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Restorative justice is a process where all the stakeholders
affected by an injustice have an opportunity to discuss how they
have been affected by the injustice and to decide what should be
done to repair the harm. With crime, restorative justice is about
the idea that because crime hurts, justice should heal. It follows
that conversations with those who have been hurt and with those
who have afflicted the harm must be central to the process.
Empirically it happens to be the case that victims of crime are
more concerned about emotional than material reparation (Strang,
2003). Lawyers are obviously not well placed to give an account
of these emotional harms and how they might be healed. Hence,
the practice of restorative justice has become a de-professional-
izing project. Yet we will see that lawyers still have an impor-
tant, though decentred, place in a restorative justice system.
Restorative justice comes in many forms. The most common
in Europe and North America is victim-offender mediation. But
the movement, inspired by New Zealand conferring and Canadian
circle innovations, has been toward widening the circle to include
supporters of the offender, supporters of the victim and some-
times other kinds of stakeholders from the community such as
representatives of the school commu-
nity when a crime occurs at school, or
a congregation where it occurs within a
church. So the first stage under most
conferencing models is to approach the
victim and offender to ask them not
only to participate in a meeting with
each other, but also to ask them to nom-
inate who they would most like to have
support them during the conference.
When lawyers prepare for a court case,
they invite people who, as witnesses,
can inflict maximum damage on the other side; restorative jus-
tice facilitators empower stakeholders, both victims and offend-
ers, to invite the people who will provide maximum support to
their own side.
Conferrees discuss what happened and who was harmed by
it. Sometimes the offender will be asked to summarize all the
harms that have been mentioned by the participants. Then the
conversation turns to what might be done to right the wrong. A
plan with specific commitments on the part of the offender will
be agreed upon and then this agreement will be signed by the
victim, the offender and other stakeholders who have obligations
under the agreement. Some programs have follow-up confer-
ences to check implementation of the agreement and some even
hold a celebration circle when implementation is completed.
Citizens beyond the victim and the offender might also sign
the agreement because they assume responsibility for some
aspect of the agreement. For example, the victim of a violent
crime might ask that the offender attend an anger management
program. A supporter of the offender says that after a previous
offense the judge ordered attendance at an anger management
program. The offender attended a couple of times and then just
stopped bothering to attend. An uncle chimes in and offers to
pick the offender up every Tuesday evening at 7 pm to ensure
that this time he attends. The offender agrees that attendance
would be good for him, but the program is confronting and an
emotional struggle for him. So he would like the weekly support
of his uncle to make him attend. Thus the uncle signs the agree-
ment as well.
Note how restorative justice involves a shift from passive
responsibility to which offenders are held by professionals for
something they have done in the past to citizens taking active
responsibility for making things right into the future. Active
responsibility is a virtue of civic participation. As in the anger
management example, restorative jus-
tice is about creating participatory
spaces where active responsibility might
be taken by offenders, but not only by
offenders. Active responsibility is some-
times shared by victims. Occasionally
burglars will explain to victims in a
conference why their house is such an
attractive target for practitioners of their
craft. The burglar will assist the victim,
perhaps with help from a police officer
who is also in attendance, to design a
target hardening strategy for which the victim voluntarily decides
to take responsibility.
The evaluation literature now shows that restorative justice
agreements are consistently more likely to be implemented in
part or in full than court orders, even though sanctions may attach
to non-compliance with court orders but not conference agree-
ments (Latimer Dowden and Muise, 2001; Braithwaite, 2002).
The reason for this success is that uncles are more effective at
supporting agreements to attend an anger management program,
to make regular compensation payments to victims, to do com-
munity service work than are judges. This may be one reason
why recent meta analyses and literature reviews also find crim-
inal cases assigned to restorative justice have statistically sig-
Note how restorative justice involves a
shift from passive responsibility to
which offenders are held by
professionals for something they have
done in the past to citizens taking active
responsibility for making things right
into the future. Active responsibility is
a virtue of civic participation.
28 The Good Society, Volume 13, No. 1, 2004 • Copyright © 2004 The Pennsylvania State University, University Park, PA
SYMPOSIUM
Restorative Justice and De-Professionalization
John Braithwaite
nificantly lower reoffending rates than cases in non-restorative
justice control groups (Latimer Dowden and Muise, 2001;
Braithwaite, 2002; Nugent Williams and Umbreit, 2003).
Criminal justice with higher levels of civic participation sim-
ply works better most of the time in comparison to punitive
justice imposed by professionals—not only in terms of crime
prevention, but also in terms of stakeholders such as victims
and offenders reporting that they have been treated fairly, not
discriminated against because of their race or gender, had their
rights respected, had their fear of re-victimization reduced, their
anger reduced, and more (Braithwaite, 2002; Strang, 2003;
Poulson, 2003).
But most of the time does not mean all the time. While
restorative justice often works very well with corporate crime,
for example, often it does not work well
with business executives who are moved
by the bottom line of their firm’s per-
formance (Braithwaite, 2002: 17–24;
62–66). Some are simply not moved by
learning about how they have hurt vic-
tims. When this is the case, the state
must escalate its regulatory strategy
from one based on restorative justice to
one based on deterrence. But there are
also many reasons why deterrence fails.
One is that the business might respond to heavy legal penalties
by going bankrupt. Then an incapacitative escalation is needed
in response to the failure of deterrence. So the regulator might
negatively licence the offender from ever holding a position of
responsibility in a business organization that trades with the pub-
lic or it might put the offender in prison. Hence a restorative jus-
tice strategy must be backed up by a responsive regulatory strat-
egy that assumes restorative justice will often fail. The idea of
responsive regulation is that we have a preference for delibera-
tive forms of regulation at the base of the regulatory pyramid,
but we are willing to escalate through more and more interven-
tionist strategies when these fail to protect the community from
injustice. The pyramidal strategy seeks to cover the weaknesses
of one regulatory strategy with the strengths of another (see
Figure 1). It is a dynamic strategy that assumes all actors have
multiple selves—a socially responsible self that we can appeal
to through civic deliberation, a rational calculating self that we
can touch with deterrence and irrational and incompetent selves
that might only be managed by incapacitation. It is not a static
triage theory that says these are the
cases that are suitable for restorative
justice, and these are the more serious
matters we must deter or incapacitate.
One reason is that it is more serious
injustices—notably violent as opposed
to property crime—where the evidence
is beginning to suggest restorative jus-
tice has the greatest comparative advan-
tage over punitive justice.
This logic of the primacy of restora-
tion over deterrence and intervention applies in the global arena
as well that of domestic justice. Hence we are best to assume
that even the socially irresponsible and seemingly irrational lead-
ership of North Korea is best responded to with restorative jus-
tice as a first preference. Diplomacy should appeal to the socially
THEORY OF DEMOCRATIC PROFESSIONALISM
The idea of responsive regulation is
that we have a preference for delibera-
tive forms of regulation at the base
of the regulatory pyramid, but we
are willing to escalate through more
and more interventionist strategies
when these fail to protect the
community from injustice.
Volume 13, Number 1, 2004 29
ASSUMPTION
Incompetent or
Irrational Actor
Rational Actor
Virtuous Actor
DETERRENCE
RESTORATIVE JUSTICE
INCAPACITATION
Figure 1: Toward an Integration of Restorative, Deterrent and Incapacitative Justice
responsible side of their engagement as a member of the world
community. The nuclear non-proliferation regime has been
remarkably successful in persuading the most evil of tyrants to
abandon nuclear weapons programs. President Kennedy pre-
dicted more than forty years ago that by the 1970s there would
be dozens of nuclear weapons states. One reason this has not
happened is that dialogic inspections work. The nuclear non-pro-
liferation regime works better than anyone could reasonably have
expected, even in many hard cases like Iraq and Iran and South
Africa. Responsive regulatory theory says it will work especially
well when it is backed by a willingness to escalate to more deter-
rent and incapacitative measures. Yet the possibility of escala-
tion must be threatening in the background, not threatened in the
foreground of deliberative problem solving. The psychological
evidence is that making threats engen-
ders defiance (Sherman, 1993) or reac-
tance (Brehm and Brehm, 1981). We
will not persuade leaders to put their
socially responsible self forward by rat-
tling sabres at them or denigrating them
as an axis of evil. Dialogue from a posi-
tion of quiet strength works when the
world community insists, as a united
voice, that threats to the peace of inno-
cents will not be allowed to stand. As
with violent crime in the streets and corporate crime in the suites,
the evidence suggests that restorative diplomacy can work with
most states most of the time (Braithwaite, 2002: Chapter 6). The
most recent work on restorative justice examines not only war-
lords who we ask to disarm but the citizens who have been dam-
aged by war in a way that wills them to pass hatreds on to the
next generation (Howley, 2003). Hatreds, in other words, must
be healed from the bottom up as well as from the top down. So
while the restorative diplomacy of professional diplomats is
important, we constantly make the mistake of neglecting de-pro-
fessionalized restorative justice for the victims of war.
The best place to start with a de-professionalized justice proj-
ect is with children in schools, whether the injustice they have
witnessed is an horrific war crime in which their parents were
killed or tortured, or a more banal incident of school bullying.
There is more to the democratic virtue of restorative justice than
returning conflicts to the citizens from whom they have been
stolen. Western democratic institutions were planted in the shal-
low soil of societies where disputes had been taken over by the
king. Disputing over daily injustices is where we learn to become
democratic citizens. And the learning is more profound when
those daily injustices reveal deeply structured patterns of injus-
tice. Engagement with them is de Tocqueville’s apprenticeship
of liberty. In Benjamin Barber’s terms, democratic disputing is
educative, central to learning to be free:
We must be taught to be thinking, competent, legal persons
and citizens. We are born belonging to others; we have to learn
how to sculpt our individuality from common clay. The liter-
acy to live in civil society, the competence to participate in
democratic communities, the ability to think critically and act
deliberately in a pluralistic world, the empathy that permits
us to hear and thus accommodate others, all involve skills that
must be acquired. Excellence is the product of teaching and
is liberty’s measure (Barber 1992: 4–5).
I remember in 1991, in the early days of restorative justice
conferencing in Australia, suggesting to my colleague Terry
O’Connell that it was a mistake to allow young children to attend
and participate in conferences. Sometimes it is, but basically
empirical experience has proved me wrong. In conferences, chil-
dren are learning to be democratic cit-
izens. The adults are mostly wise
enough to make allowance for the unso-
phistication of much of what they say
and to support them, help them estab-
lish the relevance of their point of view.
Often it is the very unsophistication of
the child’s legitimate perspective that is
so moving: “I’ve listened to what
you’ve said about [my big brother]. It’s
not true. He is always kind to me; he
helps me when I don’t know what to do. I don’t know any boy
who is kinder than my brother.”
All children personally encounter bullying in school through
their own experiences or those of their friends being perpetrators
or victims. All children therefore can be given the opportunity of
learning to be democratic citizens through taking active respon-
sibility for the bullying problem in their schools. The evidence is
that restorative approaches to school bullying work in reducing its
incidence, but this may be the less important outcome than the
teaching of democratic citizenship (Morrison, 2003).
Once citizens learn to be actively responsible as opposed to
learning to rely totally on protection by a state that enforces pas-
sive responsibility, they are more likely to become active in social
movement politics. The lessons of restorative justice need not be
confined to the realm of the courtroom; NGOs offer another
great avenue for revitalizing meaningful forms of citizen par-
ticipation in a democracy. They can be as relevant to democra-
tizing global institutions such as the IMF, the World Bank and
the WTO as they can be to re-democratizing the state (Braithwaite
and Drahos 2000).
NGO influence can feed back into restorative justice confer-
ences as advocacy of making the personal political, by invoking
the possibility of agitating for structural change. Most impor-
tantly, the justice of the people can put pressure on the justice
of the law and create change. This indeed is a shared project of
SYMPOSIUM
Hatreds, in other words, must be
healed from the bottom up as well as
from the top down. So while the
restorative diplomacy of professional
diplomats is important, we constantly
make the mistake of neglecting
de-professionalized restorative
justice for the victims of war.
30 The Good Society
the partnerships restorative justice advocates seek to forge with
other social movements against domination.
However, just as we want the justice of the people to have an
institutional channel to speak to the justice of the law, so we
should want the justice of the law to filter down into the jus-
tice of the people (Braithwaite and Parker, 1999). The tyranny
of the majority is always a risk in the justice of the people. We
do need the rule of law, interpreted by legal professionals, to
provide a check and balance on the many possible tyrannies of
the justice of the people. It is not good enough to conclude that
empirically citizens feel their rights are better protected in most
restorative justice conferences than in court cases (so the
restorative justice path is the path to a richer rights culture).
We also need an analysis of what should happen when rights
are abused in restorative justice processes, as they often are
(Braithwaite, 2002: Chapter 5).
The youth conferencing legislation of the Australian state
of New South Wales guarantees young people free access to a
legal advice hotline if they are offered an opportunity for a con-
ference. So if for example they or their parents feel a confer-
ence seeks to impose on them a more onerous punishment than
a court would ever impose for the same offense, they can ask
for the adjournment of a conference while they seek advice
from a lawyer on the hotline. Indeed, they can do this after they
have signed a conference agreement, repudiate the agreement
and take their chances in court. Such legal safeguards are vital
to a rule of law that secures republican freedom as non-domi-
nation (Pettit, 1997). Just as demonstrated in the enforcement
pyramid, deliberative democracy does most of the work of
securing compliance with the law but more professionalised
forms of law back it up when it fails, so restorative justice does
most of the work of protecting rights and securing freedom as
non-domination. But when restorative justice fails to do so,
there is a professional justice of lawyers watching and stepping
in to check any civic participation that produces tyranny. That
intervention of course should be grounded in laws that a dem-
ocratically elected legislature has enacted to create minority
rights that can fly in the face of any majority consensus pro-
duced by a deliberative process. Hence, like Olson and Dzur
(2003) my argument is not for doing without professionalism,
but for nurturing a non-dominating professionalism that facil-
itates civic engagement and facilitates checking one form of
engagement with another.
Conclusion
The use of restorative justice circles to confront problems that
all children confront—such as school bullying—can be a uni-
versal apprenticeship in civic engagement. The fact that it works
in reducing bullying is a nice bonus. It works because citizen
commitment is the stuff of effective and just social control. A
society where we relied mainly on lawyers to enforce rights
would be a dangerous society. A society where our reliance on
civic engagement to secure rights was so total as to abolish legal
professionalism would also be tyrannous in conditions of com-
plex modern societies.
John Braithwaite is Professor in the Law Program and the Chair
of the Regulatory Institutions Network at Australian National
University.
References
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Politics of Education and Future of America. New York: Oxford
University Press.
Braithwaite, John. 2002. Restorative Justice and Responsive
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Braithwaite, John and Peter Drahos. 2000. Global Business
Regulation. Melbourne: Cambridge University Press.
Braithwaite, John and Christine Parker. 1999. “Restorative Justice
is Republican Justice.” In Restoring Juvenile Justice: An Exploration
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Brehm, Sharon S. and Jack W. Brehm. 1981. Psychological Reactance:
A Theory of Freedom and Control. New York: Academic Press.
Howley, Patrick 2003. Breaking Spears and Mending Hearts:
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Volume 13, Number 1, 2004 31
