 180. Dalai Lama, 8, 253-63.
China, 3-5, 8, 14, 16, 24, 28, 97-98, Dalits, 247-48.
113-20, 145-47, 150-60, 229-30, Daly, K., 68, 70.
142-46, 249, 258. Dharma, 247.
Christie, A., 193, 255. Dine system, 234.
CIA, Central Intelligence Agency, Dominican Republic, 180.
United States, 180. Du Bois, W.E.B., 152.
Civil Liberties Act, United States,
103, 105-06, 108. East Timor, cf Timor Leste.
Claims Act, United States, 105-06. Ecuador, 180.
Clark, R., 179. Edwards, R., 255.
Cohen, I.M., 166. El Salvador, 8, 180, 230.
Colombia, 180. Elliott, Robert, 218.
Communist Party, China, 16, 127, England, 27, 194, 245.
244, 159. Ethnic reconciliation, 149, 151, 156.
Community Reconciliation Process, European Union, 2, 99.
123, 130-40. Evacuation Claims Act, United
Community Service Order program, States, 106.
Hong Kong, 244. Evens, Wayne, 8, 253.
Concept of “race,” 145-61. Executive Order 9066, United States,
Conferencing, between victims and 104, 107.
offenders, 2, 23, 41, 65-72, 79,
80-89, 99, 236. Falck, Sturla, 42.
Confucianism, 3, 114-16, 119, 242, Family group conferencing, 15, 27,
245. 41, 79, 85, 166, 233, 239.
Index 269

Fretilin party, 127. Hyun, Young Hak, 249.


Friskics, S., 220, 222.
Gaarder, E., 66. IASSW, International Association
Gaia Hypothesis, 205-06. for Schools of Social Work, 238.
Galtung, Johan, 187. IFSW, International Federation of
Gandhi, Mohandas Karamchand Social Work, 238.
(Mahatma Gandhi), 8, 163-95. IMF, International Monetary Fund,
Geneva Convention, 168. 179, 187, 192.
Geng, K., 3. India, 8, 151, 182, 187, 190-91, 194,
Genocide Convention, 168. 229, 230, 246-49.
Gilligan, J., 254, 262. Indonesia, 7, 97, 126-40.
Global Environmental Institute, 5. International Court of Justice, 170.
Goel, Rashmi, 69. International Criminal Court, 169-71,
Grauwiler, P., 66, 70. 189.
Green, Ross G., 72 International Criminal Tribunal for
Griffiths, Curt T., 68. Rwanda, 170-71, 179.
Guatemala, 173, 180. International Criminal Tribunal for
Yugoslavia, 170-71, 178.
Hagen, Gerd, 36. Iraq, 2, 99, 174, 259.
Han-pu-ri, 241, 249.
Hårfagre, Harald, 37. Japanese Americans, 7, 97, 103-10.
Harmony, 2-3, 5, 7, 14-15, 21, 25-26, Jesus, 36, 231, 248.
95, 113-21, 135, 140, 146, 234, John Paul II, Pope, 127.
239-41, 255. Johnstone, G., 193, 213.
Harris, M.K., 255. Jonestone, G., 90.
Healing circles, 2, 66, 211. Juvenile delinquents, 11-28, 34-45.
Healing, 2, 4, 8, 23, 66, 73, 87-88,
93, 96, 99, 116, 126, 129, 131-32, Karma, 247.
164-66, 174-75, 208, 212-13, 234. Katz, Eric, 218-19.
Hiranandani, Vanmala, 8, 163. Keefe, T., 206.
Honduras, 180. Korea, 8, 19, 97-98, 229-30, 248-49.
Hong Kong, 6, 11-28, 152-53, 158, Kosovo, 178.
229-30, 244-46. Koss, Mary, 64, 69, 71.
Horta, Jose Ramos, 128. Koyukon people, 221.
Hui, E.C., 3. Ku Klux Klan, 97.
Human rights, 7, 99, 108-10, 124-30, Kurki, L., 79, 90.
138-40, 168-93, 237-38, 248-49,
258. Latin America, 125, 164, 173, 180,
Hurdle, D., 95-96. 182, 210.
Hydle, Ida, 7, 33. Lee, JoAnn, 7, 47.
270 Index

Lee, Stephen C.K., 7, 113. Nicaragua, 180.


Northern Ireland, 174.
Lehman, S., 4. Norway, 7, 19, 33-45.
Linnaeus, Carolus, 147. Nuremberg trials, 168-70.
Longmont Community Justice
Partnership, Colorado, 82-90. O’Brien, Sandra, 236.
Lovelock, James, 205-06. O’Neill, O., 237.
Loy, D., 4. Odgers, C., 166.
Opium Wars, 150-51, 155, 157-58.
Macau, 24, 152-53, 158.
Mandela, Nelson, 173-74. Panama, 180.
Mao, Ze-dong, 242. Papua New Guinea, 124.
Maori, 69. Parekh, B., 184.
Marshall, Tony, 164. Parenti, M., 178-79.
McNally, D., 179. Peace, 1-3, 7, 19-22, 26, 66, 96-99,
Mennonites, 3. 118-19, 124, 128, 134-37, 140,
Merleau-Ponty, Maurice, 221. 164-68, 172-89, 194-95, 210-11,
Mexico, 180. 231-35, 257-60.
Mills, L., 66, 70. Peru, 180.
Milosevic, Slobodan, 178. Peru, 97, 125.
Minow, M., 173. Philippines, 97.
Moon, C., 173. Portugal, 127.
Morocco, 97. Positive Youth Development
Morrison, Robert, 151. approach, 50, 60.
Muir, John, 216. Presser, L., 66.
Prison Fellowship International, 148-
Nagel, T., 167. 49.
Nam, Soon Kang, 241.
Nanjing massacre, 98. Reagan, Ronald, 103.
National Mediation Service, Norway, Reconciliation, 1-3, 7, 41, 80, 95, 97,
41-42. 99, 119, 123-40, 149, 151, 156,
Native people, 3, 72, 92, 95, 166-67, 163, 169, 172-76, 181, 185, 211-
172. 13, 233, 241.
Navajo system, 234. Red Guard, China, 98.
Neighborhood Accountability Board, Restitution, 3,6, 40, 54, 90, 114, 171,
50-51, 53-60. 175-76, 181, 210, 212, 232-33,
Neiman, S., 254. 236.
Netherlands, 97, 249. Restorative Justice Project, Santa
New Zealand, 3, 6, 17, 27, 67, 69, 72, Clara County, 48-60.
124, 167, 210. Restorative Justice, 1-263.
Index 271

Roche, D., 177. Timor Leste, 7, 97, 123-40, 169, 174,


Roosevelt, Eleanor, 124. 176-77.
Roosevelt, Franklin D., 104. Toit, A.D., 175, 184.
Roosevelt, Theodore, 215. Tokyo trials, 168-70.
Ross, R., 73. Truth and reconciliation commission,
Roy, Arundhati, 188, 191. El-Salvador, 8, 180.
Rozee, P., 64, 71. Truth and reconciliation commission,
Rozman, Gilbert, 118. South Africa, 3, 173-76.
Rubin, P. 73. Truth and reconciliation commission,
Rwanda, 169-71, 179. Timor Leste, 7, 123-40.
Tutu, Desmond, 174-75.
Santa Clara County, California, 48-
49, 60. Umbreit, M., 12, 63, 95.
Santa Cruz massacre, 128. United Kingdom, 19, 37, 150-51,
Sarvodaya, 183, 189-90, 192. 155, 179.
Satyagraha, 183-84, 189, 194. United Nations, 2, 7, 98-99, 124, 168,
Schatz, Mona, 7, 77. 170, 181, 249, 257, 259.
Schiff, M., 254-55. United States, 7, 77, 80, 97-99, 103-
School bullying, 2, 6, 12, 18-27. 07, 110, 149, 157, 171, 230, 147,
Sentencing circles, 68, 79. 257.
September 11, 207, 257. Universal Declaration of Human
Sierra Leone, 97, 125, 169, 174. Rights, United Nations, 99, 124,
Singapore, 27. 168.
Smith, M.E., 193. Ursua, Rhodora, 7, 47.
Snyder, J., 169. US Commission on Wartime
Strong, K.H., 211. Relocation and Internment of
Suharto, General, 128. Civilians, 106-08.
Sullivan, D., 193, 255. Ustvedt, Yngvar, 35.
Swaraj, 186.
Szto, Peter, 7, 145. Van Ness, Daniel, 28, 211, 235.
Van Wormer, Katherine, 1, 38-40,
Taiwan, 24, 97. 43, 63, 65, 93, 206, 210-11.
Takahashi, Rita, 7, 103. Vasudhaiva Kutumbakam, 190-91.
Thailand, 2. Vermont model, 93-95.
Third World, 172, 178, 181, 187, Victim-offender meditation, 17, 23,
192. 41, 65-66, 79, 99, 166, 232-34,
Thurman, R.A.F., 256, 261. 236.
Tibet, 4, 257-59. Vides Saade, Marta, 8, 229.
Tifft, L., 193, 255. Vinjamuri, L., 169.
Tikkun, 3.
272 Index

Wales, 27, 245. WTO, World Trade Organization,


Walgrave, Lode, 236. 180, 187, 192.
Wang, Youqin, 98. Xunzi, 242.
Watchel, Ted, 24.
Weber, Max, 255. Yoder, Perry H., 231.
Whole-school restorative approach, Young Bear, Jerry, 6.
Hong Kong, 19-21, 24-27. Yugoslavia, 169-71, 178-79.
Wong, Dennis, 6, 11.
World bank, 179, 187, 192. Zehr, Howard, 3, 78, 231, 262.
Worldwatch Institute, 5. Zhang, Xinzhou, 4.
About the Contributors
DAVID ANDROFF is a Doctoral Candidate, School of Social Welfare,
University of California at Berkeley. His dissertation was on reparative justice
in Timor Leste.

FRED H. BESTHORN is Associate Professor, Social Work Department,


University of Northern Iowa. Besthorn is a recognized national expert on deep
ecology and ecofeminism. He has co-authored a book on human behavior and
the social environment.

WAYNE EVENS is Associate Professor and Director, Department of


Sociology and Social Work, Bradley University. He serves as US director of
the Russian-American Summer University, a program to educate Russian social
service workers. His research interests are in the areas of drug treatment,
poverty, spirituality, and social justice.

IDA HYDLE is Senior Researcher at the Norwegian Institute for Research on


Child Development, Welfare, and Aging (NOVA) and Professor at the Center
for Peace Studies, University of Tromsø, Norway. A medical doctor and social
anthropologist, Hydle has written extensively on restorative justice issues in
Norway.
274 About the Contributors

JOANN LEE is Manager of Research and Evaluation, Larkin Street Youth


Services at San Francisco, California, has diverse experience working with
youth and their families on Asian American juvenile justice issues.

STEPHEN CHI-KONG LEE is President, Bright China Holding, Ltd and


Chair, Prison Fellowship, Hong Kong. Lee conducts training sessions on
restorative justice for professionals and volunteers in the criminal justice
system in China.

VANMALA HIRANANDANI is Assistant Professor, School of Social Work,


Dalhousie University, Halifax, Canada. She has worked in India as a medical
social worker and on community-based research projects concerning women
and health, educational media, and displacement from traditional sources of
livelihood as a result of Eurocentric development approaches. Her research
interests include health consequences of neoliberal globalization, anti-
imperialism struggles, critical race theory, and research that empowers
resistance.

MONA SCHATZ is Director, Division of Social Work, University of


Wyoming and Director, Wyoming Education and Social Research Institute,
engages internationally with families and family social programming. Schatz
has worked with children and families for three decades, building education,
training and research innovative strategies.

PETER SZTO is BSSW Program Coordinator, School of Social Work,


University of Nebraska at Omaha. His research interests involve social welfare
development in China and mental health services for Asian Americans.

RITA TAKAHASHI is Professor and Director of Social Work, San Francisco


State University. She has been involved in several ethnic and cultural diversity
committees at the school, university, local, state, and national levels.

RHODORA URSUA is Project Director, Project Asian American Partnerships


in Research Empowerment (ASPIRE) at New York University, School of
Medicine. Her past experience includes three years working at the Asian
American Recovery Services, Inc. as a Youth Intervention Specialist and
Project Supervisor of the Restorative Justice Project.
About the Contributors 275

KATHERINE VAN WORMER is Professor of Social Work, University of


Northern Iowa. She has written 12 books on social work and criminal justice,
and several that include a restorative justice focus. Her book Introduction to
Social Welfare and Social Work: The US in Global Perspective was published
in 2006 (www.katherinevanwormer.com).

MARTA VIDES SAADE is qualified both as a lawyer and theologian. She is


Assistant Professor, Law Society Program, Ramapo College of New Jersey.
Formerly, Vides Saade was Managing Attorney at Legal Services for Children
in San Francisco, California, where she worked in attorney/social worker teams
in the representation of children and as a federal prison chaplain. She currently
serves as technical advisor to Comisión de Esclarecimiento La Verdad Sobre
1932, a truth commission established to clarify the events of a 1932 massacre of
indigenous people in El Salvador.

DENNIS SING-WING WONG is Associate Professor, Department of Applied


Social Studies at the City University of Hong Kong. He has conducted large-
scale studies being a well-known scholar in the fields of restorative justice and
school bullying. He has recently published five textbooks in the these particular
fields.
CASA VERDE PUBLISHING

WELFARE CAPITALISM
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Edited by Christian Aspalter, 2003
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2. The Welfare State in Canada, Janine Brodie
3. The Welfare State in the United States, Robert P. Scheurell
4. The Welfare State in Eight Latin American Countries,
Carmelo Mesa-Lago
5. The Welfare State in the United Kingdom, Michael Lavalette
and Laura Penketh
6. The Welfare State in Sweden, Sang-hoon Ahn and Sven E. Olsson-Hort
7. The Welfare State in Denmark, Peter Abrahamson
8. The Welfare State in France, Jean-Paul Revauger
9. The Welfare State in Germany: Corporatism and the German Welfare
Model, Ingo Bode
10. The Welfare State in Switzerland, Giuliano Bonoli
11. The Welfare State in Italy, Franca Maino
12. The Welfare State in Israel, Zeev Rosenhek
13. Welfare Capitalism in Japan: Past, Recent, and Future Developments,
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14. The South Korean Welfare State: The Impact of Political Alliances on
Welfare Politics, Sang-kyun Kim and Sang-hoon Ahn
15. The Welfare State in Hong Kong, Raymond Kwok-hong Chan
16. The Welfare State in Singapore: “Welfare Without Redistribution”
Linda Low and Christian Aspalter
17. The Welfare State in Aotearoa/New Zealand, Michael Goldsmith
and Catherine Kingfisher
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3. Welfare State in Brazil: Evolution, Problems and Trends of
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4. Welfare State in Czech Republic, Vojtech Krebs
5. Pension Reform in Poland, Stanislaw Kluza and Krzysztof Ostaszewski
6. The Hungarian Welfare Model: Social Policy at the Crossroads,
Zoltan Karpati and Zsuzsa Széman
7. The Welfare State Sytem in India, Christian Aspalter
8. The Welfare State Sytem in Malaysia, John Doling and Roziah Omar
9. The Welfare State System in Mainland China, Nelson W.S. Chow
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10. Welfare Reform in Taiwan: The Asian Financial Turbulence and Its
Political Implication, Ku Yeun-Wen
11. Welfare State in South Korea: Implications of the Economic Crisis,
Kwon Soonman
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NEO-LIBERALISM AND
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2. Welfare Capitalism in Australia, Christian Aspalter
3. Indeginous Welfare in Australia, Eileen Baldry and Sue Green
4. Poverty and Income Distribution in Australia, Ann M. Harding
5. The Australian Welfare State in Transition: Social Policy in the 1990s,
Brian Howe and Anthony O’Donnell
6. The Neoliberal Era in Politics and Social Policy, Patricia Harris
7. The Idea of “Mutual Obligation” in Australian Social Security Policy,
Pamela L. Kinnear
8. The Promise and Performance of Mutual Obligation, Cosmo Howard
9. Centrelink—A New Approach to Welfare Service Delivery?,
Richard Mulgan
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1. The State of Social Welfare: An Introduction, Christian Aspalter
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2. Alleviating Unemployment in Saudi Arabia, Adel S. Aldosary,
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and Syed Munawer
4. The Development of Social Services in Russia, Antonina Dashkina
5. Poverty Alleviation Programs in Sri Lanka, Amarawansa Ranaweera
6. Territorial Justice in China, Christian Aspalter
7. The State of Social Welfare in Hong Kong, Ernest Chui
8. Social Welfare in Macau: A State of Transition, Samuel Y. Hui
and Dicky Lai
9. Recent Social Change and Social Policy in Korea, Kim Jinsoo
10. Social Development Policy in Asia: Taking the Examples of India,
China, Malaysia, and Japan, Surendra Singh
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1. Debating Social Development: An Introduction, Christian Aspalter
and Surendra Singh
2. Developmental Social Policy: Theory and Practice, James Midgley
3. Towards A More People-Centered Paradigm in Social Development,
Christian Aspalter
4. Social Development in Korea, Kim Young-Hwa
5. Social Development in Japan: A Focus on Social Welfare Issues,
Rajendran Muthu
6. Distorted Development: The Case of Post-Colonial Hong Kong,
Tang Kwong-Leung
7. Social Welfare Development in Taiwan: Class Interests and the
Politics of Social Policy, Ku Yeun-Wen and Christian Aspalter
8. Social Development in India: A Critique, Surendra Singh
9. Social Development in Bangladesh, Profulla Sarker