Restorative Justice Across the East and the West (K. van Wormer,ed.)

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.

Copyright © 2008 by Casa Verde Publishing. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, or otherwise without the prior permission of the Publisher. First Published in 2008. For all international orders, subscriptions and submissions contact: Casa Verde Publishing [email protected] http://www.cv-pub.com Casa Verde Publishing International Distribution Center 187 Da Xing Rd., 334 Bade City, Taoyuan, Taiwan. Casa Verde Publishing UK Distribution & Support Office 36 Chretien Road, Manchester, M22 4FS United Kingdom Casa Verde Publishing visit our online store http://www.cv-pub.com 10 9 8 7 6 5 4 3 2 1 09 08 07 06 05 04 03 02 01 00 Printed in Taiwan

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

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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.

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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.

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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-


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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


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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


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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.


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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


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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.


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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.

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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


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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

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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


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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


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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


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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


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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).


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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


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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


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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


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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.


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Table 2.1: Summary Content of the Peace Education Curricula

Session Theme Objective Content

1. Introduction

• Introduction • Norms setting • Ice-breaking

• Ice-breaking games • Setting group norms • Signing group contract

2. Self- understanding

• Recognizing personality individual uniqueness

• Making a passport • The Bingo Game: Knowing others

3. • Understanding the existence of emotions • Familiarizing with different emotional states • Knowing emotional behavior

• Worksheet 1: Drawing your face • Worksheet 2: Finding words about emotion • Worksheet 3: Differentiating positive negative emotions

4. • Knowing about how to express control emotion

• Game: Mood matching cards • Worksheet 4: Self-reflection on emotion state

5. • Knowing about how to be a congruent individual • Learning the relationship between emotion action

• Game: Mood One-Two-Three • Worksheet 5: Emotion thermometer • Game: Listening to songs

6.

Emotion Control, Anger Management Mid-Term Evaluation

• Understanding the belief system of human being • Teaching skills in anger management • Reflecting what we have learnt

• Video show: Belief system • Role-play: Belief emotion matching • Worksheet 6: Goodbye to irrational beliefs • Filling in the mid-term evaluation questionnaire

7. • Knowing about perception • Learning creativity • Knowing steps for solving problems

• Picture show: Observation perception • Mini-lecture: Different perceptions • Game: Unlimited creativity

8. • Learning how to set goals for problem-solving • Understanding EQ problem solving abilities

• Game: Blind searching in the sea • Game: Where are the alphabets? • Game: Building a bridge

9.

Problem Solving Skills

• Exploring priority of values • Learning inter-personal communication skills

• Video show: “The Boss up there” • Group discussion: Communication thinking


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Table 2.1 (continued)

Session Theme Objective Content

10. Positive Values

• Knowing relationships between values and society

• Mass program: In the society • Group discussion: Self values

11. Interpersonal Communi-cation Skills

• Teaching listening concentration skills

• Game: A big television • Game: Blinder drawing

12. • Teaching verbal expression presentation skills

• Game: An advertisement show

13. • Enhancing non-verbal communication skills • Learning active listening skills

• Game: Who is the leader? • Game: A silent mouth • Worksheet 7: Non-verbal skills

14. Conclusion Final Evaluation

• Understanding life challenges • Evaluating the effectiveness

• Mini-lecture on life challenge • Evaluation: Filling in the final 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.


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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,


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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


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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.


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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).


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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.


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REFERENCES

Apple Daily (1999), Four Offenders Were Sentenced to Life Imprisonment, A2, January, 31 (in Chinese).

Arora, C.M.J. (1994), Is There Any Point in Trying to Reduce Bullying in Secondary Schools? Educational Psychology in Practice, Vol. 10, No. 3, pp. 155-62.

Bazemore, G. and Umbreit, M. (1997), Balanced and Restorative Justice for Juveniles: A Framework for Juvenile Justice in the 21st Century, Center for Restorative Justice and Mediation: St. Paul, MN.

Braithwaite, J. (1989), Crime, Shame and Reintegration, Cambridge University Press: Cambridge, UK.

Hopkins, B. (2004), Just Schools: A Whole School Approach to Restorative Justice, Jessica Kingsley: London.

Limper, R. (2000), Cooperation Between Parents, Teachers, and School Boards to Prevent Bullying in Education: An Overview of Work Done in the Netherlands, Aggressive Behavior, Vol. 26, pp. 125-35.

Lo, T.W.; Wong, S.W., and Maxwell, G. (eds.), (2005), Alternatives to Prose-cution: Rehabilitation and Restorative Models of Youth Justice, Marshall Cavendish: London.

McCold, P. (2003), Primary Restorative Justice Practices, in A. Morris and G. Maxwell, (eds.), Restorative Justice for Juveniles: Conferencing, Media-tion, and Circles, Oxford University Press, pp. 41-58.

Mediation Services (2001), Victim Offender Mediation: Deepening Our Prac-tice Manual. Mediation Services in Canada: Manitoba, Canada.

Ming Pao Daily (1999), Teen Gangsters Sexually Assaulted a 13 Year Old Girl for 3 Hours, A3, February 5 (in Chinese).

———(2001), A Form-Two Boy Chopped His Classmates, A6, November 8 (in Chinese).

O’Connell, T.; Wachtel, B., and Wachtel, T. (1999), Conferencing Handbook. The New and Real Justice Training Manual. The Piper’s: Pipersville, PA.

O’Moore, A.M. and Minton, S.J. (2005), Evaluation of the Effectiveness of an Anti-Bullying Program in Primary Schools, Aggressive Behavior, Vol. 31, pp. 609-22.

Oriental Daily (1999), The Gang Involved in Burning the Dead Body Found Guilty of Murder, A1, January, 28 (in Chinese).

Rigby, K. (1996), Bullying in Schools: What to Do About It, Jessica Kingsley: London.


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Rol, E. (2000), Bullying in School: Three National Innovations in Norwegian Schools in 15 years, Aggressive Behavior, Vol. 26, pp. 135-43.

Smith, P.K. and Sharp, S. (eds.) (1994), School Bullying: Insights and Per-spectives, Routledge: London.

Suckling, A. and Temple, C. (2002), Bullying: A Whole-School Approach, Jes-sica Kingsley: London.

Sullivan, K. (2000), The Anti-Bullying Handbook, Oxford University Press, New York.

The Sun (1999), Stormy Teenagers, A1, October, 15 (in Chinese). Thompson, D.; Arora, T., and Sharp, S. (2002), Bullying: Effective Strategies

for Long-Term Improvement, Routledge: London. Van Ness, D.; Morris, A., and Maxwell, G. (2003), Introducing Restorative Jus-

tice, in A. Morris and G. Maxwell (eds.), Restorative Justice for Juveniles: Conferencing, Mediation, and Circles, Oxford University Press: New York.

Wachtel, T (1997), Real Justice, The Piper’s: Pipersville, PA. Walgrave, L. (2003), On Restoration and Punishment: Favorable Similarities

and Fortunate Differences, in A.Morris and G. Maxwell (eds.), Restorative Justice for Juveniles: Conferencing, Mediation, and Circles, Oxford Uni-versity Press, New York.

Wong, D.S.W. (1996), Paths to Delinquency: Implications for Juvenile Justice in Hong Kong and China, dissertation, University of Bristol, UK.

———(2001), Pathways to Delinquency in Hong Kong and Guangzhou (South China), International Journal of Adolescence Youth, Vol. 10, No. 12, pp. 91-115.

———(2004), School Bullying and Tackling Strategies in Hong Kong, Inter-national Journal of Offender Therapy and Comparative Criminology, Vol. 48, No. 5, pp. 537-53.

Wong, D.S.W. and Lee, S.T. (2005), Strategies for Tackling School Bullying: A Whole School Approach, in W.L. Lee (ed.), Working With Youth-at-Risk in Hong Kong, Hong Kong University Press, Hong Kong.

Wong, D.S.W. and Lo, T.W. (2002), School Bullying in Secondary Schools: Teachers’ Perceptions and Tackling Strategies, Educational Research Journal, Vol. 17, No. 2, pp. 251-72 (in Chinese).

Wong, D.S.W.; Lee, M.F., and Tsang, S.Y. (2004), Victim Offender Mediation Manual. Hong Kong: Breakthrough (in Chinese).


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Wong, D.S.W.; Lok, P.P; Lo, T.W., and Ma, S.K. (2002), A Study of School Bullying in Primary Schools in Hong Kong, Department of Applied Social Studies, City University of Hong Kong: Hong Kong (in Chinese).

Wong, D.S.W.; Ngan, M.H.; Cheng, H.K., and Ma, S.K. (2007), The Ef-ectiveness of Restorative Whole-School Approach in Tackling Bullying in Secondary Schools, Department of Applied Social Studies, City Univer-sity of Hong Kong: Hong Kong.

Zehr, H. (1990), Changing Lenses: A New Focus of Crime and Justice, Herald: Scottsdale, PA.

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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.


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“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


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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-


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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


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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).


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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).


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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


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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


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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


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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


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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.


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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).


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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


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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.


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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


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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


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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.


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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


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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


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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,


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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,


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(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


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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


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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-


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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


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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


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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.


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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


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


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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


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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


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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-


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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


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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


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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.


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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


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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.


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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-


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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.


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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.


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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?


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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.


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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


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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-


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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?


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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.


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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.


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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


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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.”


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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


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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.”


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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


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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-


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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.


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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


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


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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

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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


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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


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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


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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


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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


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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.


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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


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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

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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


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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


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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.


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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


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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.


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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:


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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


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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.


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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:

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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


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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).


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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.


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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:


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(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-


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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


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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.


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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).

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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


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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


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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


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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).


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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


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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).


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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).


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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-


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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).


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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).


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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


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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


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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).


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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-


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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


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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.


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Acorn, A. (2004), Compulsory Compassion: A Critique of Restorative Justice, University of British Columbia Press: Vancouver, Canada.

Babo-Soares, D. (2004), Nahe Biti: The Philosophy and Process of Grassroots Reconciliation (and Justice) in East Timor. The Asia Pacific Journal of Anthropology Vol., 5, No. 1, pp. 15-33.

Ball, P.; Spirer, H., and Spirer, L. (2000), Making the Case, Investigating Large Scale Human Rights Violations Using Information Systems and Data Analysis, American Association for the Advancement of Science: Wa-shington, D.C.

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Bass, G.J. (2000), Staying the Hand of Vengeance: The Politics of War Crimes Tribunals, Princeton University Press: Princeton, NJ.

Braithwaite, J. (1989), Crime, Shame, and Reintegration, Cambridge University Press: Cambridge, MA.

Braithwaite, J. and Strang, H. (eds.), (2000), Restorative Justice: Philosophy to Practice, Ashgate: Burlington, VT.

Burgess, P. (2004), Justice and Reconciliation in East Timor: The Relationship Between the Commission for Reception, Truth, and Reconciliation and the Courts, Criminal Law Forum, Vol. 15, pp. 135-58.

Buur, L. (2002), Monumental Historical Memory: Managing the Truth in the Everyday Work of the South African Truth and Reconciliation Commis-sion, in D. Posel and G. Simpson (eds.), Commissioning the Past: Under-standing South Africa’s Truth and Reconciliation Commission, Witwaters-rand University Press: Johannesburg, South Africa.

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Chopra, J. (2002), Building State Failure in East Timor, Development and Change, Vol. 33, No. 5, pp. 979-1000.

Cohen, D. (2003), Intended to Fail: The Trials Before the Ad Hoc Human Rights Court in Jakarta, International Center for Transitional Justice: New York..


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Cox, D. and Pawar, M. (2006), The Field of Conflict and Post Conflict Reconstruction: Programs and Strategies, in D. Cox and M. Pawar (eds.), International Social Work: Issues, Strategies, and Programs, Sage: Thou-sand Oaks, CA.

Daly, E. and Sarkin, J. (2007), Reconciliation in Divided Societies: Finding Common Ground, University of Pennsylvania Press: Philadelphia, PA.

Dinnen, S. (2006), Restorative Justice and the Governance of Security in the Southwest Pacific, in D. Sullivan and L. Tifft (eds.), Handbook of Resto-rative Justice: A Global Perspective, Routledge: New York.

Freeman, M. (2006), Truth Commissions and Procedural Fairness, Cambridge University Press: Cambridge, MA.

Funabashi, Y. (ed.), (2003), Reconciliation in the Asia-Pacific, United States Institute of Peace Press: Washington, D.C.

Glicken, M.D. and Sechrest, D.K. (2003), The Role of the Helping Professions in Treating the Victims and Perpetrators of Violence, Allyn and Bacon: Boston, MA.

Govier, T. (2006), Taking Wrongs Seriously: Acknowledgement, Reconciliation, and the Politics of Sustainable Peace, Humanity: Amherst, NY.

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Hayner, P. (2001), Unspeakable Truths: Confronting State Terror and Atrocity, Routledge: New York.

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Howley, P. (2002), Breaking Spears and Mending Hearts: Peacemakers and Restorative Justice in Bougainville, Zed: London.

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Kingston, J. (2006), Balancing Justice and Reconciliation in East Timor, Cri-tical Asian Studies, Vol. 38, No. 3, pp. 271-302.


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Llewellyn, J.L. (2006), Restorative Justice in Transitions and Beyond: The Justice Potential of Truth-Telling Mechanisms for Post-Peace Accord Societies, in T.A. Borer (ed.), Telling the Truths: Truth Telling and Peace Building in Post-Conflict Societies, University of Notre Dame Press: Notre Dame, IN.

Lubis, T.M. (2003), East Timor: A Nation Divided, in Y. Funabashi (ed.), Reconciliation in the Asia-Pacific, United States Institute of Peace Press: Washington, D.C.

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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.


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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.

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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


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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


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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-


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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).


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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


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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-


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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:


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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.


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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-


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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:


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“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


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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


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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


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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


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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


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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


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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).


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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


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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-


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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-


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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).


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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.


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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


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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.


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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-


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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


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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.


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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


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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.


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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


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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-


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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


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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


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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-


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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.


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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-


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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).


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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-


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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.”


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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-


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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,”


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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


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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-


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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


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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.


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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.


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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.


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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”


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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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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-


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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-


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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


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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,


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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).


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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


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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.


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Table 13.1

ANCIENT PATTERN CURRENT PATTERN

Crime Injury to victims and their families in the context of the community

Violations of the law

Parties Victims, offenders, community and government

Offenders and government

Goal Repair damage and reestablish right relationships

Reduce future lawbreaking through rehabilitation, 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


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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.


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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-


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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


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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-


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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


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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:


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“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


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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


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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


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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


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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-


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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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Abram, D. (1996), The Spell of the Sensuous: Perception and Language in a More-Than-Human World, Vintage: New York.

Baldwin, D.; DeLuce, J., and Pletsch, C. (eds.), (1994), Beyond Preservation: Restoring and Inventing Landscapes, Minneapolis: University of Minne-sota Press: Minneapolis, MN.

Braithwaite, J. (2000), Repentance, Rituals and Restorative Justice, Journal of Political Philosophy, Vol. 8, No.2, pp. 115-31.

Bugbee, H. (1958), The Inward Morning, Bald Eagle: State College, PA.


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Burnside, J. and Baker, N. (eds.), (1994), Relational Justice: Repairing the Breach, Waterside: Winchester, UK.

Besthorn, F.H. (2000), Toward a Deep-Ecological Social Work: Its Environ-mental, Spiritual and Political Dimensions, The Spirituality and Social Work Forum, Vol. 7, No. 2, pp. 2-7.

———(2001), Transpersonal Psychology and Deep Ecological Philosophy: Exploring Linkages and Applications for Social Work, Social Thought: Journal of Religion in the Social Services, Vol. 22, No. 2, pp. 23-44.

———(2002). Radical Environmentalism and the Ecological Self: Rethinking the Concept of Self-Identity for Social Work Practice, Journal of Progres-sive Human Services, Vol. 13, No. 1, pp. 53-72.

Besthorn, F.H. and Canda, E.R. (2002), Revisioning Environment: Deep Ecolo-gy for Education and Teaching in Social Work. Journal of Teaching in Social Work, Vol. 22, No. 2, pp. 79-101.

Capra, F. (1996), The Web of Life: A New Scientific Understanding of Living Systems, Anchor: New York.

Cowell, M. (1993), Ecological Restoration and Environmental Ethics, Environ-mental Ethics, Vol. 15, No. 1, pp. 19-32.

Daly, K. (2000). Revisiting the Relationship Between Retributive and Resto-rative Justice, in H. Strang and J. Braithwaite (eds.), Restorative Justice: Philosophy to Practice, Ashgate: Aldershot, UK.

Drengson, A.R. and Inoue, Y. (eds.). (1995), The Deep Ecology Movement: An Introductory Anthology, North Atlantic: Berkeley, CA.

Elliot, R. (1997) Faking Nature: The Ethics of Environmental Restoration, Routledge: New York.

Findlay, M. (2000), Decolonizing Restoration and Justice: Restoration in Tran-sitional Cultures, Howard Journal of Criminal Justice, Vol. 39, No. 4, pp. 398-411.

Fox, S. (1981), John Muir and His Legacy: The American Conservation Movement, Little-Brown: Boston, MA.

Friskics, S. (2001), Dialogical Relations with Nature, Environmental Ethics, Vol. 23, No. 4, pp. 391-410.

Gunn, A. (1991), The Restoration of Species and Natural Environments, Environmental Ethics, Vol. 13, No. 3, pp. 291-310.

Harris, M.K. (1998), Reflections of a Skeptical Dreamer: Some Dilemmas in Restorative Justice Theory and Practice, Contemporary Justice Review, Vol. 1, pp. 57-69.


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Hays, S.P. (1972), Conservation and the Gospel of Efficiency: The Progressive Conservation Movement, 1890-1920, Athenaeum: New York.

Jackson, L.; Lopoukhine, N., and Hillyard, D. (1995), Ecological Restoration: A Definition and Comments, Restoration Ecology, Vol. 3, No. 1, pp. 71-75.

Jarrett, H. (ed.) (1958), Perspectives on Conservation: Essays on America’s Natural Resources, Resources for the Future: Baltimore, MD.

Johnstone, G. (2002), Restorative Justice: Ideas, Values Debates, Willan: Port-land, OR.

Katz, E. (1991), The Ethical Significance of Human Intervention in Nature, Restoration and Management Notes, Vol. 9, pp. 90-96.

———(1997), Nature as Subject: Human Obligation and Natural Community, Rowman and Littlefield: New York.

Lovelock, J., Lovelock, J.E., and Tickell, C. (2006), The Revenge of Gaia: Earth’s Climate Crisis and the Fate of Humanity, Basic: New York.

McCold, P. (2000), Toward a Holistic Vision of Restorative Juvenile Justice: A Reply to the Maximalist Model, Contemporary Justice Review, Vol. 3, No. 4, pp. 357-414.

Morris, R. (1994), A Practical Path to Restorative Justice, Rittenhouse: Toron-to, Canada.

Naess, A. (1989), Ecology, Community and Lifestyle: Outline of an Ecosophy, Cambridge University Press: New York.

Oelschlaeger, M. (1991), The Idea of Wilderness from Prehistory to the Age of Ecology, New Haven, CT: Yale University Press: New Haven, CT.

Sessions, G. (ed.) (1995), Deep Ecology for the 21st Century: Readings on the Philosophy and Practice of the New Environmentalism, Shambhala: Bos-ton, MA.

Shi, D.E. (1985), The Simple Life: Plain Living and High Thinking in American Culture, Oxford University Press: New York.

Sullivan, D. and Tifft, L. (1998), Criminology as Peacemaking: A Peace-Orien-ted Perspective on Crime, Punishment, and Justice That Takes Into Ac-count the Needs of All, The Justice Professional, Vol. 11, pp. 5-34.

———(2001), Restorative Justice: Healing the Foundations of Our Everyday Lives, Willow Tree: Monsey, NY.

Taraschi, S. (1998), Peacemaking Criminology and Aboriginal Justice Initia-tives as a Revitalization of Justice, Contemporary Justice Review, Vol. 1, No. 1, pp. 103-21.


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Van Ness, D., and Strong, K.H. (1997), Restoring Justice, Anderson: Cincinnati, OH.

Van Wormer, K. (2001), Restoring justice, USA Today Magazine, Vol. 13, No. 130, pp. 32-35.

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Van Wormer, K.; Besthorn, F.H., and Keefe, T. (2007), Human Behavior and the Social Environment: Groups, Communities, and Organizations, Ox-ford University Press: New York.

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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


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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

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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,


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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


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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


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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


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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


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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


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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.


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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.


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(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).


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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


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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


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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,


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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.


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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-


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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:


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(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


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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.


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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


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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.


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Adams, P. and Chandler, S.M. (2004), Responsive Regulation in Child Welfare: Systemic Challenges to Mainstreaming the Family Group Conference, Journal of Sociology and Social Welfare, Vol. 31, No.1, pp. 93-116.

Aleaz, K.P. (2004), Some Features of a Dalit Theology, Asia Journal of Theo-logy, Vol. 18.

Austin, R.D. (1995), Peacemaking Demonstration, video, Yvonne Yazzie Pro-ductions: Stanford, CA.

Bazemore, G. and O’Brien, S. (2003), The Quest for a Restorative Model of Rehabilitation: Theory-for-Practice and Practice-for-Theory, in L. Wal-grave (ed.), Restorative Justice the Law, Willan: Portland, OR.

Bazemore, G. and Walgrave, L. (1999), Restorative Juvenile Justice, in G. Bazemore and L. Walgrave (eds.), Restorative Juvenile Justice: Repairing the Harm of Youth Crime, Criminal Justice: Monsey, New York.

Braithwaite, J. (2000), Restorative Justice and Social Justice, Saskatchewan Law Review, Vol. 63.

———(2002a), In Search of Restorative Jurisprudence, in L. Walgrave (ed.), Restorative Justice and the Law, Willan: Devon, UK.

———(2002b), Restorative Justice and Responsive Regulation, Oxford Uni-versity Press: New York.

Burford, G. and Adams, P. (2004), Restorative Justice, Responsive Regulation and Social Work, Journal of Sociology and Social Welfare, Vol. 31, No. 1, pp. 7-26.

Chan, C.P. and Leung, B. (2000), The Voting Propensity of Hong Kong Chris-tians, Journal for the Scientific Study of Religion, Vol. 39, pp. 297-306.

Chen, C. and Huang, T. (2004), The Emergence of a New Type of Christians in China Today, Review of Religious Research, Vol. 46, pp. 183-200.

Chen, X. (2004), Social and Legal Control in China: A Comparative Perspec-tive, International Journal of Offender Therapy and Comparative Crimi-nology, Vol. 48, pp. 523-36.

Chung, H.K. (1993), Struggle to be the Sun Again: Introducing Asian Women’s Theology, Orbis: New York.

Contursi, J.A. (1993), Political Theology: Text and Practice in a Dalit Panther Community, The Journal of Asian Studies, Vol. 52, pp. 320-39.

Crawford, A. (2003), The State, Community, and Restorative Justice, in L. Walgrave (ed.), Restorative Justice and the Law, Willan: Portland, OR.

Cua, A. (2003), The Ethical Significance of Shame: Insights of Aristotle and Xunzi, Philosophy East and West, Vol. 53, pp. 147-202.


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Davidson, R. and Wang, Z (2000), The Court System in the People’s Republic of China with a Case Study of a Criminal Trial, in O.N.I. Ebbe (ed.), Comparative International Criminal Justice Systems: Policing Systems: Policing Judiciary Corrections, Butterworth-Heinemann, Boston, MA.

Ejaz, F.K. (1991), Self-determination: Lessons to be Learned from Social Work Practice in India, British Journal of Social Work, Vol. 21, pp. 127-42.

Feuchtwang, S. (2001), Popular Religion in China: The Imperial Metaphor, Routledge: Oxford, UK.

Goldberg, C.E. (1997) Overextended Borrowing: Tribal Peacemaking Applied in Non-Indian Disputes, Washington Law Review, Vol. 72.

Hollenbach, D. (1979), Claims in Conflict: Retrieving and Renewing the Catho-lic Human Rights Tradition, Paulist: New York.

———(2002), The Common Good and Christian Ethics, Cambridge University Press: New York.

Hyun, Y.H. (1985), Minjung: The Suffering Servant and Hope, Inter-Religio, Vol. 2.

IASSW and IFSW (2004), Global Standards for Social Work Education and Training, Final Document Adopted at the General Assemblies of IASSW and IFSW, Adelaide, Australia.

McCold, P. (1996), Restorative Justice and the Role of Community, in B. Gala-way and J. Hudson (eds.), Restorative Justice: International Perspectives, Criminal Justice: Monsey, NY.

Nam, S.K. (2004), Confucian Familism and Its Social/Religious Embodiment in Christianity: Reconsidering the Family Discourse from a Feminist Per-spective, Asia Journal of Theology, Vol. 18.

Office of Juvenile Justice and Delinquency Prevention, OJJDP (1996), Balanced Restorative Justice Project, Finding from the National Survey on Restorative Conferencing for Youth, No. 4.56 and 4.57.

O’Neill, O. (1996), Toward Justice and Virtue, Cambridge University Press: Cambridge, UK.

Pepinsky, H.E. and Quinney, R. (eds.) (1991), Criminology as Peacemaking, Indiana University Press: Bloomington, IN.

Schiff, M. and Bazemore, G. (2002), Understanding Restorative Justice Con-ferencing, Balanced and Restorative Justice Project, Florida Atlantic Uni-versity, Fort Lauderdale, FL.

Tay, C.N. (1976), Kuan-Yin: The Cult of Half Asia, History of Religions, Vol. 16, pp. 147-75.


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Van Ness, D. (1993), New Wine and Old Wineskins: Four Challenges of Restorative Justice, Criminal Law Forum, Vol. 3, pp. 251-76.

———(2003), Creating Restorative Justice Systems, in L. Walgrave (ed.), Restorative Justice and the Law, Willan: Portland, OR.

Van Ness, D. and Strong, K.H. (2006), Restoring Justice: An Introduction to Restorative Justice, Anderson: Cincinnati, OH.

Vides Saade, M. (2006), Entertaining Angels Con Pasión, University of Detroit Mercy Law Review, pp. 901-22.

Walgrave, L. (2000), How Pure Can a Maximalist Approach to Restorative Justice Remain? Or Can a Purist Model of Restorative Justice Become Maximalist?, Contemporary Justice Review: Issues in Criminal, Social and Restorative Justice, Vol. 3, No. 4, pp. 415-32.

———(2005), Imposing Restoration Instead of Inflicting Pain, in A. Bottoms et al. (eds.), Restorative Justice and Criminal Justice: Competing or Re-concilable Paradigms?, Hart: Oxford, UK.

Wing Lo, T. and Harris, R.J. (2004), Community Service Orders in Hong Kong, England and Wales: Twins or Cousins, International Journal of Offender Therapy and Comparative Criminology, Vol. 48, pp. 373-88.

Wong, K. (2002), The Meaning of “Suffering” Amongst Chinese Australian Women Who Stay in Violent Domestic Relationships, in D. Gabb and T. Miletic (eds.), Culture, “Race,” and Community: Making It Work in the New Millennium, Victoria Transcultural Psychiatry: Melbourne, Australia.

Zehr, H. (1990), Changing Lenses: A New Focus for Criminal Justice, Herald, Scottsdale, PA.

Zuo, J. (1991), Political Religion: The Case of the Cultural Revolution in China, Sociological Analysis, Vol. 52, pp. 99-110.

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.


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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

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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


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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


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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:


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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:


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(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


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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?


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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.


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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


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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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Bazemore and M. Schiff (eds.), Restorative Community Justice: Repairing Harm Transforming Communities, Anderson: Cincinnati, OH.

Sherman, L. and Strang, H. (2007), Restorative Justice: The Evidence, www. smith-institute.org.uk.

Strang, H. (2002), Repair or Revenge: Victims Restorative Justice, Clarendon: Oxford, UK.

Sullivan, D. and Tifft, L. (2001), Restorative Justice: Healing the Foundations of Our Everyday Lives, Willow Tree Press: Monsey, NY.

Thurman, R.A.F. (2005), Anger, Oxford University Press: New York. Walgrave, L. (2005), Towards Restoration as the Mainstream in Youth Justice,

in E. Elliott and R.M. Gordon (eds.), New Directions in Restorative Jus-tice: Issues, Practice, Evaluation, Willan: Devon, UK.


265

Weber, M. (1958), Class, Status, Party, in H.H. Garth and C.W. Mills (eds.), From Max Weber: Essays in Sociology, Oxford University Press: New York.

———(1986a), Domination by Economic Power by Authority, in S. Lukes (ed.), Power, New York University Press: Washington Square, NY.

———(1986b), Economy and Society, Vol. 1, University of California: Berke-ley, CA.

———(1986c), Economy and Society, Vol. 2, University of California: Berke-ley, CA.

Whitehouse (2006), Biography of President George W. Bush, Whitehouse, 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. Achilles, M., 262. Addams, Jane, 124. Additional Protocols, 168. Afghanistan, 181-82. Africa, 3, 82, 96, 97, 125, 131, 138-

39, 146, 151, 161, 164, 169-86, 194.

African National Congress, 174. Ahimsa, 183, 186, 189, 194. Al-Qaeda, 257. American Nazi Party, 97. Anderson, Benedict, 191. Androff, David, 7, 123. Antodaya, 190. Apartheid, 3. Arendt, H., 254. Argentina, 173. Ashworth, A., 193. Austin, Raymond D., 234.

Australia, 6, 27, 96, 124, 127, 135-36, 177, 210, 249.

Bao-Gu system, China, 117-18. Barnevernsnemnd, 39-40. Bazemore, Gordon, 12, 95, 236,

254-55. Belgium, 27, 179. Benneche, Gerd, 36. Berniers, François, 147. Bernstein, Joan, 106. Berry, Thomas, 209. Besthorn, Fred H., 5, 8, 205-06. Blumenbach, Johann Friedrich,

147. Bolivia, 180, 187. Bose, A., 182. Braithwaite, J., 68, 70, 165, 239. Bratt, Bob, 108. Brazil, 180.

Index

268

Breton, D., 4. Buddha, 4. Bugbee, H., 222. Burns, H., 66. Bush, George W., 257. Cambodia, 48-49, 60. Canada, 3, 27, 167, 197. Carlos Belo, Bishiop, 128. Chan, Victor, 258. Chesney-Lind, M., 65. Child Protective Services, Norway,

38-43. Children, Young Persons and Their

Families Act, New Zealand, 17. Chile, 163, 169, 173, 180. China, 3-5, 8, 14, 16, 24, 28, 97-98,

113-20, 145-47, 150-60, 229-30, 142-46, 249, 258.

Christie, A., 193, 255. CIA, Central Intelligence Agency,

United States, 180. Civil Liberties Act, United States,

103, 105-06, 108. Claims Act, United States, 105-06. Clark, R., 179. Cohen, I.M., 166. Colombia, 180. Communist Party, China, 16, 127,

244, 159. Community Reconciliation Process,

123, 130-40. Community Service Order program,

Hong Kong, 244. Concept of “race,” 145-61. Conferencing, between victims and

offenders, 2, 23, 41, 65-72, 79, 80-89, 99, 236.

Confucianism, 3, 114-16, 119, 242, 245.

Confucius, 3, 115-16, 119, 146. Corrado, R.R., 166. Cosgrove, Peter, 177. Costa Rica, 180. Crawford, Adam, 230. Criminal justice, 2-4, 6, 14-16, 28,

33-34, 40-44, 63-70, 77-86, 94, 98, 114, 118, 130-36, 163-69, 180, 193-97, 209-13, 231-36, 254-60.

Crow, Jim, 149. Cuba, 249. Cultural Revolution, China, 98, 242-

43. Dalai Lama, 8, 253-63. Dalits, 247-48. Daly, K., 68, 70. Dharma, 247. Dine system, 234. Dominican Republic, 180. Du Bois, W.E.B., 152. East Timor, cf Timor Leste. Ecuador, 180. Edwards, R., 255. El Salvador, 8, 180, 230. Elliott, Robert, 218. England, 27, 194, 245. Ethnic reconciliation, 149, 151, 156. European Union, 2, 99. Evacuation Claims Act, United

States, 106. Evens, Wayne, 8, 253. Executive Order 9066, United States,

104, 107. Falck, Sturla, 42. Family group conferencing, 15, 27,

41, 79, 85, 166, 233, 239.

Index

269

Fretilin party, 127. Friskics, S., 220, 222. Gaarder, E., 66. Gaia Hypothesis, 205-06. Galtung, Johan, 187. Gandhi, Mohandas Karamchand

(Mahatma Gandhi), 8, 163-95. Geneva Convention, 168. Geng, K., 3. Genocide Convention, 168. Gilligan, J., 254, 262. Global Environmental Institute, 5. Goel, Rashmi, 69. Grauwiler, P., 66, 70. Green, Ross G., 72 Griffiths, Curt T., 68. Guatemala, 173, 180. Hagen, Gerd, 36. Han-pu-ri, 241, 249. Hårfagre, Harald, 37. Harmony, 2-3, 5, 7, 14-15, 21, 25-26,

95, 113-21, 135, 140, 146, 234, 239-41, 255.

Harris, M.K., 255. Healing circles, 2, 66, 211. Healing, 2, 4, 8, 23, 66, 73, 87-88,

93, 96, 99, 116, 126, 129, 131-32, 164-66, 174-75, 208, 212-13, 234.

Hiranandani, Vanmala, 8, 163. Honduras, 180. Hong Kong, 6, 11-28, 152-53, 158,

229-30, 244-46. Horta, Jose Ramos, 128. Hui, E.C., 3. Human rights, 7, 99, 108-10, 124-30,

138-40, 168-93, 237-38, 248-49, 258.

Hurdle, D., 95-96. Hydle, Ida, 7, 33.

Hyun, Young Hak, 249. IASSW, International Association

for Schools of Social Work, 238. IFSW, International Federation of

Social Work, 238. IMF, International Monetary Fund,

179, 187, 192. India, 8, 151, 182, 187, 190-91, 194,

229, 230, 246-49. Indonesia, 7, 97, 126-40. International Court of Justice, 170. International Criminal Court, 169-71,

189. International Criminal Tribunal for

Rwanda, 170-71, 179. International Criminal Tribunal for

Yugoslavia, 170-71, 178. Iraq, 2, 99, 174, 259. Japanese Americans, 7, 97, 103-10. Jesus, 36, 231, 248. John Paul II, Pope, 127. Johnstone, G., 193, 213. Jonestone, G., 90. Juvenile delinquents, 11-28, 34-45. Karma, 247. Katz, Eric, 218-19. Keefe, T., 206. Korea, 8, 19, 97-98, 229-30, 248-49. Kosovo, 178. Koss, Mary, 64, 69, 71. Koyukon people, 221. Ku Klux Klan, 97. Kurki, L., 79, 90. Latin America, 125, 164, 173, 180,

182, 210. Lee, JoAnn, 7, 47.

Index

270

Lee, Stephen C.K., 7, 113. Lehman, S., 4. Linnaeus, Carolus, 147. Longmont Community Justice

Partnership, Colorado, 82-90. Lovelock, James, 205-06. Loy, D., 4. Macau, 24, 152-53, 158. Mandela, Nelson, 173-74. Mao, Ze-dong, 242. Maori, 69. Marshall, Tony, 164. McNally, D., 179. Mennonites, 3. Merleau-Ponty, Maurice, 221. Mexico, 180. Mills, L., 66, 70. Milosevic, Slobodan, 178. Minow, M., 173. Moon, C., 173. Morocco, 97. Morrison, Robert, 151. Muir, John, 216. Nagel, T., 167. Nam, Soon Kang, 241. Nanjing massacre, 98. National Mediation Service, Norway,

41-42. Native people, 3, 72, 92, 95, 166-67,

172. Navajo system, 234. Neighborhood Accountability Board,

50-51, 53-60. Neiman, S., 254. Netherlands, 97, 249. New Zealand, 3, 6, 17, 27, 67, 69, 72,

124, 167, 210.

Nicaragua, 180. Northern Ireland, 174. Norway, 7, 19, 33-45. Nuremberg trials, 168-70. O’Brien, Sandra, 236. O’Neill, O., 237. Odgers, C., 166. Opium Wars, 150-51, 155, 157-58. Panama, 180. Papua New Guinea, 124. Parekh, B., 184. Parenti, M., 178-79. Peace, 1-3, 7, 19-22, 26, 66, 96-99,

118-19, 124, 128, 134-37, 140, 164-68, 172-89, 194-95, 210-11, 231-35, 257-60.

Peru, 180. Peru, 97, 125. Philippines, 97. Portugal, 127. Positive Youth Development

approach, 50, 60. Presser, L., 66. Prison Fellowship International, 148-

49. Reagan, Ronald, 103. Reconciliation, 1-3, 7, 41, 80, 95, 97,

99, 119, 123-40, 149, 151, 156, 163, 169, 172-76, 181, 185, 211-13, 233, 241.

Red Guard, China, 98. Restitution, 3,6, 40, 54, 90, 114, 171,

175-76, 181, 210, 212, 232-33, 236.

Restorative Justice Project, Santa Clara County, 48-60.

Restorative Justice, 1-263.

Index

271

Roche, D., 177. Roosevelt, Eleanor, 124. Roosevelt, Franklin D., 104. Roosevelt, Theodore, 215. Ross, R., 73. Roy, Arundhati, 188, 191. Rozee, P., 64, 71. Rozman, Gilbert, 118. Rubin, P. 73. Rwanda, 169-71, 179. Santa Clara County, California, 48-

49, 60. Santa Cruz massacre, 128. Sarvodaya, 183, 189-90, 192. Satyagraha, 183-84, 189, 194. Schatz, Mona, 7, 77. Schiff, M., 254-55. School bullying, 2, 6, 12, 18-27. Sentencing circles, 68, 79. September 11, 207, 257. Sierra Leone, 97, 125, 169, 174. Singapore, 27. Smith, M.E., 193. Snyder, J., 169. Strong, K.H., 211. Suharto, General, 128. Sullivan, D., 193, 255. Swaraj, 186. Szto, Peter, 7, 145. Taiwan, 24, 97. Takahashi, Rita, 7, 103. Thailand, 2. Third World, 172, 178, 181, 187,

192. Thurman, R.A.F., 256, 261. Tibet, 4, 257-59. Tifft, L., 193, 255. Tikkun, 3.

Timor Leste, 7, 97, 123-40, 169, 174, 176-77.

Toit, A.D., 175, 184. Tokyo trials, 168-70. Truth and reconciliation commission,

El-Salvador, 8, 180. Truth and reconciliation commission,

South Africa, 3, 173-76. Truth and reconciliation commission,

Timor Leste, 7, 123-40. Tutu, Desmond, 174-75. Umbreit, M., 12, 63, 95. United Kingdom, 19, 37, 150-51,

155, 179. United Nations, 2, 7, 98-99, 124, 168,

170, 181, 249, 257, 259. United States, 7, 77, 80, 97-99, 103-

07, 110, 149, 157, 171, 230, 147, 257.

Universal Declaration of Human Rights, United Nations, 99, 124, 168.

Ursua, Rhodora, 7, 47. US Commission on Wartime

Relocation and Internment of Civilians, 106-08.

Ustvedt, Yngvar, 35. Van Ness, Daniel, 28, 211, 235. Van Wormer, Katherine, 1, 38-40,

43, 63, 65, 93, 206, 210-11. Vasudhaiva Kutumbakam, 190-91. Vermont model, 93-95. Victim-offender meditation, 17, 23,

41, 65-66, 79, 99, 166, 232-34, 236.

Vides Saade, Marta, 8, 229. Vinjamuri, L., 169.

Index

272

Wales, 27, 245. Walgrave, Lode, 236. Wang, Youqin, 98. Watchel, Ted, 24. Weber, Max, 255. Whole-school restorative approach,

Hong Kong, 19-21, 24-27. Wong, Dennis, 6, 11. World bank, 179, 187, 192. Worldwatch Institute, 5.

WTO, World Trade Organization, 180, 187, 192.

Xunzi, 242. Yoder, Perry H., 231. Young Bear, Jerry, 6. Yugoslavia, 169-71, 178-79. Zehr, Howard, 3, 78, 231, 262. 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.

About the Contributors

274

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.

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