52 Pages Posted: 3 Mar 2006
As the restorative justice movement surges breathlessly forward, its proponents feel an irresistible urge to glance back. Discontented with the view that restorative justice is a novel and innovative approach to criminal justice, many scholars have begun to disseminate a far older ideological and institutional history than the scant 30 years or so that restorative justice has been considered a real criminal justice movement. John Braithwaite, considered by many as the world’s foremost scholar on restorative justice, has declared no less than that “restorative justice has been the dominant model of criminal justice throughout most of human history for all of the world’s peoples.” Others have added that “humans have used restorative justice for the larger part of their existence.”
These bold assertions, that restorative justice approaches are far older than retributivist or rehabilitative models, are more than just historical claims of equality - they are clear signals of legitimacy and illegitimacy. With this historical move, scholars are claiming not only that restorative justice approaches have modern utility, but also that they are more “traditional” than our modern approaches. These restorative justice histories are an attempt to show that modern justice is “bad” and that traditional justice, couched in restorative justice principles, is “good.” As proponents have argued “[f]orms of restorative justice, as we could find them in acephalous and especially in early state societies, seem to be the better answer to the crime problem of today’s societies.”
In this article, I explore the history put forward by these proponents and compare their uses of history to those often employed in the more mainstream narratives of feature fils. In the end, it appears that restorative justice scholars go too far in their uses of history. There is no need for restorative justice scholars to create a “golden age” of past mercy and restoration. The fact that past societies employed criminal justice processes that were simultaneously brutal, illiberal, and class-conscious, can be accepted. That these processes may have existed simultaneously with more restorative processes may be accepted - but even these processes, whether victim-oriented, or seeking to restore balance, are nevertheless radically incompatible with our current ideals of individual sovereignty and liberty. There is simply no reason why advocates need to create a false context about how “it used to be.” Instead, they should focus on what it should be. Tradition is a powerful force, but it is not the only force. Indeed, overreaching attempts to create history where one does not exist seem like a waste of mental effort and rhetorical capital.
Keywords: Restorative Justice, History, Anthropology, Retribution, Vengeance, Hollywood, Law Office History, Objectivity, Methodology
Suggested Citation: Suggested Citation
Sylvester, Douglas J., Myth in Restorative Justice History. Utah Law Review, pp. 1445-1496, 2003. Available at SSRN: https://ssrn.com/abstract=886201