VISITING EXPERTS’ PAPERS
THE EVOLUTION OF RESTORATIVE JUSTICEJohn Braithwaite＊

I. IMAGINING TWO ROBBERS
A teenager is arrested in Tokyo for a robbery. The police send him to court where he is sentenced to six
months incarceration. As a victim of child abuse, he is both angry with the world and alienated from it.
During his period of confinement he acquires a heroin habit and suffers more violence. He comes out more
desperate and alientated than when he went in, sustains his drug habit for the next 20 years by stealing cars,
burgles hundreds of houses and pushes drugs to others until he dies in a gutter, a death no one mourns.
Probably someone rather like that was arrested in Tokyo today, perhaps more than one.
Tomorrow another teenager, Hiroshi, is arrested in Tokyo for a robbery. I have seen a number of cases
like the story I will tell about Hiroshi. In fact he is a composite of several Hiroshis I have seen. The police
officer refers Hiroshi to a facilitator who convenes a restorative justice conference. When the facilitator
asks about his parents, Hiroshi says he is homeless. His parents abused him and he hates them. Hiroshi
refuses to cooperate with a conference if they attend. After talking with the parents, the facilitator agrees
that perhaps it is best not to involve the parents. What about grandparents? No they are dead. Brothers
and sisters? No he hates his brothers too. Hiroshi’s older sister, who was always kind to him, has longsince left home and he has no contact with her. Aunts and uncles? Not keen on them either, because theywould always put him down as the black sheep of the family and stand by his parents. Uncle Yamada was
the only one he ever had any time for, but he has not seen him for years. Teachers from school? Hates
them all. Hiroshi has dropped out. They always treated him like dirt. The facilitator does not give up: “No
one ever treated you okay at school?” Well, the hockey coach is the only one Hiroshi can ever think ofbeing fair to him. So the hockey coach, Uncle Yamada and older sister are tracked down by the facilitatorand invited to the conference along with the robbery victim and her daughter, who comes along to support
the victim through the ordeal.
These six participants sit on chairs in a circle. The facilitator starts by introducing everyone andreminding Hiroshi that while he has admitted to the robbery, he can change his plea at any time during theconference and have the matter heard by a court. Hiroshi is asked to explain what happened in his own
words. He mumbles that he needed money to survive, saw the lady, knocked her over and ran off with her
purse. Uncle Yamada is asked what he thinks of this. He says that Hiroshi used to be a good kid. But
Hiroshi had gone off the rails. He had let his parents down so badly that they would not even come today.
“And now you have done this to this poor lady. I never thought you would stoop to violence”, continues
Uncle Yamada, building into an angry tirade against the boy. The hockey coach also says he is surprisedthat Hiroshi could do something as terrible as this. Hiroshi was always a troublemaker at school. But hecould see a kindly side in Hiroshi that left him shocked about the violence. The sister is invited to speak,
but the facilitator moves on to the victim when Hiroshi’s sister seems too emotional to speak.
The victim explains how much trouble she had to cancel the credit cards in the purse, how she had nomoney for the shopping she needed to do that day. Her daughter explains that the most importantconsequence of the crime was that her mother was now afraid to go out on her own. In particular, she isafraid that Hiroshi is stalking her, waiting to rob her again. Hiroshi sneers at this and is unmoved, callous
throughout. His sister starts to sob. Concerned about how distressed she is, the facilitator calls a brief
adjournment so she can comfort her, with help from Uncle Yamada. During the break, the sister reveals that
＊ Chair Regulatory Institutions Network Research,

School of Social Science,
Australian National University,
Australia

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she understands what Hiroshi has been through. She says she was abused by their parents as well. Uncle
Yamada has never heard of this, is shocked, and not sure that he believes it.
When the conference reconvenes, Hiroshi’s sister speaks to him with love and strength. Looking
straight into his eyes, the first gaze he could not avoid in the conference, she says that she knows exactly
what he has been through with their parents. No details are spoken. But the victim seems to understandwhat kind of thing is spoken to by the knowing communication between sister and brother. Tears rush
down her cheeks and over a trembling mouth.
It is his sister’s love that penetrates Hiroshi’s callous exterior. From then on he is emotionally engaged
with the conference. He says he is sorry about what the victim has lost. He would like to pay it back, but
has no money or job. He assures the victim he is not stalking her. She readily accepts this now and whenquestioned by the facilitator says now she thinks she will feel safe walking out alone. She wants her money
back but says it will help her if they can talk about what to do to help Hiroshi find a home and a job.
Hiroshi’s sister says he can come and live in her house for a while. The hockey coach says he has somecasual work that needs to be done, enough to pay Hiroshi’s debt to the victim and a bit more. If Hiroshi
does a good job, he will write him a reference for applications for permanent jobs. When the conference
breaks up, the victim hugs Hiroshi and tearfully wishes him good luck. He apologises again. Uncle Yamada
quietly slips a hundred dollars to Hiroshi’s sister to defray the extra cost of having Hiroshi in the house,says he will be there for both of them if they need him.
Hiroshi has a rocky life punctuated by several periods of unemployment, but he finds work when he can,stays out of trouble and lives to mourn at the funerals of Uncle Yamada and his sister. A year later he has togo through another conference after he steals a bicycle. The victim gets her money back and enjoys taking
long walks alone. Both she and her daughter say that as a result of the conference they feel enriched, have alittle more grace in their lives.
Hiroshi’s conference is an example of restorative justice. A new Western wave of restorative justicebegan with victim-offender mediation programmes in Canada and the United States in the 1970s. Then at
the end of the 1980s family group conferences more like the one used in the story of Hiroshi were firstdeveloped in New Zealand. Since then there has been a proliferation of new and varied models of restorative
justice. My contention is that the defining thing they have in common is that they are a process where all
the stakeholders affected by a crime can come together to discuss the consequences of the crime and what
can be done to right the wrong.
II. INSTITUTIONAL COLLAPSE
Few sets of institutional arrangements created in the West since the industrial revolution have been as
large a failure as the criminal justice system. In theory it administers just, proportionate corrections that
deter. In practice, it fails to correct or deter, just as often making things worse as better. It is a criminal
injustice system that systematically turns a blind eye to crimes of the powerful, while imprisonment remains
the best-funded labour market programme for the unemployed and indigenous peoples. It pretends to beequitable, when we know full well that one offender may be sentenced to a year in a prison where he will bebeaten on reception and then systematically bashed thereafter, raped, even infected with AIDS, while others
serve 12 months in comparatively decent premises, especially if they are white-collar criminals.
While I do believe that many criminal justice systems are more decent than ours in Australia, mostcriminal justice systems are brutal, institutionally vengeful, and dishonest to their stated intentions. Theinteresting question is why are they such failures. Given that prisons are vicious and degrading places, you
would expect that fear of ending up in them would deter crime.
There are many reasons for the failures of the criminal justice system to prevent crime. I will give you
just one, articulated in the terms of my theory in Crime, Shame and Reintegration.1 The claim of this theoryis that the societies that have the lowest crime rates are the societies that shame criminal conduct most
1 John Braithwaite, Crime, Shame and Reintegration. Cambridge:
Cambridge University Press, 1989.

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effectively. There is an important difference between reintegrative shaming and stigmatization. Whilereintegrative shaming prevents crime, stigmatization is a kind of shaming that makes crime problems worse.
Stigmatization is the kind of shaming that creates outcasts; it is disrespectful, humiliating. Stigmatizationmeans treating criminals as evil people who have done evil acts. Reintegrative shaming means disapprovingof the evil of the deed while treating the person as essentially good. Reintegrative shaming means strong
disapproval of the act but doing so in a way that is respecting of the person. Once we understand this
distinction, we can understand why putting more police on the street can actually increase crime. Morepolice can increase crime if the police are systematically stigmatizing in the way they deal with citizens.
More police can reduce crime if the police are systematically reintegrative in the way they deal with citizens.
We can also understand why building more prisons could make the crime problem worse. Having more
people in prison does deter some and incapacitates others from committing certain crimes, like bankrobberies, because there are no banks inside the prison for them to rob, though there certainly are plenty ofvulnerable people to rape and pillage. While there are these crime-preventive effects of imprisonment,
because prisons stigmatize, they also make things worse for those who have criminal identities affirmed by
imprisonment, those whose stigmatization leads them to find solace in the society of the similarly outcast,those who are attracted into criminal subcultures, those who treat the prison as an educational institution
for learning new skills for the illegitimate labour market. On this account, whether building more prisons
reduces or increases the crime rate depends on whether the stigmatizing nature of a particular prison
system does more to increase crime than its deterrent and incapacitative effects reduce it.
A lack of theoretical imagination among criminologists has been a reason for the failure of the criminal
justice system. Without theorizing why it fails, the debate has collapsed to a contest between those whowant more of the same to make it work and those who advance the implausible position that it makes sense
to stigmatize people first and then help them or subject them to rehabilitation programmes in prisons orjuvenile institutions. With juvenile justice in particular, the debate throughout the century has see-sawed
between the justice model and the welfare model assuming the ascendancy. See-sawing between
retribution and rehabilitation has got us nowhere. If we are serious about a better future, we need to hop off
this see-saw and strike out in search of a third model.
For me, that third model is restorative justice. During the past decade a number of different labels reconciliation (Dignan, 1992; Marshall, 1985; Umbreit, 1985), peacemaking (Pepinsky and Quinney, 1991),
redress (de Haan, 1990) - have described broadly similar intellectual currents. Philip Pettit and I havesought to argue for republican criminal justice (Braithwaite and Pettit, 1990). Yet the label that has secured
by far the widest consent during the past few years has been that employed by Zehr (1990), Galaway andHudson (1990) and Cragg (1992), Walgrave, Bazemore and Ubreit2 and Consedine3 - restorative justice. It
has become the slogan of a global social movement. For those of us who see constructive engagement withsocial movement politics as crucial for major change, labels that carry meaning for activists matter.
III. WHAT IS RESTORATIVE JUSTICE?
Restorative justice means restoring victims, a more victim-centred criminal justice system, as well as
restoring offenders and restoring community. First, what does restoring victims mean? It means restoring
the property lost or the personal injury, repairing the broken window or the broken teeth (see Table 1). It
means restoring a sense of security. Even victims of property crimes such as burglary often suffer a loss of
security when the private space of their home is violated. When the criminal justice system fails to leave
women secure about walking alone at night, half the population is left unfree in a rather fundamental sense.
Victims suffer a loss of dignity when someone violates their bodies or shows them the disrespect of taking
things which are precious to them. Sometimes this disrespectful treatment engenders victim shame. “Heabused me rather than some other woman because I am trash.” “She stole my dad’s car because I wasirresponsible to park it in such a risky place.” Victim shame often triggers a shame-rage spiral wherein
victims reciprocate indignity with indignity through vengeance or by their own criminal acts. By seeking to2 Gordon Bazemore and Mark S. Umbreit, Balanced and Restorative Justice. Office of Juvenile Justice and Delinquency
Prevention. Washington, DC, 1994.
3 Jim Consedine, Restorative Justice: Healing the Effects of Crime. Lyttleton, New Zealand: Ploughshares Publications.

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hold the offender dialogueically responsible for her crime, restorative justice seeks to absolve victims offeelings of responsibility which threaten their dignity.
Table 1: What Does Restoring Victims Mean?
Restore property loss
Restore injury
Restore sense of security
Restore dignity
Restore sense of empowerment
Restore deliberative democracy
Restore harmony based on a feeling that justice has been done
Restore social support
Disempowerment is part of the indignity of being a victim of crime. The lawyers, in the words of Nils
Christie “steal our conflict”4. According to Pettit and Braithwaite’s republican theory of criminal justice5, awrong should not be defined as a crime unless it involves some domination of us that reduces our freedom toenjoy life as we choose. It follows that it is important to restore any lost sense of empowerment as a resultof crime. This is particularly important where the victim suffers structurally systematic domination. For
example, some of the most important restorative justice initiatives we have seen in Australia have involved
some thousands of Aboriginal victims of consumer fraud by major insurance companies6. In these cases,
victims from remote Aboriginal communities relished the power of being able to demand restoration andcorporate reform from “white men in white shirts”.
The western criminal justice system has, on balance, been corrosive of deliberative democracy, though
the jury is one institution that has preserved a modicum of it. Restorative justice is deliberative justice; it isabout people deliberating over the consequences of a crime, how to deal with them and prevent theirrecurrence. Deliberative means "based on discussion" or "based on conversation". So deliberative justice isconversational justice. Deliberative democracy is opposed to just deciding what to do by taking a vote
(representative democracy). Representative democracy can be think democracy because it can be based onlittle discussion of the issues. This contrasts with the professional justice of lawyers deciding which rules
apply to a case and then constraining their deliberation within a technical discourse about that ruleapplication.
Restorative justice aims to restore harmony based on a feeling that justice has been done. Restoring
harmony alone, while leaving an underlying injustice to fester unaddressed, is not enough. “Restoringbalance” is only acceptable as a restorative justice ideal if the “balance” between offender and victim thatprevailed before the crime was a morally decent balance. There is no virtue in restoring the balance byhaving a woman pay for a bag of rice she has stolen from a rich man to feed her children. Restoring harmony
between victim and offender is only likely to be possible in such a context on the basis of a discussion of why
the children are hungry and what should be done about the underlying injustice of their hunger.
Restorative justice cannot resolve the deep structural injustices that cause problems like hunger. But
we must demand two things of restorative justice here. First, it must not make structural injustice worse(in the way, for example, that the Australian criminal justice system does by being an important cause of the
4 Nils Christie, “Conflicts as Property”, British Journal of Criminology 17: 1-15, 1978.
5 Philip Pettit and John Braithwaite, Not Just Deserts: A Republican Theory of Criminal Justice.
6 See Brent Fisse and John Braithwaite, Corporations, Crime and Accountability. Cambridge: Cambridge University Press,
1993, pp. 218-23.

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unemployability and oppression of Aboriginal people). Indeed, we should hope from restorative justice formicro-measures to ameliorate macro-injustice where this is possible. Second, restorative justice should
restore harmony with a remedy grounded in dialogueue which takes account of underlying injustices.
Restorative justice does not resolve the age-old questions of what should count as injust outcomes. It is amore modest philosophy than that. It settles for the procedural requirement that the parties talk until they
feel that harmony has been restored on the basis of a discussion of all the injustices they see as relevant tothe case.
Finally, restorative justice aims to restore social support. Victims of crime need support from their
loved ones during the process of requesting restoration. They sometimes need encouragement and support
to engage with deliberation toward restoring harmony. Friends sometimes do blame the victim, or morecommonly are frightened off by a victim going through an emotional trauma. Restorative justice aims toinstitutionalise the gathering around of friends during a time of crisis.
A. Restoring Offenders, Restoring Community
In most cases, a more limited range of types of restoration is relevant to offenders. Offenders havegenerally not suffered property loss or injury as a result of their own crime, though sometimes they are acause of the crime. Dignity, however, is generally in need of repair after the shame associated with arrest.
When there is a victim who has been hurt, there is no dignity in denying that there is something to beashamed about. Dignity is generally best restored by confronting the shame, accepting responsibility for thebad consequences suffered by the victim and apologising with sincerity7. A task of restorative justice is toinstitutionalize such restoration of dignity for offenders. When restorative justice works best, you get thiscore sequence of remorse-apology-forgiveness.
The sense of insecurity and disempowerment of offenders is often an issue in their offending and in
discussion about what is to be done to prevent further offending. Violence by young men from racial
minorities is sometimes connected to their feelings of being victims of racism. For offenders, restoring a
sense of security and empowerment is often bound up with employment, the feeling of having a future,achieving some educational success, sporting success, indeed any kind of success. Many patches areneeded to sew the quilt of deliberative democracy. Criminal justice deliberation is not as important a patchas deliberation in parliament, in trade unions, even in universities. But to the extent that restorative justicedeliberation does lead ordinary citizens into serious democratic discussion about racism, unemployment,
masculinist cultures in local schools and police accountability, it is not an unimportant element of adeliberatively rich democracy.
The mediation literature shows that satisfaction with the justice of the mediation of those who arecomplained against is more important to achieving mutually beneficial outcomes than the satisfaction ofcomplainants 8 . Criminal subcultures are memory files that collect injustices 9 . Crime problems willcontinue to become deeply culturally embedded in western societies until we reinvent criminal justice as aprocess that restores a sense of procedural justice to offenders10
Finally, Frank Cullen11 has suggested that there could be no better organizing concept for criminology
than social support, given the large volume of evidence about the importance of social support for preventing
crime. The New Zealand Maori people see our justice system as barbaric because of the way it requires thedefendant to stand alone in the dock without social support. In Maori thinking, civilized justice requires theoffender’s loved ones to stand beside him during justice rituals, sharing the shame for what has happened.
Hence the shame the offender feels is more the shame of letting his loved ones down than a western senseof individual guilt that can eat away at a person. The shame of letting loved ones down can be readilytranscended by simple acts of forgiveness from those loved ones.
7 On this issue, I find the work of Tom Scheff and Suzanne Retzinger on by-passed shame illuminating. Tom Scheff and
Suzanne Retzinger, Emotions and Violence: Shame and Rage in Destructive Conflicts. Lexington Books, 1991.
8 Pruitt
9 David Matza, Delinquency and Drift, New York: Wiley, 1964, p. 102.
10 Tom Tyler, Why People Obey the Law, New Haven: Yale University Press, 1990.
11 Francis T. Cullen, Social Support as an Organizing Concept for Criminology, Justice Quarterly

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Restoring community is advanced by iterated restorative justice rituals in which social support around
specific victims and offenders is restored. At this micro level, restorative justice is an utterly bottom-up
approach to restoring community. At a meso level, important elements of a restorative justice package are
initiatives to foster community organization in schools, neighbourhoods, ethnic communities, churches,through professions and other NGOs who can deploy restorative justice in their self-regulatory practices.
At a macro level, we must better design institutions of deliberative democracy so that concern about issues
like unemployment and the effectiveness of labour market programmes have a channel through which they
can flow from discussions about local injustices up into national economic policy-making debate.
B. The Universality of Restorative Traditions
I have yet to discover a culture which does not have some deep-seated restorative traditions. Nor isthere a culture without retributive traditions. Retributive traditions once had survival value. Cultures
which were timid in fighting back were often wiped out by more determinedly violent cultures. In thecontemporary world, as opposed to the world of our biological creation, retributive emotions have lesssurvival value. Because risk management is institutionalized in this modern world, retributive emotions are
more likely to get us into trouble than out of it, as individuals, groups and nations.
The message we might communicate to all cultures is that in the world of the twenty-first century, youwill find your restorative traditions a more valuable resource than your retributive traditions. Yet sadly, thehegemonic cultural forces in the contemporary world communicate just the opposite message. Hollywood
hammers the message that the way to deal with bad guys is through violence. Political leaders frequently
hammer the same message. Yet many of our spiritual leaders are helping us to retrieve our restorative
traditions - the Dalai Lama, for example or Archbishop Desmond Tutu of South Africa.
All of the restorative values in Table 1 are cultural universals. All cultures value repair of damage to ourpersons and property, security, dignity, empowerment, deliberative democracy, harmony based on a sense ofjustice and social support. They are universals because they are all vital to our emotional survival as humanbeings and vital to the possibility of surviving without constant fear of violence. The world’s great religions
recognise that the desire to pursue these restorative justice values is universal, which is why our spiritualleaders are a hope against those political leaders who wish to rule through fear and by crushing deliberative
democracy. Ultimately, those political leaders will find that they will have to reach an accommodation withthe growing social movement for restorative justice, just as they must with the great religious movements
they confront. Why? Because the evidence is now strong that ordinary citizens like restorative justice12.
The virtues restorative justice is about restoring are viewed in admittedly different ways in different
cultures and opinion about the culturally appropriate ways of realising the vitures differ greatly. Hence,
restorative justice must be a culturally diverse social movement that accommodates a rich plurality ofstrategies in pursuit of the truths it holds to be universal. It is about different cultures joining hands as they
discover the profound commonalities of their experience of the human condition; it is about cultures learningfrom each other on the basis of that shared experience; it is about realising the value of diversity, ofpreserving restorative traditions that work because they are embedded in a cultural past. Scientificcrimninology will never discover any universally best way of doing restorative justice. The best path is thepath of cultural plurality in pursuit of the culturally shared restorative values in Table 1.
C. A Path to Culturally Plural Justice
A restorative justice research agenda to pursue this path has two elements:
1. Culturally specific investigation of how to save and revive the restorative justice practices that remain in
all societies.
2. Culturally specific investigation of how to transform state criminal justice both by making it more
restorative and by rendering its abuses of power more vulnerable to restorative justice.
12 See, for example, Alison Morris and Gabrielle Maxwell, “Juvenile Justice in New Zealand: A New Paradigm”, Australianand New Zealand Journal of Criminology 26: 72-90, 1992; Donald Clairmont, “Alternative Justice Issues for AboriginalJustice”, Atlantic Institute of Criminology, November, 1994.

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On the first point, I doubt that neighborhoods in our cities are replete with restorative justice practices
that can be retrieved, though there are some. Yet in the more micro context of the nuclear family, theevidence is overwhelming from the metropolitan US that restorative justice is alive and well and thatfamilies who are more restorative are likely to have less delinquent children than families who are punitiveand stigmatizing13.
Because families so often slip into stigmatization and brutalization of their difficult members, we needrestorative justice institutionalized in a wider context that can engage and restore such families. In mostsocieties, the wider contexts where the ethos and rituals of restorative justice are alive and ready to be
piped into the wider streams of the society are schools, churches and remote indigenous communities. If it
is hard to find restorative justice in the disputing practices of our urban neighbourhoods, the experience ofrecent years has been that they are relatively easy to locate in urban schools14. This is because of the ethos
of care and integration which is part of the educational ideal (which, at its best, involves a total rejection of
stigmatization) and because the interaction among the members of a school community tends to be more
intense than the interaction among urban neighbours. Schools, like families, have actually become more
restorative and less retributive than the brutal institutions of the nineteenth century. This is why we haveseen very successful restorative conferencing programmes in contemporary schools15 We have also seenanti-bullying programmes with what I would call a restorative ethos which have managed in some cases tohalve bullying in schools.
More of the momentum for the restorative justice movement has come from the world’s churches thanfrom any other quarter. Even in a nation like Indonesia where the state has such coercive power, thepolitical imperative to allow some separation of church and state has left religious communities as enclaves
where restorative traditions could survive, just as they are also sites where fundamentalist retributivism
can flourish. Religions like Islam and Christianity have strong retributive traditions as well as restorative
ones.
When I spoke at a conference on restorative justice in Indonesia in the late 1990s, I was struck in aconversation with three Indonesians - one Muslim, one Hindu and one Christian - that in ways I could notunderstand as an agnostic, each was drawing on a spirituality grounded in their religious experience to makesense of restorative justice. Similarly, I was moved by the spirituality of Cree approaches to restorative
justice when a number of native Canadians visited Canberra. I know there is something important I need tolearn about native American spirituality and how it enriches restorative justice. It seems clear to me that it
does enrich it, but I do not understand how. I suppose unless there are things that one can see areimportant without understanding them, one is not really an intellectual.
Asian communities are a cultural resource for the whole world. Because they have not been totallyswamped by the justice codes of the West, they are a cultural resource, just as the biodiversity of theAustralian continent supplies the entire world a genetic resource. The very people who have succumbed
least to the Western justice model, who have been insulated from Hollywood a little more and for a little
longer, are precisely those with the richest cultural resources from which the restorative justice movement
can learn.
Point 2 of the agenda is to explore how to transform state criminal justice. In our multicultural cities I
have said that we cannot rely on spontaneous ordering of justice in our neighbourhoods. There we must be
more reliant on state reformers as catalysts of a new urban restorative justice. In our cities, where
neighbourhood social support is least, where the loss from the statist takeover of disputing is mostdamaging, the gains that can be secured from restorative justice reform are greatest. When a police officer
with a restorative justice ethos arrests a youth in a tightly knit rural community who lives in a loving family,
who enjoys social support from a caring school and church, that police officer is not likely to do much betteror worse by the child than a police officer who does not have a restorative justice ethos. Whatever thepolice do, the child’s support network will probably sort the problem out so that serious reoffending does not
13 See the discussion of the evidence on this in Braithwaite, Crime, Shame and Reintegration, pp. 54-83.

14 Thorsburn.
15 Ibid.

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occur. But when a police officer with a restorative justice ethos arrests a homeless child in the metropolis
like Hiroshi, who hates parents who abused him, who has dropped out of school and is seemingly alone in
the world, it is there that the restorative police officer can make a difference that will render him more
effective in preventing crime than the retributive police officer. At least that is my hypothesis, one we cantest empirically and are testing empirically.
In the alientated urban context where community is not spontaneously emergent in a satisfactory way,
what the criminal justice system can do is construct a community of care around a specific offender or a
specific victim who is in trouble. We need an individual-centred communitarianism that can practically be
accomplished in the modern metropolis. That is what the story of Hiroshi is about. With the restorative
justice conferences being convened in multicultural metropolises like Auckland, Adelaide, Sydney,
Singapore, London, Toronto and Minneapolis the selection principle as to who is invited to the conferenceis the opposite to that with a criminal trial. We invite to a criminal trial those who can inflict most damageon the other side. With a conference we invite those who might offer most support to their own side Hiroshi’s sister, uncle and hockey coach, the victim’s daughter on the other side.
In terms of the theory of reintegrative shaming, the rationale for who is invited to the conference is thatthe presence of those on the victim’s side structures shame into the conference, the presence of supporters
on the offender’s side structures reintegration into the ritual. Conferences can be run in many different
ways from the story of Hiroshi’s conference. Maori people in New Zealand tend to want to open and close
their conferences with a prayer. The institutions of restorative justice we need to build in the city must be
culturally plural, quite different from one community to another depending on the culture of the people
involved. It is the empowerment principle of restorative justice that makes this possible - empowermentwith process control.
From a restorative perspective, the important thing is that we have institutions in civil society whichconfront serious problems like violence rather than sweep them under the carpet, yet which do so in a waythat is neither retributive nor stigmatizing. Violence will not be effectively controlled by communities
unless the shamefulness of violence is communicated. This does not mean that we need criminal justiceinstitutions that set out to maximise shame. On the contrary, if we set out to do that we risk the creation of
stigmatizing institutions16 All we need do is nurture micro-institutions of deliberative democracy that allow
citizens to discuss the consequences of criminal acts, who is responsible, who should put them right andhow. Such deliberative processes naturally enable those responsible to confront and deal with the shamearising from what has happened. And if we get the invitation list right by inviting along people who enjoy
maximum respect and trust on both the offender and victim side, then we maximize the chances that shame
will be dealt with in a reintegrative way.
D. Decline and Revival in Restorative Traditions
The traditions of restorative justice that can be found in all the world’s great cultures have been underattack during the past two centuries. Everywhere in the world, restorative ideals have suffered serious
setbacks because of the globalization of the idea of a centralized state that takes central control of justiceand rationalizes it into a punitive regime. Control of punishment strengthened the power and legitimacy ofrulers17. So did control of mercy, the power of royal or presidential pardon. What rulers really wanted was
the political power of controlling the police, the prisons and the courts. However, abuse of that power
proved at times such a threat to their legitimacy that they were forced by political opponents toinstitutionalize certain principles of fairness and consistency into the state system. Of course, the new
democratic rulers were no more enthusiastic about returning justice to the people than were the tyrants
they succeeded; the secret police continued to be important to combating organized threats to the statemonopoly of violence, the regular police to disorganized threats. The pretence that the state punished crimein a consistent, politically even-handed way, was part of the legitimation for democratically centralizedjustice. Citizens continue to see this as a pretense. They realise that whatever the law says, the reality is
one law for the rich, another for the poor; one set of rules for the politically connected, another for the
powerless.
16 Tom Scheff and Suzanne Retzinger.
17 See, for example, Michel Foucault, Discipline and Punish: The Birth of the Prison. London: Allen Lane, 1977.

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While it is a myth that centralized state law enabled greater consistency and lesser partiality thancommunity-based restorative justice, it is true that abuse of power always was and still is common incommunity justice. And it is true that state oversight of restorative justice in the community can be a checkon abuse of rights in local programmes, local political dominations and those types of unequal treatment inlocal programmes that are flagrantly unacceptable in the wider demos18. Equally it is true that restorative
justice can be a check on abuse of rights by the central state. We see it in restorative justice conferences in
Canberra when a mother asks during the conference that something be done about the police officers who
continue to use excessive force in their dealings with her son, who continue to victimize her son for things
done by others. The restorative justice ideal could not and should not be the romantic notion of shiftingback to a world where state justice is replaced by local justice. Rather, it might be to use the existence ofstate traditions of rights, proportionality and rule of law as resources to check abuse of power in local justiceand to use the revival of restorative traditions to check abuse of state power. In other words, restorative
justice constitutionalized by the state can be the stuff of a republic with a richer separation of powers19, withless abuse of power, than could be obtained either under dispute resolution totally controlled by local
politics or disputing totally dominated by the state.
The key elements of North Atlantic criminal justice that have globalized almost totally during the past
two centuries are:
1. Central state control of criminal justice.
2. The idea of crime itself and that criminal law should be codified.
3. The idea that crimes are committed against the state (rather than the older ideas that they werecommitted against victims or god ).
4. The idea of having a professionalized police who are granted a monopoly over the use of force in domestic
conflicts.
5. The idea of moving away from compensation as the dominant way of dealing with crime by building astate prisons system to systematically segregate the good from the bad and a complementary system ofasylums to segregate the mad from both the bad and the good.
6. The idea that fundamental human rights should be protected during the criminal process.
Like abolitionists, restorative justice theorists see most of these elements of the central state takeoverof criminal justice as retrograde. However, unlike the most radical versions of abolitionism, restorative
justice sees promise in preserving a state role as a watchdog of rights and concedes that for a tiny fraction of
the people in our prisons it may actually be necessary to protect the community from them by incarceration.
While restorative justice means treating many things we presently treat as crime simply as problems ofliving, restorative justice does not mean abolishing the concept of crime. In restorative justice rituals, being
able to call wrongdoing a crime can be a powerful resource in persuading citizens to take responsibility, topay compensation, to apologise, especially with corporate criminals who are not used to thinking of their
exploitative conduct in that way20 Restorative justice does not mean abolishing the key elements of thestate criminal justice system that has globalized so totally this century; it means shifting power from themto civil society, keeping key elements of the statist revolution but shifting power away from central
18 Jeremy Webber makes this point in the Canadian context: “the challenge is to reinvent aboriginal institutions so that theydraw upon indigenous traditions and insights in a manner appropriate to the new situation. This may mean inventing checks
to prevent abuse that were unnecessary two hundred years ago or which existed in a very different form”. Jeremy Webber,“Individuality, Equality and Difference: Justification for a Parallel System of Aboriginal Justice in Robert Silverman andMarianne Nielsen (eds.) Aboriginal Peoples and Canadian Criminal Justice. Toronto: Butterworths, 1992, p. 147.
19 John Braithwaite, On Speaking Softly and Carrying Sticks: Neglected Dimensions of a Republican Separation of Powers,
unpublished paper, 1996.
20 See John Braithwaite, “Corporate Crime and Republican Criminological Praxis”, in F. Pearce and L. Snider (eds.),
Corporate Crime: Ethics, Law and State. University of Toronto press, 1995.

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institutions and checking the power that remains by the deliberative democracy from below that restorative
justice enables.
So you see I have an analysis that is unfashionably universal. I believe that restorative justice will cometo be a profoundly influential social movement throughout the world during the next century firstly because
it appeals to values that are shared universally by humanity, secondly because it responds to the defects of acentralized state criminal justice model that itself has totally globalized and utterly failed in every country
where it gained the ascendency. Everywhere it has failed, there are criminologists or lawyers within thestate itself who are convinced of that failure. And given the global imperatives for states to be competitiveby being fiscally frugal, large state expenditures that do not deliver on their objectives are vulnerable tosocial movements who claim they have an approach which will be cheaper, work better and be more popularwith the people in the long run.
IV. BEYOND COMMUNITARIANISM VERSUS INDIVIDUALISM
Some criminologists in the West are critical of countries like Singapore, Indonesia and Japan where
crime in the streets is not the problem it is in the West because they think individualism in these societies
is crushed by communitarianism or collective obligation. Their prescription is that Asian societies need toshift the balance away from communitarianism and allow greater individualism. I don’t find that a very
attractive analysis.
Some Asian criminologists are critical of countries like the US and Australia because they think thesesocieties are excessively individualistic, suffering much crime and incivility as a result. According to thisanalysis, the West needs to shift the balance away from individualism in favour of communitarianism, shift
the balance away from rights and toward collective responsibilities. I don’t find that a very attractive
analysis either.
Both sides of this debate can do a better job of learning from each other. We can aspire to a society thatis strong on rights and strong on responsibilities, that nurtures strong communities and strong individuals.
Indeed, in the good society strong communities constitute strong individuals and vice versa. Our objective
can be to keep the benefits of the statist revolution. Community justice is often oppressive of rights, often
subjects the vulnerable to the domination of local elites, subordinates women, it can be proceduarlly unfair
and tends to neglect structural solutions. Mindful of this, we might reframe the two challenges posed earlier
in the lecture:
1. Helping indigenous community justice to learn from the virtues of liberal statism - procedural fairness,rights, protecting the vulnerable from domination.
2. Helping liberal state justice to learn from indigenous community justice - learning the restorative
community alternatives to individualism.
This reframed agenda resonates with the ideas of Marianne Nielsen, when she writes that Canadiannative communities “will have the opportunity of taking the best of the old, the best of the new and learningfrom others’ mistakes so that they can design a system that may well turn into a flagship of social change”21.
Together these two questions ask how we save and revive traditional restorative justice practices in a waythat helps them become procedurally fairer, in a way that respects fundamental human rights, that securesprotection against domination? The liberal state can be a check on oppressive collectivism, just as bottomup communitarianism can be a check on oppressive individualism. A healing circle can be a corrective to ajustice system that can leave offenders and victims suicidally alone; a Charter of Rights and Freedoms acheck on a tribal elder who imposes a violent tyranny on young people. The bringing together of these
ideals is an old prescription - not just liberty, not just community, but liberte, egalite, fraternite.
Competitive individualism has badly fractured this republican amalgam. The social movement for
restorative justice does practical work to weld an amalgam that is relevant to the creation of contemporary
urban multicultural republics. Day to day it is not sustained by romantic ideals in which I happen to believe
21 Neilsen, Marianne, “Criminal Justice and Native Self-Government”, in Robert Silverman and Marianne Nielsen (eds.)
Aboriginal Peoples and Canadian Criminal Justice. Toronto: Butterworths, 1992, p. 255.

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like deliberative democracy. They want to do it for Hiroshi and for an old woman who Hiroshi pushed over
one day. That is what enlists them to the social movement for restorative justice; in the process they are, I
submit, enlisted into something of wider political significance.

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